Case No. VFA-0372, 27 DOE ¶ 80,114

February 27, 1998

DECISION AND ORDER

OF THE DEPARTMENT OF ENERGY

Appeal

Name of Petitioner: Sandra M. Hart

Date of Filing: January 29, 1998

Case Number: VFA-0372

On January 29, 1998, Sandra M. Hart (Appellant) filed an Appeal from a final determination issued to her on January 13, 1998, by the Department of Energy’s (DOE) Idaho Operations Office (Idaho). In that determination, Idaho released several documents responsive to a request for information the Appellant filed under the Freedom of Information Act (FOIA), 5 U.S.C. § 552(b), as implemented by the DOE in 10 C.F.R. Part 1004. However, Idaho withheld portions of one document under FOIA Exemption 6. This Appeal, if granted, would require the DOE to release the withheld information.

I. BACKGROUND

The present Appeal concerns a determination letter issued to the Appellant on January 13, 1998. In that letter, Idaho released three documents to the Appellant in their entirety but withheld portions of a fourth document, which was an Equal Employment and Opportunity (EEO) complaint filed with the DOE’s Office of Civil Rights. Idaho withheld three portions of that complaint citing Exemption 6: (1) two portions of the EEO complaint in which the complaining individual explained why she believed that she was unfairly discriminated against, and (2) a witness statement supporting one of the complaining individual’s allegations.

On January 29, 1998, the Appellant filed the present Appeal challenging Idaho’s withholdings and contending that (1) she is entitled to the withheld information because it concerns her, (2) the DOE has released information concerning her to third parties, and she should should be treated in the same way as these third parties, and (3) the DOE has failed to segregate releaseable information contained in the withheld portions of the document.

II. ANALYSIS

As an initial matter, it is important to note that a FOIA requester's rights to access are neither increased nor decreased because she may have a greater interest in the records than a member of the general public has. Thus, although the Appellant has requested material concerning herself, her rights under the FOIA are no greater than those of any other requester. NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 143 n.10 (1975) (NLRB). (1)

The FOIA generally requires that documents held by federal agencies be released to the public upon request. The FOIA, however, lists nine exemptions that set forth the types of information which may be withheld at the discretion of an agency. 5 U.S.C. § 552(b). Only Exemptions 6 and 7 are at issue in the present case. (2)

Exemptions 6 and 7(C)

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).

Exemption 7(C) allows an agency to withhold "records or information compiled for law enforcement purposes, if release of such law enforcement records or information . . . 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). The threshold test for withholding information under Exemption 7(C) is whether such information is compiled as part of or in connection with an agency law enforcement proceeding. FBI v. Abramson, 456 U.S. 615, 622 (1982). The scope of Exemption 7 encompasses enforcement of both civil and criminal statutes. Rural Housing Alliance v. Department of Agriculture, 498 F.2d 73, 81 & n.46 (D.C. Cir. 1974); Williams v. IRS, 479 F.2d 317, 318 (3d Cir. 1973), cert. denied sub nom., Donolon v. IRS, 414 U.S. 1024 (1973). It is well settled that both the EEO counseling and investigatory stages are law enforcement proceedings. Thus, records of an EEO investigation are considered records compiled for law enforcement purposes within the context of the FOIA. Raytheon Company, 25 DOE ¶ 80,156 (1996).

In order to determine whether a record may be withheld under either Exemption 6 or 7(C), an agency must undertake a three-step analysis. First, the agency must determine whether a significant privacy interest would be compromised by the disclosure of the record. If no privacy interest is identified, the record may not be withheld pursuant to either of the exemptions. Ripskis v. Department of Hous. and Urban Dev., 746 F.2d 1, 3 (D.C. Cir. 1984) (Ripskis). 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 Reporters Committee for Freedom of the Press v. Department of Justice, 109 S. Ct. 1468, 1481 (1989) (Reporters Committee). Finally, the agency must weigh the privacy interests it has identified against the public interest in order to determine whether release of the record either (1) would constitute a clearly unwarranted invasion of personal privacy (the Exemption 6 standard), or (2) could reasonably be expected to constitute an unwarranted invasion of personal privacy (the Exemption 7(C) standard). See generally Ripskis, 746 F.2d at 3.

