Case No. VFA-0331, 26 DOE¶ 80,224

October 1, 1997

DECISION AND ORDER

OF THE DEPARTMENT OF ENERGY

Appeal

Name of Petitioner: Richard R. McNulty

Date of Filing: September 2, 1997

Case Number: VFA-0331

On September 2, 1997, Richard R. McNulty (Appellant) filed an Appeal from a final determination issued to him on July 28, 1997, by the Department of Energy's (DOE) Richland Operations Office (Richland). In that determination, Richland released two documents responsive to a request for information the Appellant filed under the Freedom of Information Act (FOIA), 5 U.S.C. § 552(b), as implemented by the DOE in 10 C.F.R. Part 1004. Richland deleted and withheld portions of the documents under FOIA Exemptions 5 and 6, however. This Appeal, if granted, would require the DOE to release the withheld information.

I. BACKGROUND

In response to an extensive request filed by the Appellant, Richland has issued a number of determinations. The present Appeal concerns only the determination letter issued to the Appellant on July 28, 1997. That determination letter released two documents to the individual, herein referred to as "Attachments A and B." Extensive portions of both documents were redacted and withheld under Exemptions 5 and 6. (1) See Determination Letter at 1. On September 2, 1997, the Appellant filed the present Appeal, challenging Richland's withholdings.

II. ANALYSIS

The FOIA generally requires that documents held by federal agencies be released to the public upon request. The FOIA, however, lists nine exemptions that set forth the types of information which may be withheld at the discretion of an agency. 5 U.S.C. § 552(b). Only Exemptions 5 and 6 are at issue in the present case.

A. Attachment A

Attachment A consists of notes taken at a DOE meeting held on April 1, 1997. The names of most of the individuals that participated in the meeting appear in the top portion of this document, while the remainder of the document summarizes the comments made by the meeting's participants in apparent chronological order. Richland released this document but redacted the portions of the document that indicated who made each statement under Exemption 6. Richland also withheld other portions of the document which did not indicate identities under Exemption 5's deliberative process privilege.

Exemption 6

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 a record may be withheld under Exemption 6 an agency must undertake a three-step analysis. First, the agency must determine whether or not a significant privacy interest would be compromised by the disclosure of the record. If no privacy interest is identified, the record may not be withheld under 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 Reporters Committee for Freedom of the Press v. Department of Justice, 109 S. Ct. 1468, 1481 (1989) (Reporters Committee). Finally, the agency must weigh the privacy interests it has identified against the public interest in order to determine whether release of the record would constitute a clearly unwarranted invasion of personal privacy. See generally Ripskis, 746 F.2d at 3.

Richland has found a privacy interest in information revealing the identities of individuals contained in Attachment A. Determination Letter at 1. The identities of the individuals were withheld because of a concern that their release might subject the individuals to harassment, intimidation, or other personal intrusions. In such circumstances, the courts have consistently recognized significant privacy interests. See Safecard Services, Inc. v. S.E.C., 926 F.2d 1197 (D.C. Cir. 1991); KTVY- TV v. United States, 919 F.2d 1465, 1469 (10th Cir. 1990) (finding that withholding identity necessary to avoid harassment of individual); Cucarro v. Secretary of Labor, 770 F.2d 355, 359 (3d Cir. 1985). Accordingly, we have followed the courts' lead. James L. Schwab, 21 DOE ¶ 80,117 at 80,556 (1991); Lloyd R. Makey, 20 DOE ¶ 80,129 (1990). The potential for harassment, intimidation or other personal intrusions is obvious from the context of Attachment A since it contains numerous derogatory (and possibly inflammatory) statements concerning the Appellant. Accordingly, we find a significant privacy interest exists in the present case.

In Reporters Committee, the Supreme Court greatly narrowed the scope of the public interest in the context of the FOIA. Justice Stevens, writing for the Court, distinguished between the general benefits to the public that may result from the release of information, and those benefits that Congress sought to provide the public when it enacted the FOIA. He found that in FOIA contexts, the public interest in disclosure must be measured in terms of its relation to the FOIA's core purpose. Reporters Committee, 109 S. Ct. at 1481-84. The Court identified the core purpose of the FOIA as "public understanding of the operations or activities of the Government." Id. at 1483. Consequently, the Court held, only that information which contributes significantly to the public's understanding of the operations or activities of the Government is within "the ambit of the public interest which the FOIA was enacted to serve." Id. The Court therefore found that unless the public would learn something directly about the workings of government from the release of a document, its disclosure is not "affected with the public interest." Id.; see also National Ass'n of Retired Employees v. Horner, 879 F.2d 873, 879 (D.C. Cir. 1989), cert. denied, 494 U.S. 1078 (1990). Release of the individuals' identities linked with particular statements would not likely contribute to the public's understanding of the operations or activities of the Government. Accordingly, we find that there is little or no public interest in their release.

