Case No. VFA-0370, 27 DOE ¶ 80,116

March 10, 1998

DECISION AND ORDER

OF THE DEPARTMENT OF ENERGY

Appeal

Name of Petitioner: Janice C. Curry

Date of Filing: January 23, 1998

Case Number: VFA-0370

On January 23, 1998, Janice C. Curry (Curry) filed an Appeal from a determination that the Office of Environmental Management (EM) of the Department of Energy (DOE) issued to her. The determination responded to a request for information 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. Ms. Curry challenges EM’s withholding of responsive information.

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 which set forth the types of information agencies are not required to release. Under the DOE’s regulations, a document exempt from disclosure under the FOIA shall nonetheless be released to the public whenever the DOE determines that disclosure is not contrary to federal law and in the public interest. 10 C.F.R. § 1004.1.

I. Background

Curry was employed by a DOE contractor at DOE headquarters in Washington, D.C. In January and February 1997, some of Curry’s co-workers documented incidents in which Curry allegedly displayed aggressive, threatening behavior towards her colleagues. Curry was terminated in March 1997. On March 6, 1997, Curry requested that the DOE provide her “any and all documents relating to my employment as a contractor at the Department of Energy. Specifically a letter that was submitted around the week of February 3, 1997, stating that I was a threat to public health and safety.” Letter from Curry to Freedom of Information and Privacy Act Office, DOE (March 6, 1997) (OHA Case No. VFA-0313). On June 20, 1997, EM responded that it had identified one responsive document, a February 6, 1997 memorandum to Cynthia Brawner-Gaines of EM’s Office of Minority Affairs (EM/MA), discussing a request to remedy a personnel problem that created an unsafe working environment in EM. Letter from Barry Clark, EM, to Curry (June 20, 1997) (OHA Case No. VFA- 0313). However, EM withheld the document in its entirety pursuant to Exemption 6 of the FOIA. Id. Curry filed an Appeal with OHA on July 24, 1997. OHA reviewed the withheld document and remanded the matter to EM for reconsideration of the basis for withholding and for a further search for responsive documents. Janice Curry, 26 DOE ¶ 80,218 (1997) (Curry). On January 16, 1998,

EM issued a new determination, stating that it had located two additional responsive documents, but was withholding all three documents in their entirety also under FOIA Exemptions 6, 7(C) and 7(F). Letter from Barry R. Clark, EM, to Curry (January 16, 1998) (Determination Letter). On January 23, 1998, Curry filed this Appeal which, if granted, would require EM to release the responsive documents to her.

II. Analysis

A. Exemption 6

Exemption 6 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).

In order to determine whether information 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. Ripskis v. Department of HUD, 746 F.2d 1, 3 (D.C. Cir. 1984). 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. See Hopkins v. Department of HUD, 929 F.2d 81, 88 (2d Cir. 1991); Department of Justice v. Reporters Comm. for Freedom of the Press, 489 U.S. 749 (1989) (Reporters Committee); FLRA v. Department of Treasury Financial Management Service, 884 F.2d 1446, 1451 (D.C. Cir. 1989), cert. denied, 110 S. Ct. 864 (1990). 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. Reporters Committee, 489 U.S. at 762-770.

1. Privacy Interest

In its determination, EM stated that the three withheld documents “allege that on numerous occasions [Curry] engaged in physically threatening and intimidating behavior and, as a result, . . . co-workers feared for their physical safety.” EM withheld the documents because the allegations were “made by a relatively small number of individuals and concerned events in which [Curry] participated, . . . [which] could lead to ascertainment of the identity of the individuals.” Determination Letter at 1. Where a person’s fear of reprisals from the subject of a communication is “reasonable” based on either demonstrated fact or inferences supported by reasonable claims, privacy interests support the application of Exemption 6. Fine v. DOE, 823 F. Supp. 888, 895 (D. N. M. 1993) (Fine) (quoting Holy Spirit Association for the Unification of World Christianity v. F.B.I., 683 F.2d 562, 565 (D.C. Cir. 1982) (upholding agency’s nondisclosure of letters describing bizarre activities of plaintiff due to author’s fear of reprisal)). However, after reviewing the withheld documents, we find that EM has not offered facts or supported inferences tending to show that Curry may be inclined to harass or intimidate her former colleagues. All of the incidents discussed in the memos occurred one year ago at DOE headquarters. EM presented no evidence that Curry has harassed, intimidated, or even attempted to communicate with her former colleagues since the allegations surfaced and she lost her job. As the court stated in Fine,