(1) Privacy Interest

Witnesses usually provide statements in law enforcement proceedings with an expectation of confidentiality. If this expectation of confidentiality were breached by release of the statements, a significant invasion of the privacy of the individuals providing such statements would occur. The complainant’s explanation of why she believed that she had been discriminated against was provided with a similar expectation of privacy. The complainant’s statements were made as part of a DOE EEO investigation. Under the DOE’s EEO Management Directive, the complainant’s statements to investigators are not made available to third parties, including those persons accused of allegedly discriminatory acts. EEO Management Directive at 5-12. Therefore, statements made by EEO complainants at the investigatory stage are, in essence, witness statements.

Moreover, because of the obvious possibility of harassment, intimidation, or other personal intrusions, the courts have consistently recognized significant privacy interests in the identities of individuals providing information to government investigators. Safecard Services, Inc. v. S.E.C., 926 F.2d 1197 (D.C. Cir. 1991) (Safecard); KTVY-TV v. United States, 919 F.2d 1465, 1469 (10th Cir. 1990) (KTVY-TV) (finding that withholding identity necessary to avoid harassment of individual); Cucarro v. Secretary of Labor, 770 F.2d 355, 359 (3d Cir. 1985) (Cucarro); James L. Schwab, 21 DOE ¶ 80,117 at 80,556 (1991); Lloyd R. Makey, 20 DOE ¶ 80,524 (1990). Accordingly, we find that the individuals whose statements are being withheld in this case have significant privacy interests in maintaining their confidentiality.

(2) Public Interest in Disclosure

In Reporters Committee, the Supreme Court greatly narrowed the scope of the public interest in the context of the FOIA. Justice Stevens, writing for the Court, distinguished between the general benefits to the public that may result from the release of information, and those benefits that Congress sought to provide the public when it enacted the FOIA. He found that in FOIA contexts, the public interest in disclosure must be measured in terms of its relation to the FOIA's core purpose. Reporters Committee, 1009 S. Ct. at 1481-84. The Court identified the core purpose of the FOIA as "public understanding of the operations or activities of the Government." Id. at 1483. Therefore, the Court held, only information that contributes significantly to the public's understanding of the operations or activities of the Government is within "the ambit of the public interest which the FOIA was enacted to serve." Id. The Court accordingly found that unless the public would learn something directly about the workings of government from the release of a document, its disclosure is not "affected with the public interest." Id.; see also National Ass'n of Retired Employees v. Horner, 879 F.2d 873, 879 (D.C. Cir. 1989), cert. denied, 494 U.S. 1078 (1990).

It is well settled that disclosure of the identity of individuals who have provided information to government investigators is not "affected with the public interest." See, e.g., Safecard, 926 F.2d at 1205; KTVY-TV, 919 F.2d at 1469. In the absence of a compelling reason for deviating from this body of precedent, we reach that conclusion in the present case.

(3) The Balancing Test

Because release of the withheld material could reasonably be expected to subject their authors to harassment or intimidation or other personal intrusions, we find that significant privacy interests exist for these individuals. After weighing the significant privacy interests present in this case against an insubstantial or non-existent public interest, we find that release of the withheld documents would constitute a clearly unwarranted invasion of personal privacy. Our findings are consistent with those reached by several appellate courts when presented with a similar set of facts. These courts have found that the privacy interests of individuals supplying information to government investigators clearly outweigh the negligible public interest in disclosure. See, e.g., Safecard; KTVY-TV, 919 F.2d at 1469 (finding withholding necessary to avoid harassment of individual); Cucarro, 770 F.2d at 359. Accordingly, we find that the withheld information was properly withheld under Exemption 6 and can be properly withheld under Exemption 7(C) as well.