Because release of the individuals' identities in that context could reasonably be expected to subject them to harassment or intimidation or other personal intrusions, we find that significant privacy interests exist for the individuals. After weighing the significant privacy interests present in this case against an insubstantial or non- existent public interest, we find that release of information revealing their identities could reasonably be expected to constitute an unwarranted invasion of personal privacy. Accordingly, we find that their identities were properly withheld under Exemption 6.

Exemption 5

Our review of the unredacted copy of Attachment A reveals that Richland withheld a great deal of information other than that which could link individuals to particular statements at the meeting. That information was withheld under Exemption 5. Exemption 5 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). The courts have identified three traditional privileges that fall under this 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). In the present case, only the "deliberative process privilege" is at issue.

The deliberative privilege covers only the subjective, deliberative portion of the document. EPA v. Mink, 410 U.S. 73, 87-91 (1973). Moreover, the FOIA, as implemented by 10 C.F.R. § 1004.10(c), 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 under this subsection." 5 U.S.C. § 552(b). The only exceptions to the requirement of segregation are where exempt and non-exempt material are so "inextricably intertwined" that release of the non-exempt material would compromise the exempt material, Lead Industries Assoc., Inc. v. Occupational Safety and Health Admin., 610 F.2d 70, 85 (2d Cir. 1979), or where non-exempt material is so small and interspersed with exempt material that it would pose "an inordinate burden" to segregate it. Id.

Our review indicates that Richland has withheld more information than necessary under the rules which govern this area. In our view, release of the vast majority of the information withheld under Exemption 5 in these documents would pose no tangible risk to interests protected under the FOIA. Specifically, we find that by redacting identities of individuals who either made comments at the meeting or whose names were mentioned at the meeting the privacy of the speakers as well as the deliberative process may be preserved while allowing the individual access to the substance of the conversation.

Accordingly, we find that Richland must review all of its withholdings under Exemption 5 to ensure that they are appropriate under the "reasonably foreseeable harm" standard set forth by the Attorney General in 1993. This standard applies a presumption in favor of disclosure which, in the absence of a reasonably foreseeable harm to an interest protected by an exemption, should result in a determination by the agency that the public interest lies with disclosure. See J. Reno, Memorandum for Heads of Departments and Agencies (October 4, 1993). Therefore we are remanding this portion of the Appeal to Richland. On remand, Richland should conduct a further review, under this standard, of all information withheld pursuant to Exemption 5.

B. Attachment B

The Determination Letter indicates that only the names of individuals were withheld from Attachment B, pursuant to Exemption 6. Our initial review of the redacted version of Attachment B indicated that a good deal more than the names of individuals had been deleted. In fact, virtually all of the text of this document had been deleted. Accordingly, we contacted Richland to obtain an unredacted copy of that document in order to facilitate our review. We were then informed by Richland's FOIA Officer that, despite its requests, the FOIA office was never provided with an unredacted copy of Attachment B. Instead, we were informed that the document was in the possession of the DOE employee who had created it, Jackson Kinzer, Richland's Assistant Manager for Tank Waste Remediation. We contacted Mr. Kinzer in order to obtain an unredacted copy of Attachment B. However, we were informed by Mr. Kinzer that he had taken the document to his residence and had been unable to locate it.

Without this document we are unable to conduct a meaningful review of Richland's withholdings from this document. Therefore we are also remanding this portion of the Appeal to Richland. On remand, Richland shall immediately conduct an exhaustive search for a complete copy of Attachment B. Promptly upon locating Attachment B, Richland should either release it to the Appellant in its entirety or conduct a further review of the document in accordance with the guidance set forth above before issuing a new determination letter.

III. CONCLUSION

While we are strongly committed to keeping the public fully informed about DOE actions, we are also mindful of the need to preserve the privacy rights of individuals. By releasing Attachment A with only those redactions necessary to prevent linking of specific individuals with specific statements, the agency can provide as much information as possible while safeguarding individual privacy rights.

For the reasons set forth above, we are remanding this matter to the Department of Energy's Richland Operations Office for completion of the expanded search for Attachment B, an additional review of Attachment A, and the issuance of a new determination letter.

It is Therefore Ordered That:

(1) The Freedom of Information Act Appeal filed by Richard R. McNulty on September 2, 1997 (Case Number VFA-0331) is hereby granted to the extent set forth in Paragraph (2) and denied in all other aspects.

(2) This matter is hereby remanded to the Richland Operations Office for further processing 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 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: October 1, 1997

(1)* The determination letter indicates that the information was withheld from Attachment A under Exemptions 5 and 6, while information was withheld from Attachment B under only Exemption 6.