Case No. VFA-0306, 26 DOE ¶ 80,210

August 14, 1997

DECISION AND ORDER

OF THE DEPARTMENT OF ENERGY

Appeal

Name of Petitioner: David R. Berg

Date of Filing: July 16, 1997

Case Number: VFA-0306

On July 16, 1997, David R. Berg, through his attorney, filed an Appeal from a determination issued to him on May 28, 1997, by the Office of Human Resources (HR) of the Department of Energy (DOE). The determination responded to a request for information filed under the Privacy Act, 5 U.S.C. § 552a, as implemented by the DOE in 10 C.F.R. Part 1008.

The Privacy Act requires each federal agency to, inter alia, permit an individual to gain access to information about that individual which is contained in any "system of records" maintained by the agency. 5 U.S.C. § 552a(d); 10 C.F.R. § 1008.6(a)(2). Also relevant to the present Appeal is the Freedom of Information Act (FOIA), 5 U.S.C. § 552, as implemented by the DOE in 10 C.F.R. Part 1004. The FOIA generally requires that documents held by the federal government be released to the public upon request. However, Congress has provided nine exemptions to the FOIA that set forth the types of information agencies are not required to release. Under the DOE's regulations, a document exempt from disclosure under the FOIA shall nonetheless be released to the public whenever the DOE determines that disclosure is not contrary to federal law and in the public interest. 10 C.F.R. § 1004.1.

I. Background

On February 26, 1997, Mr. Berg filed a request under the provisions of the Privacy Act and the FOIA in which he sought information related to a conversation between himself and another individual. Specifically, Mr. Berg identified four documents written by employees of the Waste Policy Institute, a DOE contractor, and the DOE.

HR issued a determination on May 28, 1997, in which it stated that it located a number of documents responsive to Mr. Berg's request. However, HR withheld these documents in their entirety, citing subsection (d)(5) of the Privacy Act which exempts from disclosure "information compiled in reasonable anticipation of a civil action or proceeding." 5 U.S.C. § 552a(d)(5); 10 C.F.R. §1008.9(a)(2). HR also withheld these documents under FOIA Exemptions 5, 6 and 7 and stated that it is not in the public interest to provide the requested documents. See Determination Letter at 1.

On July 16, 1997, Mr. Berg filed the present Appeal with OHA contending: (1) that HR did not adequately explain the basis upon which the responsive documents were withheld under subsection (d)(5) of the Privacy Act and (2) that HR improperly relied upon FOIA Exemptions 5, 6, and 7. Mr. Berg asks that the OHA direct HR to release the responsive documents.

II. Analysis

The Privacy Act exempts from release "any information compiled in reasonable anticipation of a civil action or proceeding." 5 U.S.C. § 552a(d)(5). The exemption "is not limited to an attorney's work product, but extends to any records compiled by counsel or other persons in reasonable anticipation of a civil action or proceeding." Hernadez v. Alexander, 671 F.2d 402, 408 (10th Cir. 1982) (citing Smietra v. Department of Treasury, 447 F. Supp. 221, 227-28 (D.D.C. 1978)). Information that is exempt from disclosure under the Privacy Act must be released to a requester unless it is also exempt from disclosure under the FOIA. 5 U.S.C. § 552a(t)(2). Thus, it is the general practice of the DOE to process a request by an individual for information about that individual under both the Privacy Act and the FOIA. Even if a requester specifically requests records under the Privacy Act, it well serves administrative efficiency and the requester to process the request under the FOIA as well, rather than requiring the requester to file a separate FOIA request for the same record.

The FOIA requires that documents held by federal agencies generally be released to the public upon request. Following an appropriate request, agencies are required to search their records for responsive documents. After conducting a search for responsive documents under the FOIA, the statute requires that the agency provide the requester with a written determination notifying the requester of the results of that search, and if applicable, of the agency's intentions to withhold any of the responsive information under one or more of the nine statutory exemptions to the FOIA. 5 U.S.C. § 552(a)(6)(A)(I). The statute further requires that the agency inform the requester of its right "to appeal to the head of the agency any adverse determination." Id.

The written determination letter serves to inform the requester of the results of the agency's search for responsive documents and of any withholdings that the agency intends to make. In doing so, the determination letter allows the requester to decide whether the agency's response to its request was adequate and proper and provides this office with a record upon which to base its consideration of an administrative appeal.

It therefore follows that the agency has an obligation to ensure that its determination letters: (1) adequately describe the results of the searches; (2) clearly indicate which information was withheld, and (3) specify the exemption(s) under which information was withheld. Burlin McKinney, 25 DOE ¶ 80,205 at 80,797 (1996). Without an adequately informative determination letter, the requester and the review authority must speculate about the adequacy and appropriateness of the agency's determinations. Id.

In the present case, HR withheld responsive documents under Exemptions 5, 6, and 7 of the FOIA as well as subsection (d)(5) of the Privacy Act. In its determination letter, HR provided Mr. Berg with generic explanations regarding the exemptions applied to the responsive documents. We find these explanations to be insufficiently informative and short of what is legally required.

It is well established that a FOIA determination must contain a reasonably specific justification for withholding material pursuant to a FOIA request. See Deborah L. Abrahamson, 23 DOE ¶ 80,147 (1993). A specific justification is necessary to allow this Office to perform an effective review of the initial agency determination and to permit the requesting party to prepare a reasoned appeal. Instead, HR has merely restated the languages of Exemptions 5, 6, and 7 as well as subsection (d)(5) of the Privacy Act, without adequately explaining the reasons why HR concluded that the responsive documents are exempt from disclosure under the provisions of the FOIA and the Privacy Act. Furthermore, we note that there does not appear to have been any attempt to segregate and release possibly non-exempt information from exempt information in any of the withheld documents.

Accordingly, we shall remand this matter to HR to either release to Mr. Berg all of the documents responsive to his request or to issue a new determination adequately supporting the withholding of the documents. If a new determination is issued, HR should include a statement of the reason for denial, a specific explanation of how the exemptions apply to the documents withheld and a statement why discretionary release is not appropriate. See 10 C.F.R. § 1004.7(b)(1). HR should further review each document for the possible segregation of non-exempt material. See 10 C.F.R. § 1004.7(b)(3).

It Is Therefore Ordered That:

(1) The Appeal filed by David R. Berg, OHA Case No. VFA-0306, on July 16, 1997, is hereby granted in part as set forth below in Paragraph (2) and denied in all other respects.

(2) This matter is hereby remanded to the Office of Human Resources and Administration of the Department of Energy which shall either release the responsive documents withheld in its May 28, 1997 Determination or issue a new determination in accordance with the instructions set forth above.

(3) This is a final Order of the Department of Energy from which any aggrieved party may seek judicial review pursuant to the provisions of 5 U.S.C. § 552(a)(4)(B). Judicial review may be sought

in the district in which the requester resides or has a principal place of business, or in which the agency records are situated, or in the District of Columbia.

George B. Breznay

Director

Office of Hearings and Appeals

Date: August 15, 1997