Case No. VFA-0341, 26 DOE ¶ 80,233

November 13, 1997

DECISION AND ORDER

OF THE DEPARTMENT OF ENERGY

Appeal

Name of Petitioner: James R. Hutton

Date of Filing: October 14, 1997

Case Number: VFA-0341

On October 14, 1997, James R. Hutton (Appellant) filed an Appeal from a final determination issued on September 23, 1997, by the Department of Energy's (DOE) Oak Ridge Operations Office (Oak Ridge). In that determination, Oak Ridge withheld one and released another of the documents that the Appellant requested under the Freedom of Information Act (FOIA), 5 U.S.C. § 552, as implemented by the DOE in 10 C.F.R. Part 1004. It refused to confirm or deny the existence of a third document. This Appeal, if granted, would require the DOE to release any withheld documents.

I. BACKGROUND

On September 9, 1997, the Appellant submitted a request for information to Oak Ridge concerning a Reduction in Force (RIF) expected to occur at Oak Ridge on September 5, 1997 (the September RIF). (1) The Appellant sought copies of the complete "retention register" in effect on September 5, 1997 (Document 1); the listing of the positions to be affected by the September RIF (Document 2); and a copy of the RIF notice that was going to be sent to the Appellant (Document 3). September 9, 1997 Request. On September 25, 1997, Oak Ridge issued a determination in response to this request releasing Document 2 to the Appellant, withholding Document 1 in its entirety under Exemption 6, and refusing to confirm or deny the existence of any document matching the description of Document 3. On October 14, 1997, the Appellant filed the present Appeal, contending that Oak Ridge's determinations concerning Documents 1 and 3 were improper.

II. ANALYSIS

While the FOIA generally requires that information held by government agencies be released to the public upon request, Congress has provided nine exemptions to the FOIA which set forth the types of information agencies are not required to release. Only Exemptions 5 and 6 are at issue in the present case.

Document 1

Document 1 is a copy of the retention register for the Oak Ridge Operations Office which was in effect at the time of the proposed RIF. Oak Ridge withheld Document 1 in its entirety under 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 pursuant to either of the exemptions. 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 under Exemption 6. See generally Ripskis, 746 F.2d at 3.

Oak Ridge found that the release of Document 1 would result in the invasion of individual privacy interests. Specifically, Oak Ridge found that:

Releasing job series classifications could reasonably identify Federal Employees who are the subject of a pending RIF and lead to unwarranted intrusions into both the personal and professional lives of those employees.

Determination Letter at 1. This determination fails to adequately explain why the retention register was withheld in its entirety. After reviewing portions of a similar retention register, we are convinced that by segregating and withholding only that information in the retention register that would reveal the identities of specific individual, the information contained in the retention register can be released without invading any individual privacy interests. Based on the record before us, we find that the only portions of the retention register in which there are privacy interests are the names of individuals and their position numbers. (2) Release of such information would reveal the identities of particular federal employees. A third party might then link the names or position numbers (each of which corresponds to a particular employee) to the rest of the information contained in the retention register, which in turn could be used to publicly reveal individual employee's performance appraisals and vulnerability to a reduction in force. Performance appraisals and vulnerability to reductions in force are types of personnel information Congress sought to protect when it created Exemption 6.

Because we have found a privacy interest in the names and position numbers of federal employees contained in retention registers, we must next determine the public interest in their disclosure. 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).

We find that the names and position numbers contained in the retention register reveal little or nothing about the operations and activities of the government. Therefore, after weighing the evident privacy interests present in this case against an insubstantial or non-existent public interest, we find that release of information revealing the identities of federal employees could reasonably be expected to constitute an unwarranted invasion of personal privacy. We are therefore remanding this portion of the Appeal to Oak Ridge with instructions to release, to the Appellant, a copy of the requested retention register with the names and position numbers of all employees other than the Appellant redacted.

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 the responsive document with only those redactions necessary to prevent identification of specific individuals, the agency can provide as much information as possible while safeguarding individual privacy rights.

Document 3

The Appellant requested a copy of any RIF notice that would have been sent to him if the September 1997 RIF had occurred. Oak Ridge would neither confirm nor deny the existence of any document meeting this description, claiming that if it were to do so, its deliberative process would be revealed.

An agency's statement in response to a FOIA request that it will neither confirm nor deny the existence of records is commonly called a "Glomar" response. A Glomar response is justified when the records sought, if they exist, would be exempt from disclosure under an applicable FOIA exemption, and the confirmation of the existence of such records would itself reveal exempt information. See Antonelli v. F.B.I., 721 F.2d 615 (7th Cir. 1983); William H. Payne, 26 DOE ¶ 80,144 (1996). However, the use of Glomar responses should be limited to those instances where it is absolutely necessary.

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) (Sears). 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 54, 862 (D.C. Cir. 1980). In the present case, only the "deliberative process privilege" is at issue.

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 was clearly predecisional (if it existed) since it was never formally adopted as an expression of the agency's policy. However, the document does not appear to be deliberative. Instead, the agency would have drafted documents of this type after it had produced a retention register which reflected the agency's assignment of employees to specific competitive areas and ranking of those employees' dates of entry, as well as a list of positions to be subject to the reduction in force. Since employees subject to the proposed RIF in Oak Ridge were given an opportunity to review the retention register for their competitive areas and since a list of positions to be subject to the RIF was made publicly available, confirming or denying the existence of a particular RIF notice would not reveal any information not already made available to the individual to whom it was directed or to the world at large. Therefore, Oak Ridge should not have used a Glomar response in this case. Confirming or denying the existence of Document 3 would not inhibit the agency's deliberative process. (3) Accordingly, we find that Oak Ridge could not properly refuse to confirm or deny the existence of the RIF notice under Exemption 5. We are therefore remanding this portion of the Appeal to Oak Ridge with instructions to issue a new determination letter concerning the requested RIF notice.

It Is Therefore Ordered That:

(1) The Freedom of Information Act Appeal filed by James R. Hutton on October 14, 1997 (Case Number VFA-0341) is hereby granted as set forth in Paragraph (2) and denied in all other aspects.

(2) This case is hereby remanded to the Oak Ridge Operations Office for future 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: November 13, 1997

(1) The September RIF never took place.

(2) The Appellant's name and position number cannot be withheld from the Appellant because releasing information to the Appellant about himself would not invade his privacy interests.

(3) It is important to note that we are not ruling on whether or not the information contained in the RIF notice, if it exits, could properly be withheld under Exemption 5 or any other FOIA Exemption.