Charlene Pazar, Case No. VFA-0364, January 20, 1998

Case No. VFA-0364, 27 DOE ¶ 80,104

January 20, 1998

DECISION AND ORDER

OF THE DEPARTMENT OF ENERGY

Appeal

Name of Petitioner: Charlene Pazar

Date of Filing: December 22, 1997

Case Number: VFA-0364

On December 22, 1997, Charlene Pazar (Appellant) filed an Appeal from a determination issued to her by the Department of Energy’s (DOE) Rocky Flats Field Office (RFFO). RFFO issued this determination on November 19, 1997 in response to the request for information the Appellant submitted 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 Appeal, if granted, would require that RFFO release in its entirety a document it withheld.

The FOIA generally requires that documents held by the federal government be released to the public upon request. However, Congress has provided nine exemptions to the FOIA that set forth the types of information agencies are not required to release. Under the DOE’s regulations, a document that is exempt from disclosure under the FOIA shall nonetheless be released to the

public whenever the DOE determines that disclosure is in the public interest. 10 C.F.R. § 1004.1.

I. Background

In her FOIA request, the Appellant sought access to a copy of the “Final Report that was prepared for the RFFO Office of Chief Counsel by David Frederickson of the Albuquerque Operations Office.” In its response, RFFO withheld the requested report (the Frederickson report) pursuant to Exemption 5 of the FOIA, 5 U.S.C. § 552(b)(5). Specifically, the Deputy Counsel stated that the Frederickson report is exempt from mandatory disclosure because it is privileged as attorney work product. The Appellant argues in

response that disclosure would serve the public interest because the Frederickson report was funded by taxpayers.(1)

II. Analysis

A. Adequacy of the Determination

Essentially, the RFFO determination contained one substantive sentence, “[t]his document is an ?attorney work-product privilege’ [sic] and is withholdable under exemption (b)(5).” We find this determination to be inadequate. OHA has held that a description of a withheld document is adequate if it identifies the subject matter and, if available, the date upon which the document was produced and its authors and recipients. Arnold & Porter, 12 DOE ¶ 80,108 at 80,527 (1984) (Arnold & Porter). The description need not, however, contain information that would compromise the privileged nature of the document. Id. at 80,527. A determination must also adequately justify the withholding of a document by explaining briefly how the claimed exemption applies to the document. Id.; Paul W. Fox, 25 DOE ¶ 80,150 (1995). With the exception of naming the author of the Frederickson report, none of the other descriptive items required by the Arnold & Porter decision were provided in the determination letter. More importantly, RFFO failed to provide any explanation of how the attorney work-product privilege applies to the Frederickson report. However, for reasons of administrative efficiency, we will decide this Appeal based on our own review of the Frederickson report and information regarding that document gathered from our discussions with RFFO.

B. Exemption 5

Exemption 5 protects from mandatory disclosure “inter-agency or intra-agency memorandums or letters which would not be available to a party other than an agency in litigation with the agency.” 5 U.S.C. § 552(b)(5). The U.S. Supreme Court has held that this exemption incorporates every civil discovery privilege that the government enjoys under statutory and case law. United States v. Weber Aircraft Corp., 465 U.S. 792, 799 (1984) (Weber); FTC v. Grolier, 462 U.S. 19 (1983) (Grolier). See also Peter T. Torell, 15 DOE ¶ 80,127 (1987). Therefore, any material that is privileged in civil discovery is also shielded from mandatory disclosure under Exemption 5. Accordingly, if the Frederickson report falls within a civil discovery privilege, it may be withheld under Exemption 5.

As previously stated, RFFO relied upon the attorney work-product privilege in withholding the Frederickson report. The attorney work-product privilege serves to “provide working attorneys with a ?zone of privacy’ within which to think, plan, weigh facts and evidence . . . , and prepare legal theories.” Coastal States Gas Corp. v. DOE, 617 F.2d 854, 864 (D.C. Cir. 1980). It protects documents prepared by an attorney in contemplation of litigation. Hickman v. Taylor, 329 U.S. 495, 509-10 (1947); Fed. R. Civ. P. 26(b)(3). This privilege is also applicable to material prepared by a non-attorney who was supervised by an attorney. Nishnic v. Department of Justice, 671 F. Supp. 771, 772-73 (D.D.C. 1987). Finally, because factual work-product is not “routinely” or “normally” discoverable, it is also protectable under Exemption 5. See Grolier, 462 U.S. at 26; Weber, 465 U.S. at 799.

