Case No. VFA-0351, 26 DOE ¶ 80, 238

December 11, 1997

DECISION AND ORDER

OF THE DEPARTMENT OF ENERGY

Appeal

Name of Petitioner: Tod Rockefeller

Date of Filing: November 17, 1997

Case Number: VFA-0351

On November 17, 1997, Tod Rockefeller (Appellant) filed an Appeal from a determination that the Department of Energy (DOE) issued to him on October 14, 1997. In that determination, DOE’s Albuquerque Operations Office (AOO) denied in part a request for information that the Appellant filed on July 29, 1997 under the Freedom of Information Act (FOIA), 5 U.S.C. § 552, as implemented by the DOE in 10 C.F.R. Part 1004. See Letter from David L. Geary, Director, AOO, Office of Public Affairs, to Appellant (October 14, 1997) (Determination Letter). In his request, the Appellant sought from AOO all documents listing written allegations about the Appellant that George Dials, Manager of the DOE’s Carlsbad Area Office, had received and which Mr. Dials had informed the Appellant he possessed.

In response to that request, AOO released two documents to the Appellant under the FOIA, but under Exemption 6 of that Act, redacted portions of both of those documents. This Appeal, if granted, would require the DOE to release the withheld information.(1)

ANALYSIS

Although the Appellant made his request under the FOIA, AOO initially considered whether the Privacy Act, 5 U.S.C. § 552a, as implemented by the DOE in 10 C.F.R. Part 1008, applied to this case. The Privacy Act requires, inter alia, that each federal agency permit an individual to gain access to information pertaining to him or her that is contained in any system of records maintained by the agency. 5 U.S.C. § 552a(d). DOE regulations define a system of records as “a group of any records under DOE control from which information is retrieved by the name of the individual or by some identifying number, symbol, or other identifying particulars assigned to the individual.” 10 C.F.R. § 1008.2(m). In this case, the two documents at issue were not a part of the Appellant’s personnel file (or any other file) at either the Carlsbad Area Office or the Albuquerque Operations Office. Instead the documents were kept solely on Mr. Dials’ desk. Therefore, the documents were never in a “system of records” subject to the Privacy Act.(2)See Record of Telephone Conversation between Dawn Goldstein and Ron O’Dowd (November 19, 1997). Therefore, AOO correctly determined that only the FOIA and not the Privacy Act applies to this case. See Greentree v. United States Customs Service, 674 F.2d 74 (D.C. Cir. 1982); Jeffrey L. Turek, 11 DOE ¶ 80,149 at 80,678 (1983).

Exemption 6 of the FOIA 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) (Washington Post). Furthermore, the term "similar files" has been interpreted broadly by the Supreme Court to include all information that "applies to a particular individual." Washington Post, 456 U.S. at 602. Thus, since there is no doubt that the documents at issue in this case include information that applies to the Appellant, they qualify as "similar files" under Exemption 6. See Jeffrey R. Leist, 25 DOE ¶ 80,159 at 80,651 (1996).

In order to determine whether an agency may withhold a record under Exemption 6, it must undertake a three step analysis. First, the agency must determine whether or not a substantial privacy interest would be invaded by the disclosure of the record. If the agency identifies no privacy interest or a de minimis privacy interest is identified, the record may not be withheld pursuant to 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 Department of Justice v. Reporters Committee for Freedom of the Press, 489 U.S. 749, 772-73 (1989) (Reporters Committee). Finally, the agency must weigh the privacy interests it identified against the public interest in order to determine whether release of the record would constitute a clearly unwarranted invasion of personal privacy. Ripskis, 746 F.2d at 3.

In this case, AOO redacted identifying portions of two different memoranda. Each memorandum contains reports prepared by various individuals as well as accounts of other individuals’ reported allegations of “aberrant behavior” by the Appellant, as described in the Determination Letter. According to the Determination Letter, disclosure of the withheld information would result in a clearly unwarranted invasion of personal privacy of these individuals within the meaning of Exemption 6.

