Homesteaders Association of the Pajarito, Case No. VFA-0355, December 22, 1997

Case No. VFA-0355, 26 DOE ¶ 80,241

December 22, 1997

DECISION AND ORDER

OF THE DEPARTMENT OF ENERGY

Appeal

Name of Petitioner:Homesteaders Association of the Pajarito Plateau

Date of Filing: November 21, 1997

Case Number: VFA-0355

On November 21, 1997, the Appellant, the Homesteaders Association of the Pajarito Plateau, filed an Appeal from a final determination issued by the Albuquerque Operations Office (AO) of the Department of Energy (DOE) on October 20, 1997. In its determination, AO partially granted a request for information that the Appellant 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). 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.

I. Background

In its request for information dated January 30, 1997 (Request), the Appellant sought records relating to five categories of information pertaining to various DOE transfer of lands to public entities in New Mexico and the legal rationale behind such transfers. (1) In a determination letter dated October 20, 1997 (Determination Letter), AO provided the Appellant with copies of 25 documents in their

entirety. AO also identified six other responsive documents. AO provided the Appellant with a redacted copy of one of the six documents but withheld the other five in their entirety. AO stated that the material withheld in each of the six documents was withheld pursuant to Exemption 5. AO asserted that the information withheld in the six documents consisted of predecisional personal opinions and recommendations. Release of such opinions could, AO believed, stifle open communications between decision makers and their advisors. AO further informed the Appellant that it had transferred to DOE Headquarters the Appellant's request regarding one of the categories of requested documents (Category 5).

Additionally, the Determination Letter provided a specific response to a question posed in the text of Category 3 of the Appellant's Request. Category 3 of the Request stated:

Because there are so many parcels of land that are already developed either by the County or by commercial developers in years past, why were none of the original homesteaders/legal heirs ever contacted if the DOE was involved in either the sale or transfer of such land. Some of these properties include the rifle range, the golf course, and other parcels of land? [sic] Please answer this question and provide the legal basis (Documents) under which these parcels of land were transferred to the county or sold to private developers/individuals.

Determination Letter at 1. With regard to Category 3, the Determination Letter stated that while the FOIA did not require agencies to answer questions, AO had asked the Los Alamos Area Office (LAAO) to respond to the question posed in Category 3. The Determination Letter went on to state that LAAO had informed AO that "they [LAAO] believe that in previous responses to you provided in meetings with Mr. Todd, the LAAO Manager, and in responses to your letters to Mr. Todd, Senator Domenici, Secretary Peña, and President Clinton, they have answered your questions in this regard."

In its Appeal, the Appellant argues that AO did not conduct an adequate search for responsive documents. Specifically, the Appellant asserts that the Determination did not provide a response to Category 2 of the Request. Category 2 specifically asked for documents "that the DOE relied upon that apparently made it legal for the DOE to give land back to the Pueblo of San Ildefonso." The Appellant further asserts that he was not provided with any of the documents referred to in the LAAO response to the question contained in Category 3. The Appellant also challenges the application of Exemption 5 to the withheld material and argues that AO should have attempted to segregate releasable material from the documents withheld in their entirety.

II. Adequacy of Search

The FOIA requires that federal agencies generally release documents to the public upon request. Following an appropriate request, the FOIA requires agencies to search their records for responsive documents. 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. See, e.g., Eugene Maples, 23 DOE ¶ 80,106 (1993); Native Americans for a Clean Environment, 23 DOE ¶ 80,149 (1993). 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).

To determine whether an agency's search was adequate, we must examine its actions under a "standard of reasonableness." McGehee v. CIA, 697 F.2d 1095, 1100-01 (D.C. Cir. 1983), modified in part on rehearing, 711 F.2d 1076 (D.C. Cir. 1983). This standard "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). Furthermore, the determination of whether a search was reasonable is "dependent upon the circumstances of the case." Founding Church of Scientology v. National Security Agency, 610 F.2d 824, 834 (D.C. Cir. 1979).

