Case No. VFA-0313, 26 DOE ¶ 80,218

September 9, 1997

DECISION AND ORDER

OF THE DEPARTMENT OF ENERGY

Appeal

Name of Petitioner: Janice C. Curry

Date of Filing: July 24, 1997

Case Number: VFA-0313

On July 24, 1997, Janice C. Curry filed an Appeal from a determination issued on June 20, 1997, by the Office of Environmental Management (EM) of the Department of Energy (DOE). The determination responded to a request for information 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. Ms. Curry challenges the withholding of information from her, as well as the adequacy of EM's search for documents responsive to her request.

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 which 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 March 6, 1997, Ms. Curry requested from the DOE

any and all documents relating to my employment as a contractor at the Department of Energy. Specifically a letter that was submitted around the week of February 3, 1997, stating that I was a threat to public health and safety. . . .

Also there was a report made on February 14, 1997, that I was beating up an Office Director within [EM]. I do not know if there was a formal written report given to security, but Trina Porter of EM was informed of the incident.

Letter from Janice C. Curry to Freedom of Information and Privacy Act Office, DOE (March 6, 1997). On June 20, 1997, EM issued a determination to Ms. Curry in which it stated that

a search of the files of the Office of Intergovernmental and Public Accountability, [EM], was conducted for responsive documents. The search identified one document responsive to your request, a memorandum to Cynthia Brawner-Gaines, in the Office of Minority Affairs, dated February 6, 1997. The document discusses a request to remedy a personnel problem that created an unsafe working environment within the Office of Intergovernmental and Public Accountability (EM-22). Their document, however, is exempt from disclosure pursuant to Exemption 6 of the FOIA, 5 U.S.C. 552(b)(6).

Letter from Barry R. Clark, Acting Deputy Assistant Secretary for Management and Evaluation, EM, to Janice C. Curry (June 20, 1997). Accordingly, EM withheld this document in its entirety from Ms. Curry. After receiving Ms. Curry's Appeal, we obtained and reviewed a copy of the withheld memorandum.

II. Analysis

A. The Applicability of FOIA Exemption 6 to the Information Withheld by OFO

Exemption 6 shields from disclosure "[p]ersonnel 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).

In order to determine whether information may be withheld under Exemption 6, an agency must undertake a three-step analysis. First, the agency must determine whether a significant privacy interest would be invaded by the disclosure of the record. If no privacy interest is identified, the record may not be withheld pursuant to Exemption 6. Ripskis v. Department of HUD, 746 F.2d 1, 3 (D.C. Cir. 1984). Second, the agency must determine whether 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 (1989); Hopkins v. Department of HUD, 929 F.2d 81, 88 (2d Cir. 1991); FLRA v. Department of Treasury Fin. Management Serv., 884 F.2d 1446, 1451 (D.C. Cir. 1989), cert. denied, 110 S. Ct. 864 (1990). 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. Reporters Committee, 489 U.S. at 762-70.

In its determination, EM stated that the disclosure of the memorandum withheld from Ms. Curry "would reveal the identity of its author and subject that individual to unwanted communications and harassment, . . ." Letter from Barry R. Clark, EM, to Janice C. Curry at 1. Ms. Curry counters in her Appeal that she already knows the author of the document. Appeal at 1.

The case before us is much like that of Fine v. Department of Energy, 823 F. Supp. 888 (D.N.M. 1993). In that case, the requester was a former DOE employee who sought documents from the agency, and in particular from the office where he used to work. Id. at 888. The DOE withheld some of the requested documents pursuant to Exemption 6. Id. The court disagreed with the agency's invocation of Exemption 6.

Defendant [DOE] consistently justifies invoking Exemption 6 by claiming that disclosure of the document in question would subject the author and/or persons mentioned in the document to possible harassment or intimidation by plaintiff. . . .

Where a person's fear of reprisals from the subject of a communication is "reasonable" based on either demonstrated fact or inferences supported by reasonable claims, privacy interests support the application of Exemption 6. . . .

Defendant has offered neither facts nor supported inferences tending to show plaintiff might be inclined to harass or intimidate persons. Plaintiff is no longer employed by the defendant so he is not in a position on-the-job to harass or intimidate employees of DOE/OIG and/or its contractors. The Court, therefore, does not find justifiable defendant's repeated invoking of Exemption 6 to prevent harassment or intimidation by plaintiff.

Id. at 895-96. The court also took into account information the requester already knew in determining the degree of privacy invasion that would be caused by the release of the information in the specific documents at issue. Id. at 896.

