James R. Hutton, Case No. VFA-0359, January 5, 1998

Case No. VFA-0359, 27 DOE ¶ 80,101

January 5, 1998

DECISION AND ORDER

OF THE DEPARTMENT OF ENERGY

Motion for Reconsideration

Name of Petitioner:James R. Hutton

Date of Filing: December 3, 1997

Case Number: VFA-0359

On December 3, 1997, James R. Hutton (the Appellant) filed a Motion for Reconsideration of a Decision and Order issued by the Office of Hearings and Appeals (OHA) of the Department of Energy (DOE) on November 13, 1997. James R. Hutton, Case No. VFA-0341. For the reasons detailed below, we deny the Appellant’s request that we reconsider our ruling that the names and position numbers of federal employees listed on a "retention register" are exempt from disclosure under Exemption 6 of the Freedom of Information Act (FOIA), 5 U.S.C. §552(b)(6); 10 C.F.R. §1004.10(b)(6).

Background

On September 9, 1997, the Appellant submitted a FOIA request to the Oak Ridge Operations Office of the DOE (Oak Ridge) seeking a copy of a retention register prepared in anticipation of a "reduction in force" (RIF).(1) On September 23, 1997,

in response to the Appellant’s FOIA request, Oak Ridge issued a determination in which it withheld the entire retention register on the grounds that disclosure of this document "would constitute a clearly unwarranted invasion of personal privacy" under Exemption 6 of the FOIA.

On October 14, 1997, the Appellant filed an appeal of this determination with OHA. On November 13, 1997, we issued a Decision and Order that remanded the case to Oak Ridge with instructions to redact the names and position numbers of the listed employees, and release the retention register to the Appellant. We ordered the redaction of data that identified the listed employees to avoid a clearly unwarranted invasion of personal privacy under Exemption 6.

On December 3, 1997, the Appellant filed the instant Motion seeking reconsideration of the Decision and Order issued on November 13, 1997. In this Motion, the Appellant contends that federal employees have no privacy interest in the disclosure of the details of their federal employment because this information is generally available to the public.(2) He further disputes that the listed employees have a privacy interest in their names in the context of the retention register because this document does not directly identify the employees who will be terminated, but only ranks and categorizes these employees. The Appellant further claims that the redacted information should be disclosed because employees have a "particularized need" to know how they are ranked in relation to others, and whether the agency is conducting the reduction in force in accordance with law.

Analysis

As detailed below, we will deny the Appellant’s Motion for Reconsideration because he has failed to present evidence that we committed error by ruling that the names and position numbers of federal employees listed on a retention register are exempt from disclosure under Exemption 6 of the FOIA. (3)

As we indicated in our initial Decision, the purpose of Exemption 6 is to protect individuals from clearly unwarranted invasions of their personal privacy. 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 a significant privacy interest would be invaded by the disclosure of the record. If no privacy interest is identified, the record may not be withheld pursuant to Exemption 6. Second, the agency must determine whether release of the document would further the public interest by shedding light on the operations and activities of the Government. Finally, the agency must weigh the privacy interests it has identified against the public interest in order to determine whether the release of the record would constitute a clearly unwarranted invasion of personal privacy. See James R. Hutton, Case No. VFA-0341 (Nov. 13, 1997).

The Privacy Interest

After considering Appellant’s arguments, we reaffirm our previous ruling that an employee has a privacy interest in his or her name and position number in the context of a retention register because the disclosure of this information might suggest the employee’s vulnerability to a reduction in force.

We agree with the Appellant that a federal employee often has no privacy interest in his or her name or status as a federal employee. However, the Appellant has failed to recognize that a federal employee does have a privacy interest in his or her name when it is linked to personally sensitive information. See The Cincinnati Enquirer, 25 DOE ¶ 80,206 at 80,768-69 (1996); William H. Payne, 25 DOE ¶ 80,190 at 80,726-27 (1996); The News Tribune, 25 DOE ¶ 80,181 at 80,699-700 (1996). See also Raymond T. Number & Patricia Ann Krauthaus, Information as a Commodity: New Imperatives of Commercial Law, 55 Law & Contemp. Probs., Spring 1992, at 103, 124 (under FOIA law, a person has an interest in "information about himself if the information is personally sensitive, if it is private, and if it is to be used or disclosed in a form related specifically to the individual.").