Defendant has offered neither facts nor supported inferences tending to show plaintiff might be inclined to harass or intimidate persons. Plaintiff is no longer employed by the defendant so he is not in a position on-the-job to harass or intimidate employees of DOE/OIG and/or its contractors. The Court, therefore, does not find justifiable defendant’s repeated invoking of Exemption 6 to prevent harassment or intimidation by plaintiff.

Fine, 823 F. Supp. at 895-96 (quoted in Curry, 26 DOE at 80,853). Curry is no longer employed at the DOE site where these incidents allegedly occurred, and thus is not in a position to harass the authors of the three documents at their offices. In fact, even though she claims to know who wrote the documents, she has had no contact with those individuals since her employment ended. Memorandum of Telephone Conversation between Curry and Valerie Vance Adeyeye, OHA Staff Attorney (February 23, 1998). Therefore, we find that EM has not offered facts supporting its use of Exemption 6 to withhold the documents to prevent harassment or intimidation by the requester.

Nonetheless, there is a privacy interest in the names and identifying information of those individuals who provided information to their managers about the alleged threatening behavior. Information that identifies a specific individual can be protected under Exemption 6. Department of State v. Ray, 502 U.S. 154, 176 (1991) (“[t]he invasion of privacy becomes significant when personal information is linked to particular interviewees”). Even though there was no evidence of a formal investigation, we find a privacy interest in the opinions expressed in these documents. See Dennis McQuade, 25 DOE ¶ 80,158 (1996) (finding a privacy interest in the candid opinions of witnesses concerning their co-workers). Therefore, we find a significant privacy interest in the contents of the withheld documents.

2. Public Interest

The Supreme Court has held that there is a public interest in disclosure of information that “sheds light on an agency’s performance of its statutory duties.” Reporters Committee, 489 U.S. at 773; Marlene Flor, 26 DOE ¶ 80,104 at 80,511 (1996) (Flor). The requester has the burden of establishing that disclosure would serve the public interest. Flor, 26 DOE at 80,511 (quoting Carter v. Department of Commerce, 830 F.2d 388 (D.C. Cir. 1987)). We find that Curry has not met this burden, and that there is no public interest in the responsive material.

Curry contends that the release of the material being withheld is in the public interest because it describes the actions, taken or not taken, by government employees in response to the written complaints about her behavior. We do not agree. The release of the withheld material would not aid the public in understanding how EM/MA performs its statutory duties. The information is very specific to several incidents in the workplace, and does not shed light on the general operations or policy of EM. Thus, we conclude that there is no public interest in the responsive material, and EM properly invoked the protection of Exemption 6 in its withholding.

B. Exemption 7

EM also invoked the protection of Exemptions 7(C) and 7(F) in withholding the three documents from Curry. Exemption 7(C) allows an agency to withhold “records or information compiled for law enforcement purposes, but only to the extent that the production of such law enforcement records or information . . . (C) could reasonably be expected to constitute an unwarranted invasion of personal privacy . . . .” 5 U.S.C. § 552(b)(7)(C); 10 C.F.R. § 1004.10(b)(7)(iii). Exemption 7(F) permits an agency to withhold records or information compiled for law enforcement purposes “if such disclosure could reasonably be expected to endanger the life or physical safety of any individual.” 5 U.S.C. § 552(b)(7)(F); 10 C.F.R. § 1004.10(b)(7)(vi). We find that Exemptions 7(C) and 7(F) do not apply in this case.

