Dennis Kirson, Case No. VFA-0333, October 7, 1997

Case No. VFA-0333, 26 DOE ¶ 80,225

October 7, 1997

DECISION AND ORDER

OF THE DEPARTMENT OF ENERGY

Appeal

Name of Petitioner:Dennis Kirson

Date of Filing: September 10, 1997

Case Number: VFA-0333

On September 10, 1997, Dennis Kirson (Kirson) filed an Appeal from a final determination the Albuquerque Operations Office (AL) of the Department of Energy (DOE) issued to him on September 3, 1997. In that determination, AL denied a request for information that Kirson 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, Kirson sought a copy of the "list of impacted positions at AL which was required to be delivered to Field Management (FM) on August 15, 1997." (1) In its September 3, 1997 determination letter (Determination Letter), AL identified one document responsive to Kirson's request. AL stated that this document was a copy of a preliminary assessment of federal staff employee positions to be eliminated which was forwarded to the DOE's Offices of Human Resources and Field Management on August 20, 1997. AL withheld the document in its entirety pursuant to Exemption 5 of the FOIA. The Determination Letter further stated that because AL has not reached any decision and was still negotiating with the DOE Office of Defense Programs (DP) regarding the positions to be eliminated (in the event of limits imposed by Congressional

funding), the document was an intra-agency predecisional document protected by Exemption 5. The Determination Letter also concluded that release of the document would not be in the public interest.

In his Appeal, Kirson argues that Department of Energy Headquarters elements such as DP and the Office of the Assistant Secretary for Environment, Safety and Health have already released lists of targeted positions to be abolished. Additionally, Kirson asserts that the DOE Operations Offices in Nevada and Idaho have also released their targeted position lists. Consequently, Kirson argues that because other DOE offices have released their targeted positions lists, AL may not now withhold its list pursuant to Exemption 5. Kirson also asserts that Office of Personnel Management (OPM) regulations seek to establish uniform and fair employment practices for all federal employees in all federal agencies. He apparently argues that AL's action in withholding the document contravenes the spirit of these regulations.

II. Analysis

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).

The document at issue contains a list of positions at AL which AL officials proposed for elimination pursuant to a scheduled reduction in force beginning on September 5, 1997 if Congressional funding were enacted. This document was submitted to HR so that it could review the positions which were proposed to be eliminated at AL. AL's Office of Chief Counsel has informed us that no final decision has been made regarding which, if any, positions should be eliminated and that AL and DP are still considering the issue. See Memorandum of telephone conversation between Ron O'Dowd, Office of Chief Counsel, AL, and Richard Cronin, OHA Staff Attorney (September 16, 1997). Additionally, an official at HR has informed us that given the fact that no RIF was conducted on September 5, 1997, new lists of targeted positions would probably have to be created if Congress were now to enact funding reductions for DOE. See Memorandum of telephone conversation between Pam Jeckell, Assistant Director of Workforce Reinvention and Staffing and Richard Cronin, OHA Staff Attorney (September 22, 1997). Given the facts presented to us, we find that the document is a pre- decisional, intra-agency document. Consequently, we have determined that Exemption 5 was properly applied to the document at issue. However, there is a very small amount of segregable factual material, consisting of column headings, which can be released to Kirson.

Kirson's arguments supporting his position that the entire document should be released are not persuasive. We have discovered that the Nevada and Idaho DOE Operations Offices and at least one DOE Headquarters office each discretionarily released to their employees, outside of the FOIA, a list of targeted positions to be eliminated. See Memorandum of telephone conversation between Kara Rickey, Office of Public Affairs, Nevada Operations Office and Richard Cronin, OHA Staff Attorney (September 22, 1997); Memorandum of telephone conversation between Carl Robertson, Idaho Operations Office and Richard Cronin, OHA Staff Attorney (September 22, 1997); Memorandum of telephone conversation between Ann Broker, Office of General Counsel, DOE Headquarters and Richard Cronin, OHA Staff Attorney (September 19, 1997). We are unaware of any lists of targeted positions that have been released by the DOE pursuant to the FOIA. See Memorandum of telephone conversation with GayLa Sessoms, Director, Freedom of Information and Privacy Group and Richard Cronin, OHA Staff Attorney (September 22, 1997). The fact that a DOE office has exercised its discretion to release similar documents outside of the FOIA process is not determinative of whether a particular document may properly be withheld pursuant to the FOIA. Similarly, Kirson's general argument that withholding the document would violate the spirit of the OPM regulations is also irrelevant to the determination of whether a document may properly be withheld pursuant to the FOIA and the DOE regulations which implement it.

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 AL properly applied Exemption 5 to most of the requested information, we must consider whether the public interest nevertheless requires 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 a preliminary opinion by AL officials regarding which positions could be eliminated in the eventuality of reduced funding by Congress. The release of this information would in our opinion have a chilling effect on the willingness of DOE Operations Office officials to make candid statements of opinion regarding a very sensitive issue potentially affecting the jobs of DOE employees. Employees and managers would be less likely to communicate their opinions on this and similar issues if they knew or suspected that an agency would release their opinions to the public. Additionally, AL officials have informed us that, in their opinion, release of the preliminary information contained in the list could cause serious confusion among employees at AL since the list is not final. We believe that in some workplace environments release of a preliminary list such as the one in the present case could cause significant employee distress. 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.(2)

It Is Therefore Ordered That:

(1) The Appeal filed by Dennis Kirson on September 10, 1997, Case No. VFA-0333, 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 Albuquerque 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: October 7, 1997

(1)At the time of Kirson's request, DOE was making provisional plans to reduce its workforce by issuing Reduction-in-Force (RIF) notices on September 5, 1997 to various DOE personnel due to limits imposed by proposed Congressional funding reductions. DOE's Office of Human Resources (HR) and Administration requested lists of the positions proposed to be eliminated at each DOE office and facility.

(2)This determination is not made less valid by the fact that other DOE offices have exercised their discretion to release lists of targeted positions outside of the FOIA context, especially since agencies may decide to disclose information under those circumstances without any assessment of the effect of the disclosure on the public interest.