To examine the adequacy of the search which was conducted for documents responsive to Category 2 of the Request we contacted the FOIA Officer at AO. We were referred to an official at LAAO, the field office most likely to possess responsive documents. The official informed us that there had been no transfer of land to the Pueblo of San Ildefonso. See Memorandum of telephone conversation between Lisa Cummings, Office of General Counsel, LAAO, and Richard Cronin, OHA Staff Attorney (December 5, 1997). Consequently, no search was undertaken since documents would not exist. Given that LAAO determined that there had not been a transfer of land to the Pueblo of San Ildefonso and that consequently, no documents relating to such a transfer existed, we believe that the search conducted was adequate.

With regard to the search for documents pertaining to Category 3, AO informed us that LAAO was the field office most likely to contain responsive material. An official at LAAO informed us that documents responsive to Exemption 3 may exist. See Memorandum of telephone conversation between Lisa Cummings, Office of General Counsel, LAAO and Richard Cronin, OHA Staff Attorney (December 5, 1997). Consequently, we will remand this matter to AO so that it may coordinate another search for documents responsive to Category 3 of the Appellant's request.

III. Exemption 5

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 six documents at issue in this case are listed in Appendix A. After reviewing each document, we have determined, as more fully explained below, that five of the documents have certain additional segregable information which could be released to the Appellant. On remand, AO should release this material to the Appellant or issue another determination explaining why the material is being withheld. With regard to Document 2, because much of Document 2, a draft land utilization plan, did not originate within the agency, the Exemption 5 issues are distinct and require special treatment. Consequently, we find that AO should issue another determination specifically regarding the applicability of Exemption 5 or other exemptions to that document.

A. Document 1

Document 1 consists of a memorandum from a DOE official to various other DOE officials along with six attachments (Enclosures 1 and 2 and Tabs A, B, C and D). AO provided the Appellant with a redacted version of the memorandum and identified two of the attachments (Enclosures 1 and 2) as non-responsive to the Appellant's Request. (2) AO also identified three attachments which were withheld in their entirety. However, AO has informed us that it inadvertently stated in the Determination Letter that there were only three instead of four attachments which were withheld in their entirety pursuant to Exemption 5. AO also informed us that it had in fact reviewed all four remaining attachments and had decided to withhold all four in their entirety pursuant to Exemption 5. See Memorandum of telephone conversation between Elva Barfield, FOIA Officer, AO, and Richard Cronin, OHA Staff Attorney (December 9, 1997).

The memorandum in Document 1 contains analysis and recommendations regarding DOE's possible divestment of the Los Alamos Airport. The redacted portions of the memo contain specific recommendations regarding possible disposition of the Airport. The deleted portions are predecisonal and deliberative material concerning DOE options regarding the Los Alamos Airport. Consequently, we believe that Exemption 5 was properly applied to the redacted portions of the memorandum.

Tab A to Document 1 consists of a proposed departmental position regarding an OIG report on AO's compliance with aviation safety orders, standards and regulations along with general management and accounting for the AO air services program. After reviewing this material, we do not find it to be responsive to the Appellant's Request since it consists of a proposed departmental response to the OIG report and does not deal with any land transfer issues. Given that this document is non- responsive to the Appellant's Request, we need not consider whether the document could be withheld pursuant to Exemption 5.

Tab B consists of a memorandum outlining various issues regarding the possible transfer of the Los Alamos Airport to the County of Los Alamos. The documents outlines various arguments for and against the transfer of the property and as such is a predecisional and deliberative document. While almost all of the information contained in Tab B was properly withheld pursuant to Exemption 5, there is a small amount of non-deliberative information consisting of headings and titles and some segregable factual information which can be released to the Appellant. Specifically, the first paragraph on the first page of the memo as well as the signature block on page 3 and all material below it contains segregable factual information which can be provided to the Appellant.

Tab C consists of a one-page memorandum concerning the possible transfer of the Los Alamos Airport. The memorandum provides a brief history of events leading up to the DOE's decision to start consideration of the possibility of transferring land to the County of Los Alamos along with a brief summary regarding recommended options for land transfers. While the portion of the memorandum describing recommendations is predecisional and deliberative, much of the memorandum consists of segregable factual material. Specifically, the second and third paragraphs of the memorandum consists of segregable factual material which could be provided to the Appellant along with various headings and titles on the page and the signature block and the material below the signature block.

