Case No. VFA-0312, 26 DOE ¶ 80,208

August 8, 1997

DECISION AND ORDER

OF THE DEPARTMENT OF ENERGY

Appeal

Name of Petitioner:Charles L. Wilkinson, III

Date of Filing: July 14, 1997

Case Number: VFA-0312

On July 14, 1997, Charles L. Wilkinson (Wilkinson) filed an Appeal from a final determination the Savannah River Operations Office (SR) of the Department of Energy (DOE) issued to him on June 11, 1997. In that determination, SR partially granted a request for information that Wilkinson filed under 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 requires that a federal agency generally release documents to the public upon request. The FOIA, however, lists nine exemptions that set forth the types of information that a federal agency may withhold at its discretion. 5 U.S.C. § 552(b); 10 C.F.R. § 1004.10(b).

I. Background

In his request for information, Wilkinson sought all records in 70 categories of information relating to the utilization of non-union labor at the landfill and the "D-Area Powerhouse" at the DOE's Savannah River Site near Aiken, South Carolina, as well as information regarding layoffs and cost savings effected at those sites.(1) In its final determination, SR identified over 500 responsive documents and released numerous documents in their entirety. SR withheld portions of 21 documents pursuant to Exemptions 3, 4, 5 and 6. SR also withheld 69 documents in their entirety pursuant to Exemption 5. With regard to the documents withheld in their entirety pursuant to Exemption 5, SR stated that these documents are predecisional documents protected by the deliberative process privilege and that the public interest in disclosure would be outweighed by the chilling effect such disclosure would have on the willingness of DOE or DOE contractor employees to make honest and open recommendations in the future. In addition, for 33 of the categories of requested information, SR did not provide a list of any responsive documents.

In his Appeal, Wilkinson challenges the determination made regarding 17 of the documents withheld in their entirety pursuant to Exemption 5. (2) Specifically, Wilkinson asserts that one of the documents, Document No. 3/5, appears to be the minutes of a public meeting and can not be a predecisional deliberative document. Another document, Document No. 3/23, Wilkinson goes on to state, appears to be related to minutes of a "public authority" and thus was improperly withheld. With regard to Document No. 45/4, Wilkinson asserts that this draft letter was sent to the addressee, Mr. Edgar West, and that since the draft letter was deemed important enough to keep it should be provided to him. Additionally, Wilkinson asserts that SR withheld Document Nos. 64/1, 64/2, 64/5, 64/15, 64/16, 64/18, 64/21, 64/28, 64/29 and 64/30, all inter-office memoranda, simply to prevent embarrassment due to their subject matter. With regard to the remaining withheld documents, Wilkinson argues that each is directly relevant to his request and should thus be released. Wilkinson also challenges the adequacy of the search made for 17 categories of requested documents. (3)For these categories, Wilkinson states that SR did not issue any response regarding the existence of responsive documents in its final determination letter.

II. Analysis

A. Exemption 5

Exemption 5 of the FOIA exempts from mandatory disclosure documents that are "inter-agency or intra-agency memorandums or letters which would not be available by law to a party other than an agency in litigation with the agency." 5 U.S.C. § 552(b)(5); 10 C.F.R. § 1004.10(b)(5). The Supreme Court has held that this provision exempts "those documents, and only those documents, normally privileged in the civil discovery context." NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 149 (1975) (Sears) (footnote omitted). The courts have identified three traditional privileges that fall under this definition of exclusion: the attorney-client privilege, the attorney work-product privilege and the executive "deliberative process" or "predecisional" privilege. Coastal States Gas Corp. v. Department of Energy, 617 F.2d 854, 862 (D.C. Cir. 1980) (Coastal States). Only the "deliberative process" privilege is at issue here.

