Case No. VFA-0310, 26 DOE ¶ 80,214

August 19, 1997

DECISION AND ORDER

OF THE DEPARTMENT OF ENERGY

Appeal

Name of Petitioner:Information Focus on Energy, Inc.

Date of Filing:July 22, 1997

Case Number:VFA-0310

On July 22, 1997, Information Focus on Energy, Inc. (IFE) filed an Appeal from a June 17, 1997 determination by the Director of the Office of Public Affairs (Director) of the Albuquerque Operations Office of the Department of Energy (DOE). In that determination, the Director partially granted a request for information filed by the Appellant under the Freedom of Information Act (FOIA), 5 U.S.C. § 552, as implemented in 10 C.F.R. Part 1004. In its Appeal, IFE asks that we order a search for additional responsive documents. In addition, IFE requests that the DOE release the names of Sandia National Laboratories employees that the DOE redacted from documents it provided to IFE.

The FOIA requires that federal agencies generally release documents to the public upon request. The FOIA, however, lists nine exemptions that set forth the types of information that an agency may withhold at its discretion. 5 U.S.C. § 552(b); 10 C.F.R. § 1004.10(b). The DOE regulations further provide that the DOE release to the public a document exempt from mandatory disclosure under the FOIA whenever the DOE determines that disclosure is in the public interest and not contrary to other laws. 10 C.F.R. § 1004.1.

I. Background

In its request for information, IFE sought copies of documents containing "[t]he initial written notification and/or report from Sandia National Laboratory contractor of the December 7, 1996 shutdown of the Annular Core Research Reactor" and "[a]ny Albuquerque Operations Office notes, memos, letters or electronic records reflecting initial receipt of verbal and written information of the event." In the June 17, 1997 determination letter, the Director enclosed two copies of a December 20, 1996 Occurrence Report No. ALO-KO-SNL-9000-1996-0009 (the copies originated from different offices), and a copy of a December 23, 1996 letter from Sandia National Laboratories-

New Mexico (SNL/NM) to Mike Zamorski, Area Manager of the Kirtland Area Office of the DOE, with names of SNL/NM employees deleted pursuant to 5 U.S.C. § 552(b)(6).

In its appeal, IFE first argues that the Director did not identify any information responsive to the second item of its request for "notes, memos, letters or electronic records." IFE contends that the DOE facility representative whose name the DOE redacted in the SNL/NM letter may have made notes relating to the information in the letter. Second, IFE objects to the deletion of names. IFE argues that the DOE should release the names since the public must be able to hold Sandia employees personally and publicly accountable for potentially important safety and health infractions. IFE states that withholding names protects culpable employees and their managers when they have failed to provide adequate safety.

II. Analysis

A. Adequacy of the Search

Following an appropriate request, the FOIA requires agencies to search their records for responsive documents. We have stated on numerous occasions that a FOIA request deserves a thorough and conscientious search for responsive documents, and we have not hesitated to remand a case where it is evident that the search conducted was in fact inadequate. See, e.g., Hideca Petroleum Corp., 9 DOE ¶ 80,108 (1981); Charles Varon, 6 DOE ¶ 80,118 (1980). In cases such as these, "[t]he issue is not whether any further documents might conceivably exist but rather whether the government's search for responsive documents was adequate." Perry v. Block, 684 F.2d 121, 128 (D.C. Cir. 1982) (emphasis in original).

To determine whether an agency's search was adequate, we must examine its actions under a "standard of reasonableness." McGehee v. CIA, 697 F.2d 1095, 1100-01 (D.C. Cir. 1983), modified in part on rehearing, 711 F.2d 1076 (D.C. Cir. 1983). This standard "does not require absolute exhaustion of the files; instead, it requires a search reasonably calculated to uncover the sought materials." Miller v. Department of State, 779 F.2d 1378, 1384-85 (8th Cir. 1985). Furthermore, the determination of whether a search was reasonable is "dependent upon the circumstances of the case." Founding Church of Scientology v. National Security Agency, 610 F.2d 824, 834 (D.C. Cir. 1979).