The facts to be considered in the present case are quite analogous to those the court deemed significant in Fine. Ms. Curry no longer works at the DOE, and she has asserted that she already knows the identities of the authors of the documents she is seeking. Based on our communications with EM regarding the present Appeal, we do not believe these factors were adequately considered in reaching its determination. We therefore will remand this matter to EM for the purpose of issuing a new determination to Ms. Curry. With reference to the relevant factors described above, the new determination shall explain the basis for any conclusion that release of the document would expose its author to unwanted communications and harassment.(1)

B. The Adequacy of EM's Search for Responsive Documents

Ms. Curry also challenges the adequacy of EM's search for documents responsive to her request. Memorandum of telephone conversation between Janice Curry and Steven Goering, OHA (August 20, 1997). 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. Butler, Vines and Babb, P.L.L.C., 25 DOE ¶ 80,152 (1995); Hideca Petroleum Corp., 9 DOE ¶ 80,108 (1981); Charles Varon, 6 DOE ¶ 80,118 (1980). The FOIA, however, requires that a search be reasonable, not exhaustive. "[T]he standard of reasonableness which we apply to agency search procedures 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); accord Weisberg v. Department of Justice, 745 F.2d 1476, 1485 (D.C. Cir. 1984). 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).

In the present case, Ms. Curry specifically requested "any and all documents relating to my employment as a contractor" at the DOE. In light of this broadly worded request, we believe that EM's search for documents should have been more thorough than it apparently was. EM has informed us that it consulted with two EM employees in its search for responsive documents. See Memorandum of telephone conversation between Jeffrey J. Williams, EM, and Steven Goering, OHA (August 20, 1997). We subsequently contacted these two persons to ascertain the extent of their contribution to the search for documents. Though we believe that these two employees provided copies of any responsive documents in their possession, we also learned that there may be other locations where documents related to Ms. Curry's employment may be found, including the office responsible for the contract between the DOE and Ms. Curry's former employer. See Electronic mail from Melinda Downing, EM, to Steven Goering, OHA (August 26, 1997). In addition, portions of the document withheld from Ms. Curry refer to other documentation that was provided to EM officials other than those consulted in EM's processing of Ms. Curry's request. We will therefore remand this matter to EM for a further search for documents responsive to Ms. Curry's request. Any responsive documents shall be released to Ms. Curry, or the basis for their withholding explained with specific reference to one or more FOIA exemptions.(2)(3)

It Is Therefore Ordered That:

(1) The Appeal filed by Janice C. Curry on July 24, 1997, Case Number VFA-0313, is hereby granted as specified in Paragraph (2) below, and is denied in all other respects.

(2) This matter is hereby remanded to the Department of Energy's Office of Environmental Management, which shall issue a new determination in accordance with the instructions set forth in the above Decision and Order.

(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: September 9, 1997

(1) It is possible that information in the memorandum at issue may also be subject to withholding under the deliberative process privilege of FOIA Exemption 5. However, if the information may be withheld under that Exemption, the information should be released unless EM "reasonably foresees that disclosure would be harmful to an interest protected" by the Exemption. Memorandum from Attorney General Janet Reno to Heads of Departments and Agencies (October 4, 1993).

(2) On remand, EM should bear in mind that the FOIA requires that "[a]ny reasonably segregable portion of a record shall be provided to any person requesting such record after deletion of the portions which are exempt . . . ." 5 U.S.C. § 552(b) (1982). See EPA v. Mink, 410 U.S. 73, 89, 91 (1973); Mead Data Central, Inc. v. Air Force, 556 F.2d 242, 259-62 (D.C. Cir. 1977), cert. denied, 436 U.S. 927 (1978); Casson, Calligaro & Mutryn, 10 DOE ¶ 80,137 at 80,615 (1983). However, segregation and release of non-exempt material is not necessary where it is "inextricably intertwined" with the exempt material so that release of the non-exempt material would "compromise" the withheld material, or where the amount of non-exempt material is small and so interspersed with exempt material that it would pose "an inordinate burden" to segregate. Lead Indus. Ass'n v. OSHA, 610 F.2d 70, 83-86 (2d Cir. 1979).

(3) If EM locates any responsive documents that are contained in a "system of records" as defined in the Privacy Act, 5 U.S.C. § 552a, EM should process Ms. Curry's request under both the Privacy Act and the FOIA. See 10 C.F.R. Part 1008 (DOE Privacy Act regulations).