The "deliberative process" privilege of Exemption 5 permits the government to withhold documents that reflect advisory opinions, recommendations, and deliberations comprising part of the process by which government formulates decisions and policies. Sears, 421 U.S. at 150. The ultimate purpose of the exemption is to protect the quality of agency decisions by promoting frank and independent discussion among those responsible for making governmental decisions. Sears, 421 U.S. at 151. See EPA v. Mink, 410 U.S. 73, 87 (1973) (quoting Kaiser Aluminum & Chem. Corp. v. United States, 157 F. Supp. 939, 946 (Ct. Cl. 1958)) (Mink).

In order for Exemption 5 to shield a document, it must be both predecisional, i.e., generated before the adoption of agency policy, and deliberative, i.e., reflecting the give-and-take of the consultative process. Coastal States, 617 F.2d at 866. The exemption thus covers documents that reflect, among other things, the personal opinion of the writer rather than the final policy of the agency. Id. Even then, however, the exemption only covers the subjective, deliberative portion of the document. Mink, 410 U.S. at 87-91. An agency must disclose factual information contained in the protected document unless the factual material is "inextricably intertwined" with the exempt material. Soucie v. David, 448 F.2d 1067, 1077 (D.C. Cir. 1971).

(i) Document Nos. 3/19, 3/23, 11/1a.1, 19/2, 45/4, 64/1, 64/2, 64/5, 64/15, 64/16, 64/18, 64/21, 64/28, 64/29 and 64/30

With regard to Document Nos. 3/19, 3/23, 11/1a.1, 19/2, 45/4 64/1, 64/2, 64/5, 64/15, 64/16, 64/18, 64/21, 64/28, 64/29 and 64/30, we have reviewed each of these documents and find that they contain information that is predecisional and deliberative pursuant to Exemption 5. As discussed below, each of these documents contains opinions of various DOE employees, the disclosure of which would discourage open, frank discussions by these individuals. Nevertheless, each of these documents, with the exception of Document No. 11/1a.1, also has a small amount of releasable information such as memorandum headings and/or segregable non-deliberative factual information. On remand, SR must release this information or provide a detailed explanation for its withholding. Because we have determined that Exemption 5 was properly applied to most of the material in these documents, we must reject Wilkinson's argument that no valid reason exists to withhold these documents.

Document No. 3/19 contains a summary of a committee meeting of DOE personnel at which comments were made regarding the suitability of various sites at SR for construction of a landfill and related facilities. Document No. 3/23 consists of an inter-office memorandum titled "Subject: Meeting Minutes" regarding a meeting a DOE employee had with the TRA and the Lower Savannah Council of Governments (LSCOG) and the events that transpired at that meeting. Wilkinson is correct that Document No. 3/23 discusses a meeting involving a public agency. However, this document also contains the DOE employee's impressions and opinions regarding various TRA proposals regarding the creation of a regional landfill on property supplied by DOE. These opinions are predecisional and deliberative and protected by Exemption 5. Document No. 19/2 contains a DOE employee's opinion regarding the potential effect on DOE contractor employee jobs of the DOE privatizing power production at SR. In sum, each of the documents described above is predecisional and deliberative.

Document Nos. 64/2 and 64/5 contain DOE employee opinions concerning the possible involvement of the State of South Carolina in regulating OSHA functions at the D-Area Powerhouse. Document Nos. 64/16, 64/18 and 64/21 contain DOE employee comments and opinions regarding issues pertaining to privatizing the SR Powerplant operations. Document Nos. 64/1, 64/28, 64/29 and 6/30 contain DOE employee comments and opinions regarding various potential environmental issues involving the D-Area Powerhouse. Document No. 6/15 contains comments from a DOE employee regarding a proposed draft version of a lease agreement with SCE&G. All of these documents are clearly predecisional and deliberative in their nature and their release could inhibit honest communication and evaluations by DOE employees in the future.