We find that the Frederickson report meets each of the requirements for finding a document to be attorney work-product. The Frederickson report was prepared in contemplation of litigation because it was created solely in response to a Merit Systems Protection Board (MSPB) claim by a Mr. Ridenour. See Record of Telephone Conversation between Dawn L. Goldstein, Staff Attorney, OHA and James D. Long, Jr., Staff Attorney, Office of Chief Counsel, RFFO (January 5, 1998). The purpose of the Frederickson report was to provide the RFFO Office of Chief Counsel with a discussion of the factual bases for Mr. Ridenour’s MSPB claims. Id. It was prepared by Mr. Frederickson, a non-attorney, who was functioning for this purpose under the direct supervision of the RFFO Office of Chief Counsel. Id. Further, the Frederickson report has been kept strictly confidential by the RFFO Office of Chief Counsel. Id. We conclude that the withheld Frederickson report is clearly attorney work-product.

C. Public Interest Determination

The fact that material requested falls within a statutory exemption does not necessarily preclude release of the material to the requester. The DOE regulations implementing the FOIA provide that “[t]o the extent permitted by other laws, the DOE will make records available which it is authorized to withhold under 5 U.S.C. § 552 whenever it determines that such disclosure is in the public interest.” 10 C.F.R. § 1004.1.

We find that release of the withheld Frederickson report would not be in the public interest. In her Appeal, the Appellant argues that the withheld Frederickson report should be released because it was funded by the taxpayers. However, many documents are produced by employees of the federal government with taxpayer money that are nonetheless withholdable under the FOIA. In this case, the release of the Frederickson report would result in foreseeable harm to the interests protected by the attorney work-product privilege. See FOIA Update, U.S. Department of Justice, Office of Information and Privacy (Spring 1994); Memorandum from Janet Reno, Attorney General, to Heads of Departments and Agencies (October 4, 1993) (in order to withhold material, agency must first determine that release would foreseeably harm basic institutional interests that underlie Exemption 5). As Justice Brennan stated in Grolier, “[i]t would be of substantial benefit to an opposing party (and of corresponding detriment to an agency) if the party could obtain work product generated by the agency in connection with earlier, similar litigation against other persons . . . [H]e could gain insight into the agency’s general strategic and tactical approach to deciding . . . on what terms [lawsuits] may be settled.” Grolier, 462 U.S. 19 at 30 (Brennan, J., concurring).

The Frederickson report discusses facts and issues underlying several ongoing legal conflicts between DOE and Mr. Ridenour. See Record of Telephone Memorandum between Dawn L. Goldstein and James D. Long, Jr. (January 5, 1998). Further, although the MSPB action that was the catalyst for the creation of the Frederickson report has been dismissed, Mr. Long believes that because that case was dismissed on procedural grounds, it will likely be refiled. We therefore find that the release of the Frederickson report could conceivably compromise the DOE’s strategy and tactics in the cases concerning Mr. Ridenour.

D. Conclusion

For the reasons set forth above, we find that RFFO correctly determined that the withheld Frederickson report is exempt from mandatory disclosure pursuant to Exemption 5, and that release of the report would not be in the public interest. The Appeal will therefore be denied.

It Is Therefore Ordered That:

(1) The Appeal filed by Charlene Pazar on December 22, 1997 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 located, or in the District of Columbia.

George B. Breznay

Director

Office of Hearings and Appeals

Date: January 20, 1998

(1)*/ The Appellant also questioned the propriety of Mr. Frederickson preparing the report and his method of preparation. In addition, the Appellant wished to know the reason for the report and Mr. Frederickson’s qualifications to prepare such a report. An Appeal under FOIA is not the proper forum for these questions, since the FOIA’s object is to make available to the public non-exempt agency records. In addition, requests for documents that might answer these questions are outside the scope of the Appellant’s initial FOIA request. The OHA will therefore not consider these questions in the context of the present Appeal. Cox Newspapers, 22 DOE ¶ 80,106 at 80,512 (1992).