The DOE withheld identifying information from these memoranda because of a concern that its release might subject the individuals involved 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, as in prior, similar cases, we have followed the courts’ lead. See, e.g., 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 each memorandum since each contains numerous derogatory (and possibly inflammatory) statements concerning the Appellant. In fact, AOO has informed us that the Appellant has already engaged in extreme verbal harassment of co-workers based on the release of just the redacted information, see Record of Telephone Conversation between Dawn Goldstein and Ron O’Dowd (November 19, 1997), thereby making the need for protection in this case most compelling. See William Hyde, 18 DOE ¶ 80,102 at 80,508 (1988). Accordingly, we find a significant privacy interest exists in the withheld information.

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 the FOIA context, the public interest in disclosure must be measured in terms of its relation to the FOIA's core purpose. Reporters Committee, 489 U.S. at 773. The Court identified the core purpose of the FOIA as "public understanding of the operations or activities of the Government." Id. at 775. Consequently, the Court held, only information that 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).

In this case, the Appellant asserts that there is a public interest at stake in upholding civil service protection laws and in permitting him to clear his name of false allegations. Neither asserted public interest meets the requirements of Reporters Committee. While there is a general governmental interest in upholding civil service protection laws, releasing the identifying portions of these allegations would not shed any light on whether DOE has taken any action that would violate these laws. Further, clearing an individual employee’s reputation regarding his interpersonal skills is too narrow and not within the concept of public interest as laid out in Reporters Committee, which is to “shed light on an agency’s performance of its statutory duties.” 489 U.S. at 773. Accordingly, we find that there is little or no public interest in the release of the withheld information.

Because release of the identifying information in the context at issue could reasonably be expected to subject the individuals involved to harassment, intimidation or other personal intrusions, we find that significant privacy interests exist for these individuals. After weighing the significant privacy interests present in this case against an insubstantial or non-existent public interest in releasing the information, we find that release of information revealing the co-workers’ identities could reasonably be expected to constitute an unwarranted invasion of personal privacy. Accordingly, we find that the identifying information was properly withheld under Exemption 6.

It Is Therefore Ordered That:

(1) The Freedom of Information Act Appeal filed by Tod Rockefeller on November 17, 1997 (Case Number VFA-0351) is hereby denied.

(2) 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: December 11, 1997

(1) 1/ The Appellant made three further arguments in his Appeal, none of which this Office can consider. First, the Appellant challenged the AOO’s statement in the Determination Letter that the redacted documents were not being used in an administrative action against him. This issue is irrelevant to the FOIA and therefore beyond the scope of this Office’s jurisdiction. Second, the Appellant claimed that he is already aware of the identity of at least one person whose name the DOE redacted. However, that claim also does not affect our FOIA analysis, since speculation as to the identity of a confidential source is irrelevant to the question of whether the records are exempt. Otherwise, the privacy of persons making confidential reports would be harmed by a mere guess. In addition, the ability of the government to obtain material which would not be made available absent a promise of confidentiality would be seriously compromised. See The Die-Gem Company, Inc., 19 DOE ¶ 80,124 at 80,570 (1989) (Exemption 7(D)); cf. Jeffery L. Turek, 11 DOE ¶ 80,142 at 80,662 (1983) (Privacy Act). Third, the Appellant asserted that the two redacted documents released to him “were not produced on the dates annotated” and that “their content is demonstrable misinformation.” See Electronic Mail from Appellant to Dawn Goldstein, Staff Attorney, OHA (November 20, 1997). Neither claim is relevant to the FOIA, because the FOIA is only concerned with providing agency records to the public, regardless of the accuracy of the contents. Moreover, although there is a limited right to correct wrong information about oneself under the Privacy Act, the Privacy Act is not involved in this case for the reasons explained infra.

(2) 2/ Although the DOE stamped each redacted document, “CAO [Carlsbad Area Office] Confidential Personnel File,” Mr. O’Dowd assured us that the marking was done only to signify the confidential nature of the documents. See Record of Telephone Conversation between Dawn Goldstein and Ron O’Dowd, Assistant Chief Counsel for Legal Affairs, AOO (November 19, 1997).