Document Nos.11/1a.1 and 45/4 are draft copies of various documents. Document No. 11/1a.1 is a draft of a proposed cost sharing agreement to be entered into between the DOE and the TRA to establish a waste management center. This cost sharing agreement, as described by Document No. 11/1a.1, was not adopted into a final agreement. As such, Document No. 11/1a.1 consists of a proposed version of a cost sharing agreement. Thus, the entire document represents a predecisional, deliberative, recommendation that is protected by Exemption 5. Document No. 45/4 is a draft of a letter to be sent to Edgar West pertaining to the applicability of the Davis-Bacon Act (DBA) to projects at DOE's Savannah River Site. This document presents analysis regarding whether different projects fall within the ambit of the DBA. The letter, contrary to Mr. Wilkinson's assertion, was never put in final form to be sent to the addressee. Thus, the analysis represents a predecisional, deliberative, recommendation as to the DOE's position at the time of the draft letter regarding the applicability of the DBA. However, this draft document does contain segregable non-deliberative factual material that SR should release or provide a detailed explanation for withholding. See Anibal L. Taboas, 25 DOE ¶ 80,207 (1996).

(ii) Document No. 3/5

SR has requested that it be given another opportunity to review Document No. 3/5 and to issue another determination regarding that document. We will grant that request.

(iii) The Public Interest in Disclosure

The DOE regulations provide that the DOE should release to the public material exempt from mandatory disclosure under the FOIA if the DOE determines that federal law permits disclosure and it is in the public interest. 10 C.F.R. § 1004.1. Notwithstanding our finding that SR properly applied Exemption 5 to most of the requested information, we must consider whether the public interest nevertheless demands disclosure pursuant to 10 C.F.R. § 1004.1. In applying this regulation, we note that the Department of Justice has reviewed its administration of the FOIA and adopted a "foreseeable harm" standard for defending FOIA exemptions. Memorandum from the Attorney General to Heads of Departments and Agencies, Subject: The Freedom of Information Act (October 4, 1993) (Reno Memorandum). The Reno Memorandum indicates that whether or not there is a legally correct application of an exemption, it is the policy of the Department of Justice to defend the assertion of a FOIA exemption only in those cases where the agency articulates a reasonably foreseeable harm to an interest protected by that exemption. See Reno Memorandum at 1, 2. In the present case, the requested information consists of the opinions of individuals regarding different aspects of DOE's decisions regarding the privatization of power production from the D-Area Powerhouse and construction of a landfill by the TRA on DOE property. The release of this information would in our opinion have a chilling effect on the willingness of employees and managers to make candid statements of opinion. Employees and managers would be less likely to communicate their opinions if they knew or suspected that an agency would release their opinions to the public. Consequently, we find that this harm satisfies the reasonably foreseeable harm standard articulated by the Attorney General and that the release of the material protected pursuant to Exemption 5 contained in the requested documents would not be in the public interest.

B. Document No. 60/1g.2

Document No. 60/1g.2 is a copy of a completed Westinghouse Savannah River Company (WSRC) Make or Buy Decision Form for the production of steel burial boxes which SR withheld in its entirety pursuant to Exemption 5. The document contains financial information supplied by WSRC relating to the decision whether to contract for or make steel burial boxes. In investigating the facts of this case, however, we were informed that this document was found at the WSRC office at the Savannah River Site and that the document was not in the possession of SR. See memorandum of telephone conversation between Pauline Conner, SR, and Richard Cronin, OHA (August 1, 1997). Further, we were informed that the financial information contained in this document was confidential and proprietary. Id. Given these facts, it appears that there is a possibility that this document may not be an agency record for the purposes of the FOIA. If the document is not an agency record, then it is not subject to release pursuant to the FOIA and all arguments pertaining to the applicability of Exemption 5 are moot. Consequently, we will review this document to determine if it is an agency record subject to release under the FOIA.