Segregability

The FOIA, as implemented by 10 C.F.R. § 1004.10(c), 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). The only exceptions to the requirement of segregation are where exempt and non-exempt material are so "inextricably intertwined" that release of the non-exempt material would compromise the exempt material, Lead Industries Assoc., Inc. v. Occupational Safety and Health Admin., 610 F.2d 70, 85 (2d Cir. 1979), or where non-exempt material is so small and interspersed with exempt material that it would pose "an inordinate burden" to segregate it. Id.

As with any exemption, any reasonably segregable portions of the record must be provided to the requester. Nevertheless, for some documents subject to Exemptions 6 and 7(C), the deletion of personal identifying information is inadequate to protect personal privacy. This may be the case if the requested documents concern a small group of individuals who are known to each other and easily identifiable from information in the documents. For example, the deletion of names and other identifying data concerning a small group of coworkers would be inadequate to protect them from embarrassment or reprisals if the requester could still possibly identify the individuals. Alirez v. NLRB, 676 F.2d 423, 428 (10th Cir. 1982). The records at issue in the present case are a perfect example of such a situation. If we were to release this information, the Appellant would have no difficulty in determining who provided the DOE with the withheld information, resulting in an invasion of significant privacy interests.

Exemption 7(A)

Although Idaho did not withhold the witness statements under Exemption 7(A), we have, upon our de novo review, determined that the exemption applies here. To warrant protection under Exemption 7(A), it must be shown that the release of the records could reasonably be expected to interfere with enforcement proceedings. The interference need not be established on a document-by-document basis, but can be shown generically as to the types of documents involved. NLRB v. Robbins Tire & Rubber Co., 437 U.S. 214, 236 (1978). Release of the withheld information at issue in the present case could clearly interfere with the ongoing EEO investigation by affecting the testimony of witnesses, subjecting witnesses to potential reprisals, and deterring other witnesses from providing information. See Dow Jones & Co. v. Department of Justice, 880 F. Supp. 145, 150 (S.D.N.Y. 1995); Alyeska Pipeline Service Co. v. EPA, 856 F.2d 309, 311 (D.C. Cir. 1988). It should therefore be withheld under Exemption 7(A) as well.

Finally, the Appellant contends that Idaho has inconsistently applied the FOIA to her detriment. Specifically, she suggests that other individuals involved in the EEO complaint have been provided with information that she has supplied to the DOE, while she is being denied access to the information that they have supplied to the DOE. While there is no evidence in the record indicating that this assertion is true, even if it is true it is irrelevant to the present Appeal. OHA's jurisdiction over the present Appeal is limited to determining whether or not the information she requested can be withheld under the FOIA.

III. CONCLUSION

While we are strongly committed to keeping the public fully informed about DOE actions, we are also mindful of the need to preserve the privacy rights of individuals. We are satisfied that the agency is providing as much information here as possible while safeguarding individual privacy rights. For the reasons set forth above, we are denying the Freedom of Information Act appeal that Sandra M. Hart filed on January 29, 1998.

It is Therefore Ordered That:

(1) The Freedom of Information Act Appeal filed by Sandra M. Hart on January 29, 1998 (Case Number VFA-0372) 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 situated, or in the District of Columbia.

George B. Breznay

Director

Office of Hearings and Appeals

Date: February 27, 1998

(1) There is one notable exception to this rule. An agency cannot invoke a FOIA exemption in order to protect a requester's own privacy interest against release to himself. Department of Justice v. Reporters Come. for Freedom of the Press, 489 U.S. 749, 771 (1989). None of the documents at issue in the instant case, however, was withheld to protect the Appellant’s privacy interest.

(2) Idaho did not withhold the documents under Exemption 7(C). However, we have determined, sua sponte, that this exemption is relevant here and should be applied.