Tab D consists of two copies (on different types of paper) of a memorandum regarding the proposed transfer of the Los Alamos Airport to Los Alamos County along with a copies of documents in Tabs B and C. The vast majority of the material in the memorandum itself consists of various considerations and recommendations regarding a possible transfer of the Los Alamos Airport. This material is predecisonal and deliberative and thus properly withheld pursuant to Exemption 5. There is a small amount of segregable non-deliberative material consisting of most of the titles and headings which can be released. Additionally, the first paragraph on the first page of the memo appears to consists of segregable factual material which can be released to the Appellant.

B. Document 2

Document 2 consists of a one-page handwritten note to a DOE official with an attached letter from a Los Alamos County official (Los Alamos Letter) and a draft land utilization plan for DOE property created by Los Alamos County. The initial question arising from the application of Exemption 5 to this document is whether the portion of the document consisting of the Los Alamos Letter and a draft land utilization plan drafted by Los Alamos County can be considered an "inter-agency or intra- agency" document. Clearly the Los Alamos Letter and the draft land utilization plan were not created by a federal agency. However, courts have extended Exemption 5 protection for documents created outside of federal agencies under certain circumstances. In this regard, the Court of Appeals of the District of Columbia Circuit has held that "Exemption 5 permits an agency to protect the confidentiality of communications outside the agency so long as those communications are part and parcel of the agency's deliberative process. As such they remain intra-agency documents." Dow Jones & Co., Inc. v. Dep't of Justice, 917 F. 2d 571, 575 (D.C. Cir. 1990). Consequently, in light of the fact that the Los Alamos Letter and the draft land utilization plan were created outside of a federal governmental agency, we must specifically examine the role Document 2 played in DOE deliberations in order to determine whether it can appropriately be deemed an "intra-agency" document for Exemption 5 purposes. However, the Determination Letter does not provided any indication as to the role Document 2 played in the DOE's deliberative process other than a generalized assertion that the document sets forth "personal opinions and recommendations of the authors and are antecedent to the adoption of agency policy." Given the unique non-agency origin of most of the withheld material in Document 2 and to afford the Appellant an opportunity to formulate an effective appeal, we will remand this matter back to AO so it can issue another determination to address the considerations discussed above and to explain why Document 2 should be withheld under Exemption 5 and/or another exemption. Additionally, on remand AO should consider if any of the material in Document 2 can be segregated from withholdable material and provided to the Appellant. (3)

C. Document 3

Document 3 is a copy of a memorandum to the Assistant Manager for Projects and Facility Modernization with attached comments concerning the potential sale or donation of land to the Los Alamos County. The majority of the document consists of opinions and analysis of issues concerning the potential transfer of land to Los Alamos County. It contains recommendations as to steps the DOE should take if the decision is to be made to transfer property to the County. The document is predecisonal and deliberative. Thus, the majority of the material in this document was properly protected pursuant to Exemption 5. However, there is a small amount of segregable factual material which could be released to the Appellant. Specifically, the headings and titles on the first page of the memorandum are not deliberative material and should be released. Additionally, the first paragraph and the first sentence of the second paragraph of page one of the memorandum consist of segregable

factual material which should be released to the Appellant. Additionally the entire second page of the memorandum consists of segregable factual material which should be released. Lastly the top two title lines on the first page of the attachment are non-deliberative material that should also be released to the Appellant.

D. Document 4

Document 4 is a memorandum that outlines the specific land tracts which DOE would propose to offer to Los Alamos County along with an assessment of Los Alamos County's expected response to the offer. This document therefore is predecisonal and deliberative since it outlines DOE's negotiating position vis-a-vis Los Alamos County. While most of the material in this document is properly protected by Exemption 5, there is some segregable factual material. Specifically, the titles and headings along with the first paragraph on the first page of the memo should be released. The title and headings on page two and the signature block and the "cc" block are segregable factual material and should also be released.

E. Document 5

Document 5 consists of a memorandum with an attached draft lease agreement between the County of Los Alamos and the DOE. The vast majority of this predecisional document, such as the draft lease agreement itself, consists of predecisional, deliberative material. However, there is a small amount of non-deliberative or segregable factual material. The headings and titles on the memorandum page (first page of the document) are segregable factual material and should be released. Further, the first two sentences of the first paragraph of the memorandum page consist of segregable factual material which should also be released. In addition, the signature block and all material below the signature block on the memorandum page consists of segregable factual material which should also be released to the Appellant.