The statutory language of the FOIA does not define the essential attributes of "agency records," but merely lists examples of the types of information agencies must make available to the public. See 5 U.S.C. § 552(a). In interpreting this phrase, we have applied a two-step analysis fashioned by the courts for determining whether documents that did not originate with the federal government are subject to the FOIA. See, e.g., BMF Enterprises, 21 DOE ¶ 80, 127 (1991); William Albert Hewgley, 19 DOE ¶ 80,120 (1989); Judith M. Gibbs, 16 DOE ¶ 80,133 (1987) (Gibbs). That analysis involves a determination of (i) whether the entity that is in possession of the documents is an "agency" for purposes of the FOIA and, if not, (ii) whether the requested material is nonetheless an "agency record." See Gibbs, 16 DOE at 80,595.

The FOIA defines the term "agency" to include any "executive department, military department, Government corporation, Government controlled corporation, or other establishment in the executive branch . . . , or any independent regulatory agency." 5 U.S.C. § 552(f). The courts have identified certain factors to consider in determining whether we should regard an entity as an agency for purposes of federal law. In United States v. Orleans, 425 U.S. 807 (1976), a case that involved a statute other than the FOIA, the Supreme Court defined the conditions under which a private organization must be considered a federal agency as follows: "[T]he question here is not whether the . . . agency receives federal money and must comply with federal standards and regulations, but whether its day-to-day operations are supervised by the Federal Government." Id. at 815. In other words, an organization will be considered a federal agency only where its structure and daily operations are subject to substantial federal control. See Ciba-Geigy Corp. v. Matthews, 428 F. Supp. 523, 528 (S.D.N.Y. 1977). Subsequently, the Supreme Court ruled that the Orleans standard provides the appropriate basis for ascertaining whether an organization is an "agency" in the context of a FOIA request for "agency records." Forsham v. Harris, 445 U.S. 169, 180 (1980) (Forsham). See also Washington Research Project, Inc. v. HEW, 504 F.2d 238, 248 (D.C. Cir. 1974); cert. denied, 421 U.S. 963 (1975) (degree of independent governmental decision-making authority considered); Rocap v. Indiek, 539 F.2d 174 (D.C. Cir. 1976).

Under its contractual relationship with the DOE, WSRC is responsible for managing and operating the facilities at the DOE's Savannah River Site. While the DOE exercises general control over WSRC's management of those facilities, it does not supervise WSRC's day-to-day operations. We therefore conclude that WSRC is not an "agency" subject to the FOIA.

Although WSRC is not an agency for the purposes of the FOIA, Document No. 60/1g.2 could become an agency record if the DOE obtained the document and it was within the DOE's control at the time that Wilkinson made his FOIA request. Department of Justice v. Tax Analysts, 492 U.S. 136, 144-46 (1989); see Kissinger v. Reporters Comm. for Freedom of the Press, 445 U.S. 136 (1980); Forsham, 445 U.S. at 182. In this case, we have determined that the DOE never obtained the document at issue, and the document was not in the agency's control at the time of the appellant's request. See memorandum of telephone conversation between Pauline Conner, SR, and Richard Cronin, OHA (August 1, 1997). Based on these facts, Document No. 60/1g.2 clearly does not qualify as an "agency record" under the test set forth by the federal courts. See Tax Analysts, 492 U.S. at 145-46; see also Forsham, 445 U.S. at 185-86.

Even though Document No. 60/1g.2 is not an agency record, it may still be subject to release if the contract between DOE and WSRC provides that the document in question is the property of the DOE. 10 C.F.R. 1004.3(e)(1). We must therefore look to the contract between SR and WSRC to determine the status of this document. That contract states that "[e]xcept as is provided in paragraph b of this clause, all documents acquired or generated by the Contractor in the performance of this contract shall be the property of the Government. . . ." Paragraph (b) sets forth nine categories of records that are the property of WSRC, including "Confidential Contractor financial information. . . ." and "Non-accounting records relating to any procurement action by the Contractor. . . . " Contract No. DE-AC09-96SR18500, Section H.27. Thus, because Document No. 60/1g.2 is a document containing confidential WSRC financial information as well as information relating to a procurement action, it is a WSRC record under the contract and is not subject to release under the DOE regulations.