In reviewing the Appeal, we contacted a representative of the Director to ascertain the validity of IFE's contention that there may exist responsive information because the Director did not address in his determination letter any information related to the portion of the IFE request concerning "Albuquerque Operations Office notes, memos, letters or electronic records." A representative for the Director informed us that, in the Director's determination letter, the Director did not separately address the second item because he believed the documents provided to IFE were responsive to both parts of IFE's request, not exclusively IFE's first item. The Director stated that he provided all of the responsive documents found after searching six Albuquerque Operations Office divisions. Since IFE has given us no further information in support of its position, and we have no reason to believe that additional responsive documents exist, we must deny this portion of IFE's Appeal.

B. Exemption 6

Exemption 6 shields from disclosure "personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy." 5 U.S.C. § 552(b)(6); 10 C.F.R. § 1004.10(b)(6). The purpose of Exemption 6 is to "protect individuals from the injury and embarrassment that can result from the unnecessary disclosure of personal information." Department of State v. Washington Post Co., 456 U.S. 595, 599 (1982) (Washington Post). Furthermore, the term "similar files" has been interpreted broadly by the Supreme Court to include all information that "applies to a particular individual." Washington Post, 456 U.S. at 602. Pursuant to established legal precedent, there is no doubt that the names of individuals redacted in this case qualify as "similar files" under Exemption 6.

In order to determine whether a record may be withheld pursuant to Exemption 6, an agency must undertake a three-step analysis. First, the agency must determine whether or not its disclosure of the records would invade a significant privacy interest. If the agency does not identify a privacy interest, it may not withhold the record pursuant to Exemption 6. Ripskis v. Department of Hous. and Urban Dev., 746 F.2d 1, 3 (D.C. Cir. 1984) (Ripskis). Second, the agency must determine whether or not release of the document would further the public interest by shedding light on the operations and activities of the government. See Department of Justice v. Reporters Comm. for Freedom of the Press, 489 U.S. 749, 773 (1989) (Reporters Comm.). See also Joyce E. Economus, 23 DOE ¶ 80,182 (1994). Finally, the agency must weigh the privacy interests it has identified against the public interest in order to determine whether the release of the record would constitute a clearly unwarranted invasion of personal privacy. Ripskis, 746 F.2d at 3.

We have consistently found that names, by themselves, reveal nothing private about a person and, therefore, are not the type of information that creates a protected privacy interest for the purpose of Exemption 6. See, e.g., The News Tribune, 25 DOE ¶ 80,181 at 80,700 (1996). A privacy interest exists only when an individual's name is linked with some other piece of information that "reveals something personal about an individual." Id. at 80,699. In an Exemption 6 analysis, we must examine any linkage of information involved to determine the extent of any privacy interest. In this case, the link concerns DOE and contractor employee names and their knowledge or actions surrounding the December 7, 1996 shutdown of the Annular Core Research Reactor.

We find that the Director has not sufficiently demonstrated a link between the redacted names and any identifiable privacy interest for each of these individuals. It appears that some of the redacted names are DOE personnel whose only connection with the December 20, 1996 responsive report concerning the reactor shutdown may have been that their names were on the distribution list to receive a copy of the report. If our speculation is correct, then it would be difficult to imagine that these individuals would have an identifiable privacy interest concerning the reactor shutdown since they may have only read the report. Other redacted names appear to be of individuals who had direct knowledge of the reactor shutdown. Even these individuals must have a link to information that "reveals something personal" about them in order for there to be a privacy interest. Id. Since the Director did not articulate a privacy interest for each of the individuals whose names he redacted, we must remand this case to him to either release the names of these individuals or provide a detailed explanation for withholding that includes a description pursuant to Exemption 6 of the applicable privacy interest for each of the individuals whose names he withheld. Once the Director has performed this privacy interest analysis, he must then perform the public interest test as described above. Finally, also as described above, the Director must perform the balancing test to weigh any privacy interests he has identified against the public interest in disclosure of the names.

It Is Therefore Ordered That:

(1) The Appeal filed by Information Focus on Energy, Inc. on July 22, 1997 is hereby granted as set forth in paragraph (2) below.

(2) This matter is remanded to the Director of the Office of Public Affairs of the Albuquerque Operations Office for further action in accordance with the directions set forth in this Decision.

(3) This is a final order of the Department of Energy from which any aggrieved party may seek judicial review. 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 19, 1997