Case No. VFA-0368, 27 DOE ¶ 80,108

February 3, 1998

DECISION AND ORDER

OF THE DEPARTMENT OF ENERGY

Appeal

Name of Petitioner: The Oregonian

Date of Filing: January 5, 1998

Case Number: VFA-0368

On January 5, 1998, The Oregonian, a newspaper located in Portland, Oregon, filed an Appeal from a determination issued to it by the Department of Energy’s Bonneville Power Administration (BPA). The BPA issued this determination in response to requests for information that the newspaper 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 documents that the BPA withheld be released in whole or in part.

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 its FOIA requests, The Oregonian sought access to all expense records and related correspondence pertaining to the defense of lawsuits filed by Chase Manhattan Bank and Tenaska Washington Partners II against the BPA. In response to the requests, the BPA released a wealth of material - mainly copies of contracts by which it has procured legal advice, analysis and assistance in contesting the lawsuits. The BPA withheld a number of documents, including travel vouchers, estimates of future litigation expenses, and invoices for shipping, travel, courier and legal expenses pursuant to the attorney-client and attorney work product privileges encompassed by Exemption 5 of the FOIA. In its determination, BPA

stated that release of these documents “might prejudice BPA in the current litigation with Tenaska by revealing BPA’s litigation strategies.” BPA Determination at 2.

In its Appeal, The Oregonian claims that BPA has applied Exemption 5 too broadly in withholding these expense-related documents in their entirety. Specifically, the newspaper contends that BPA has improperly withheld documents “which cannot possibly reveal attorney thought processes or truly confidential attorney-client communications.” Appeal at 3.

II. Analysis

A. Applicability of Exemption 5

Exemption 5 shields from mandatory disclosure “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). This Exemption is generally recognized as encompassing the attorney-client, attorney work product and governmental deliberative process privileges. See, e.g., Coastal States Gas Corp. v. DOE, 617 F.2d 854 (D.C. Cir. 1980) (Coastal States). As previously stated, the BPA relied upon the attorney- client and attorney work product privileges of Exemption 5.

The attorney-client privilege exists to protect confidential communications between attorneys and their clients made for the purpose of securing or providing legal advice. In Re: Grand Jury Proceedings 88-9 (MIA), 899 F.2d 1039 (11th Cir. 1990). Not all communications between attorney and client are privileged, however. The courts have limited the protection of the privilege to those disclosures necessary to obtain or provide legal advice. Accordingly, the privilege does not extend to social, informational, or procedural communications between attorney and client.

The attorney work product privilege protects from disclosure documents which reveal the “mental impressions, conclusions, opinions, or legal theories of an attorney or other representative of a party concerning the litigation.” Fed. R. Civ. P. 26(b)(3). This privilege is applicable to documents that were prepared by an attorney “in contemplation of litigation.” Coastal States at 864.

It is well settled that attorney fee information is generally not privileged. See, e.g., Clark v. American Commerce National Bank, 974 F.2d 1039 (9th Cir. 1992) (Clark); United States v. Leventhal, 961 F.2d 936, 940 (11th Cir. 1992); Indian Law Resource Center, 477 F. Supp. 144, 147 (D.D.C. 1979). However, in those cases where a party has been able to show that the attorney billing statements at issue reveal litigation strategy, substantive communications or the specific nature of the services provided by the attorneys, such as research into a particular area of the law, courts have found them to be privileged. Clark, 974 F.2d at 129. Accordingly, we have held that information in expense records pertaining to the total amount charged by a law firm for a litigation, the attorneys’ identities, their hourly rates, and the costs of travel, reporting services and document reproduction are generally not exempt from disclosure pursuant to the attorney-client or attorney work product privileges. See, e.g., William H. Payne, 26 DOE ¶ 80,161 (1997); C.D. Varnadore, 24 DOE ¶ 80,123 (1994). Information that could reveal the litigation strategy, thoughts or impressions of the attorneys, however, such as dates and descriptions of the specific services provided and the monthly and daily totals of hours billed by each attorney, is protected from mandatory disclosure under these privileges. Id.

Applying these principles to the present case, we find that some of the material withheld by BPA is not subject to the attorney-client or attorney work product privileges. This non-exempt material includes information pertaining to travel, copying, communications, shipping and courier service expenses, as well as the attorneys’ identities. Based on the record before us, we cannot conclude that release of this information would reveal BPA’s litigation strategy or the mental impressions, conclusions, or legal theories of their attorneys.

These expense statements, however, also contain information which could reflect BPA’s litigation strategy or the thoughts and conclusions of BPA’s outside counsel. This information consists of the descriptions of the specific services performed by the attorneys, the dates on which those services were performed, the hours billed by each attorney, and the amounts charged for each attorney’s services. Disclosure of this information would provide opposing counsel with insights into BPA’s litigation strategy and would reveal the timing and intensity of the legal services provided. Release of the number of hours billed by the attorneys, as well as the dollar amounts charged, would indicate the manner in which the outside counsel’s legal services were being allocated and could therefore reveal an important component of BPA’s legal strategy. This information was therefore properly withheld under Exemption 5.

B. Segregability

Although the attorneys’ billing statements contain some privileged information, BPA has not adequately segregated non-exempt material from these documents. The FOIA requires that “[a]ny reasonably segregable portion of a record shall be provided to any person requesting such record after deletion of the portions which are exempt under this subsection.” 5 U.S.C. § 552(b). However, segregation and release of non-exempt material are not necessary when it is inextricably intertwined with the exempt material, such that release of the non-exempt material would compromise the confidentiality of the withheld material. Lead Industries Association v. OSHA, 610 F.2d 70, 83-86 (2d Cir. 1979).

In view of the foregoing, we will remand this matter to BPA. On remand, BPA should review the withheld material in accordance with the guidelines set forth above, and should make every reasonable attempt to segregate and release non-exempt material.

C. The Public Interest in Disclosure

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 exempt material would not be in the public interest. Disclosure of the exempt portions of these expense statements would harm the interests protected by the attorney- client and attorney work product privileges by revealing the BPA’s litigation strategy and the thought processes of outside counsel. BPA’s ability to conduct this litigation in an effective and efficient manner would therefore be compromised. Moreover, release of this information could discourage BPA’s outside counsel from providing similarly detailed information in future billings, thus impeding BPA’s ability to effectively monitor and control legal costs. Accordingly, we conclude that release of the withheld information would result in foreseeable harm to the interests that are protected by Exemption 5. 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).

D. Conclusion

For the reasons set forth above, we will remand this matter to BPA. On remand, BPA should withhold those portions of the expense information that we have found to be exempt from mandatory disclosure and then either release the remaining portions or provide specific justifications for withholding any additional material.

It Is Therefore Ordered That:

(1) The Appeal filed by The Oregonian on January 5, 1998 is hereby granted as set forth in paragraph (2) below.

(2) This matter is hereby remanded to the Bonneville Power Administration for further proceedings consistent with the guidelines set forth in the above Decision.

(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 located, or in the District of Columbia.

George B. Breznay

Director

Office of Hearings and Appeals

Date: February, 3, 1998