C. Adequacy of Search

The FOIA requires that federal agencies generally release documents to the public upon request. 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).

As stated earlier, Wilkinson challenged the search that was made for documents in 17 categories listed in Appendix A, stating that he received no response from SR regarding these categories. As an initial matter, we contacted SR to determine if a determination had been made on the categories specified in Wilkinson's Appeal. SR informed us that for any request category that did not have responsive documents listed under it, SR could find no responsive documents. SR noted that the categories of requests were very similar and that several of the documents listed as being responsive for one category were also responsive for other categories although not so noted. See Memorandum from Timothy Fisher, Attorney-Advisor, SR, to Richard Cronin, OHA Staff Attorney (July 25, 1997).

As part of our review, we contacted a representative of SR to inquire about the details surrounding her search. The SR official informed us that she had initiated a search of all of the departments at SR that would be likely to possess responsive documents. Each of the following SR Program Offices' files were searched for responsive documents described in each of the 70 categories listed in the request: Manager; Deputy Manager; Assistant Manager for Environmental Restoration and Solid Waste; Assistant Manager for High Level Waste; Assistant Manager of Environment, Safety, Health, and Quality; Assistant Manager for Engineering and Projects; Assistant Manager for Business and Human Resources Utilization; Office of Field Chief Financial Officer; Assistant Manager for Defense Programs; Office of Community Outreach; Office of External Affairs; and Office of Chief Counsel. See Memorandum of telephone conversation between Pauline Conner, SR, and Richard Cronin, OHA Staff Attorney (July 25, 1997); Memorandum from Timothy Fisher, Attorney-Advisor, SR to Richard Cronin, OHA Staff Attorney (July 25, 1997). The SR official stated the search comprised essentially all of the offices at the SR and that she knew of no other SR office that might possess responsive documents. Given the extent of the search described above, we believe that the search conducted by SR for the categories of requested documents described in Appendix A was adequate.

It Is Therefore Ordered That:

(1) The Appeal filed by Charles L. Wilkinson, III, on July 14, 1997, Case No. VFA-0312, is hereby granted as set forth in Paragraph (2), and is denied in all other respects.

(2) This matter is remanded to the Department of Energy's Savannah River Operations Office for further consideration in accordance with the instructions contained in the foregoing decision.

(3) This is a final Order of the Department of Energy of 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 either in the district where 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 8, 1997

APPENDIX A

Request No. Request

12 All rosters and lists of employees who were employed or assigned to the D-Area Powerhouse during the period from January 1, 1990, to the time SCE&G assumed responsibility for operation and maintenance of the powerhouse.

13 All lists, reports, budgets, and financial statements showing the cost of labor and personnel for the D-Area Powerhouse since January 1, 1990.

14 All cancelled checks, drafts, or other evidence of payment of monies made by DOE or WSRC to any utility company, including SCE&G, for electricity for SR purchased from that utility company, including SCE&G, since January 1, 1990.

15 All post August 8, 1995 amendments, changes or letters or understanding pertaining to the contract between DOE and SCE&G for the operations and maintenance of the D-Area Powerhouse.

27 All lists indicating the names, positions, and salaries or wages of those employees of WSRC and DOE who had been employed at the D-Area Powerhouse prior to the effective date of the lease with SCE&G, who have been laid off and terminated as a result of SCE&G assumption of the operations and maintenance of the powerhouse.

28 All documents indicating that the projected savings by having SCE&G operate and maintain the D-Area Powerhouse have been achieved.

44 All documents, letters, correspondence, memoranda upon which DOE basis its contention that the Davis-Bacon Act does not apply to the landfill or waste technology center.

47 All documents reflecting the qualification for SCE&G employees who will be operating the D-Area Powerhouse.

49 All documents indicating DOE criteria for laying off salaried employees by WSRC and BSRI.

50 All DOE documents or documents furnished DOE by WSRC and BSRI reflecting savings on the out-sourcing of work at SR.

51 All DOE documents, directives, memoranda, and policy statements as to what is considered to be Davis-Bacon work and what is considered to be service contract work.