An individual’s vulnerability to a reduction in force is sensitive information. Disclosure of this information may cause the individual to suffer embarrassment and financial harm. As such, a federal employee has a privacy interest in the disclosure of such information. See Rosenfeld v. HHS, 3 Gov’t Disclosure Serv. (P-H) ¶ 83,082 at 83,617 (D.D.C. Jan. 31, 1983), aff’d on other grounds, No. 83-1341 (D.C. Cir. Nov. 11, 1983) (employee has privacy interest in disclosure of name on proposed reduction in force list); National Ass’n of Retired Fed. Employees v. Horner, 879 F.2d 873 (D.C. Cir. 1989) (federal annuitant has privacy interest in disclosure of status and receipt of pension); Metropolitan Life Ins. Co. v. Usery, 426 F. Supp. 150, 168-169 (D.D.C. 1976), aff'd on other grounds sub nom. National Org. for Women v. Social Sec. Admin., 736 F.2d 727 (D.C. Cir. 1984) (employee has privacy interest in disclosure of promotion prospects and reasons for termination).

The Public Interest in Disclosure

The Appellant has also failed to convince us that we committed error by ruling that the public interest in the disclosure of the names and position numbers of the employees listed in the retention register was insubstantial or nonexistent.

The Appellant’s contention that other employees have a "particularized need to know" this information ignores the holding of the Supreme Court in Department of Justice v. Reporters Comm. for Freedom of the Press, 489 U.S. 749 (1989) (Reporters Committee). In Reporters Committee, the Supreme Court reaffirmed that the public interest standard must be used in the balancing test to determine whether the disclosure of documents would constitute an unwarranted invasion of personal privacy under the FOIA. The Court indicated that information advances the public interest only if the information is likely to contribute "significantly to public understanding of the operations of the government." Reporters Committee, 489 U.S. at 775 (quoting 5 U.S.C. § 552(a)(4)(A)(iii)). See also Department of Defense v. Federal Labor Relations Auth., 510 U.S. 487, 494-95 (1994). The Court also held that the requester’s personal interest is irrelevant in determining whether documents should be released under the FOIA. Reporters Committee, 489 U.S. at 775.

Here Appellant has failed to demonstrate the existence of a significant public interest in the disclosure of the names of the employees. He claims that the names of the employees are needed to determine whether the agency is conducting the reduction in force in accordance with law. However, as we have noted in other situations, the release of names tells nothing about the operations and activities of government. See Michael A. Grosche, 26 DOE ¶ 80,146 at 80,644 (1996). Thus, here we find that both the public and privacy analyses support withholding the names of the employees listed on the retention register.

It Is Therefore Ordered That:

(1) The Motion for Reconsideration filed by James R. Hutton on December 3, 1997, Case Number VFA-0359, is hereby denied.

(2) 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 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: January 6, 1998

(1)The retention register contains information that permits the reader to rank each named employee in terms of his or her vulnerability to a reduction in force. It contains the names and position numbers of employees who are subject to a reduction in force, and sets forth, amongst other things, information concerning the employee’s tenure, job classification series, and performance appraisal.

(2)The Appellant concedes that an employee has a privacy interest in his or her performance evaluation, and has indicated that he has no objection to the non- disclosure of such information.

(3)The DOE regulations governing FOIA requests and appeals do not contain a provision that permits a party to move for reconsideration of an appellate decision issued by OHA. 10 C.F.R. Part 1004. Nevertheless, based on 10 C.F.R.§1003.55(b)(1), we have, on occasion, reconsidered FOIA decisions based on significantly changed circumstances. Moreover, we have also reconsidered FOIA decisions when a party has provided specific, convincing evidence of error. See Robert Condra, 22 DOE ¶80,141 (1992); Chuck Hansen, 18 DOE ¶ 80,116 (1988).