The threshold requirement in any Exemption 7 inquiry is whether the documents are compiled for law enforcement purposes, i.e. as part of or in connection with an agency law enforcement proceeding. See William Payne, 26 DOE ¶ 80,144 (1996); F.B.I. v. Abramson, 456 U.S. 615, 622 (1982). An organization withholding material under Exemption 7 must have statutory authority to enforce a violation of a law or regulation within its authority. Church of Scientology v. Department of the Army, 611 F.2d 738, 748 (9th Cir. 1979) (remanding to Naval Investigative Service to show that investigation involved enforcement of statute or regulation within its authority). For example, we have consistently found that the DOE’s Office of the Inspector General (IG) compiles reports for law enforcement purposes within the meaning of Exemption 7. See Richard Levernier, 26 DOE ¶ 80,182 (1997) (“The IG is a classic example of an organization with a clear law enforcement mandate.”); Keci Corporation, 26 DOE ¶ 80,149 (1997); William Payne, 26 DOE ¶ 80,144 (1996); Burlin McKinney, 25 DOE ¶ 80,149 (1995). After a review of the facts of this case, we find that EM/MA has not provided evidence that it has the “requisite law enforcement mandate” to invoke the protection of Exemption 7. See, e.g., Church of Scientology International v. IRS, 995 F.2d 916, 919 (9th Cir. 1993) (law enforcement mandate provided by enforcement provisions of federal tax code). Without evidence of the statutory foundation of the alleged law enforcement authority of EM/MA’s ombudsman, we cannot apply Exemption 7 in this case. Even assuming, arguendo, that Exemption 7 applies, it would permit the withholding of no information other than that previously identified as exempt from disclosure under Exemption 6.

C. Segregability

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. . . .” 5 U.S.C. § 552(b) (1982). We do not agree with EM that “virtually the entire content of each [document] would reveal the identity of the person providing it.” Determination Letter at 4. EM writes in its determination that “names, dates, places, conversations, descriptions of events and information that would lead to the ascertainment of the positions of the authors” can be considered protected under Exemption 6. However, in Fine the court stated that although identifying information and personal opinions are exempt, a document should not be withheld in its entirety if it contains factual, non- private information. Fine, 823 F. Supp. at 898. The court did not extend the protection of Exemption 6 to a conversation that occurred while the requester was present. Id. (“No information of a private nature is contained therein, nor does the fact that this conversation was memorialized in a memorandum raise it to the level of a significant privacy interest.”).

We find that there is non-exempt, reasonably segregable material in the withheld documents that can be disclosed under the FOIA. Specifically, the February 7, 1997 memorandum to Ms. Brawner- Gaines, released twice to OHA for review, contains information that is not identifiable to a specific individual. Paragraph 1 does not contain material that would “lead to the ascertainment of the position of the author.” Paragraph 2 contains non-exempt material that could be released with appropriate redactions and still be meaningful to the requester. On page 2, Paragraph 1 contains a substantial amount of non-exempt, segregable material, as does Paragraph 2 and its three sub- paragraphs. (1) Those documents recounting conversations in which Curry participated are also subject to the analysis in the previous paragraph. Accordingly, we shall remand this matter to EM for the purpose of issuing a new determination to Ms. Curry.

It Is Therefore Ordered That:

(1) The Appeal filed by Janice C. Curry on January 23, 1998, Case Number VFA-0370, is hereby granted as specified in Paragraph (2) below, and is denied in all other respects.

(2) This matter is hereby remanded to the Department of Energy’s Office of Environmental Management, which shall issue a new determination in accordance with the guidance set forth in the above Decision and Order.

(3) This is a final Order of the Department of Energy from 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: March 10, 1998

(1)Some of the information in the memorandum to Ms. Brawner-Gaines may, however, be protected under Exemption 5. See Curry, 26 DOE at 80,853 n.1 (1997).