52 All documents reflecting the results of studies or audits on the overhead costs for DOE at SR and for contractors at SR, including WSRC and BSRI.

53 All studies which compare the costs, efficiency, labor costs, productivity, safety, of SR with other DOE sites.

54 All studies that compare the utilization of union labor at SR to other DOE sites, including the percentage of construction performed using collective bargaining agreements.

56 All documents, directives, letters. memoranda, and policy between DOE Headquarters and DOE SR concerning utilization of craftsmen and workers furnished through collective bargaining agreements at SR.

57 All documents, directives, letters and policy between DOE Headquarters and DOE SR concerning utilization or non-utilization of union workers at SR.

61 All documents relating to the out-souring of "barrel boxes" and the modifications that were required to be done on site to allow them to be used, including the cost of on-site modification.

APPENDIX B

Document

No. Document Title

3/5 Minutes of the Three Rivers Solid Waste Authority, unsigned copy.

3/19 Inter-office Memorandum, J.B. Gladden to Distribution, Subject: Regional Landfill Advisory Committee Meeting - April 11.

3/23 Inter-office Memorandum, James A. Wright to Distribution, Subject: Meeting Minutes.

11/1.a.1 Draft Cost Sharing Agreement.

19/2 Handwritten Memo, Lee Watkins to Mario Flori, Subject: SCE&G Contract and Potential Effect on M&O Employees.

45/4 Draft Letter to Edgar West, Subject: Davis-Bacon Act Applicability to Projects at DOE's SR.

60/1.g.2 WSRC, Make or Buy.

64/1 Inter-office Memo, John R. Shaffer to Distribution, Subject SCE&G Environmental Claims and Concerns.

64/2 Inter-office Memo, Brenda T. Hays to John R. Shaffer, Subject: OSHA Issue.

64/5 Inter-office Memo, Brenda T. Hays to John R. Shaffer and Carol R. Elliot, Subject: OSHA Oversight.

64/15 Inter-office Memo, John R. Shaffer to Perry E. Dukes and Brenda T. Hays, Subject: Comments on July 10, 1995 Version of SCE&G Lease.

64/16 Inter-office Memo, Brenda T. Hays to John R. Shaffer and Perry E. Dukes, Subject: Power Privatization.

64/18 Inter-office Memo, Brenda T. Hays to Distribution, Subject: Power Privatization.

64/21 Inter-office Memo, Brenda T. Hays to John R. Shaffer and Perry E. Dukes, Subject: Power Privatization.

64/28 Inter-office Memo, Richard H. Rustad to Brenda T. Hays, Subject: Back to Square One.

64/29 Inter-office Memo, Brenda T. Hays to Richard H. Rustad, Subject: D Area Alternative Strategy.

64/30 Inter-office Memo, Greta C. Fanning to John R. Shaffer, Subject: Comments on EBS for D-Area Powerhouse.

(1)SR entered into a lease of its on-site powerhouse (D-Area Powerhouse) and its transmission lines with South Carolina Electric and Gas (SCE&G) effective October 1995. In 1995, DOE entered into a Memorandum of Understanding with the Three Rivers Solid Waste Authority (TRA), a consortium of eight local counties, in which TRA would build and operate a regional landfill. This is the landfill referred to by Wilkinson.

(2)Wilkinson did not appeal the withholding of material under Exemptions 3, 4 and 6. The withheld Exemption 5 documents challenged in the present case are listed by document number in Appendix B of this Decision. The Document numbers themselves are two numbers separated by a slash. The number to the left of the slash indicates which number request category the document was responsive to. The number to the right indicates the given identification number of the document within a particular category of requested documents.

(3)The categories of requested information for which Wilkinson asserts that an inadequate search was made are listed by request number in Appendix A to this Decision.