F. Document 6

Document 6 consists of a copy of a one-page letter sent to the Director of Real Estate at the University of New Mexico with an attached draft letter of intent to transfer a parcel of land from the DOE to the University of New Mexico. The entire draft letter of intent is deliberative and predecisonal and thus was properly withheld pursuant to Exemption 5. However, the one-page letter contains no deliberative material and is in itself not predecisional. Consequently, in the absence of further justification, Exemption 5 does not apply to the one-page letter. On remand, AO should either release the one-page letter portion of Document 6 or issue another determination explaining why the document is being withheld.

G. 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 AO properly applied Exemption 5 to most of the requested information, we must consider whether the public interest nevertheless demands 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 the opinions of individuals concerning different aspects of DOE decisions regarding the possible transfer of DOE property to the County of Los Alamos. The release of this information would in our opinion have a chilling effect on the willingness of employees and managers to make candid statements of opinion. Employees and managers would be less likely to communicate their opinions if they knew or suspected that an agency would release their opinions to the public. Consequently, we find that the existence of 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.

III. Summary

As discussed above, we will remand this matter to AO so that another search may be conducted for documents responsive to Category 3 of the Appellant's Request. Additionally, we will remand this matter to AO so that it may release the material described above concerning Documents 1, 2, 3, 4, 5 and 6 or issue another determination explaining why the material should be withheld. Consequently, the Appellant's Appeal will be granted in part. (4)

It Is Therefore Ordered That:

(1) The Appeal filed by the Homesteaders Association of the Pajarito Plateau on November 21, 1997, Case No. VFA-0355 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: December 22, 1997

APPENDIX A

Document No. Tittle

Memorandum to Larry Kirkman, etc., from Don Landry, Subject: A Plan for Negotiating with Los Alamos County Concerning Land, Buildings, Airport, Water Systems, and Assistance Payments.

Letter to Jerry Bellows from James M. Flint dated October 6, 1993.

Memorandum to Assistant Manager for Projects and Facilities Modernization from Richard W. Earl, Subject: Los Alamos Visit, dated August 23, 1993.

Memorandum to Bernard van der Hoeven from Larry Kirkman, Subject: Transfer of DOE Lands to Los Alamos County, dated February 13, 1995.

Memorandum to Jane Griego from E. Dennis Martinez, Subject: Lease of the 9th Street Apartment to the Incorporated County of Los Alamos, dated January 31, 1996.

Letter to Kim D. Murphy from Corville J. Nohava dated February 7, 1997.

(1)Specifically, the Appellant requested documents concerning: (1) the legal theories under which the land of the original homesteaders in the Los Alamos area were taken; (2) the legal justification for the DOE's transfer of land to the Pueblo of San Ildefonso; (3) the legal basis justifying the sale or transfer of various parcels to County of Los Alamos; (4) any correspondence and real estate information sent between the DOE, Los Alamos County, the State of New Mexico and other entities as it relates to the transfer of land from the Los Alamos National Laboratory (LANL) to the County of Los Alamos; and (5) the identification of DOE sites where DOE has transferred land to another entity along with documentation that enabled the DOE to effect the transfer.

(2)While the Appellant has not challenged the identification of Attachments 1 and 2 as non- responsive, we have reviewed those Attachments. Attachment 1 is a collection of two charts concerning Los Alamos Airport aircraft operations and a map of the Los Alamos Airport. Attachment 2 is a DOE Office of the Inspector General Report (OIG) regarding Aircraft Management at AO. Neither attachment is responsive to the Appellant's Request.

(3)Document 2 also contains the home phone number of a DOE employee, to which Exemption 6 might be applicable. See Information Focus on Energy, Inc., 26 DOE ¶ 80,191 (1997) (home phone numbers protectable pursuant to Exemption 6).

(4)We have also been informed that AO has discovered another responsive document, a memorandum to various DOE officials dated February 15, 1995, that was not previously disclosed to the Appellant. On remand AO shall also issue a determination regarding this document.