Case No. VFA-0375, 27 DOE ¶ 80,126

April 14, 1998

DECISION AND ORDER

OF THE DEPARTMENT OF ENERGY

Appeal

Name of Petitioner: FAS Engineering, Inc.

Date of Filing: March 3, 1998

Case Number: VFA-0375

On March 3, 1998, FAS Engineering Incorporated (FAS) filed an Appeal from a determination issued to it on January 5, 1998 by the Golden Field Office (Golden) of the Department of Energy (DOE). That determination concerned a request for information that FAS submitted pursuant to the Freedom of Information Act (FOIA), 5 U.S.C. § 552, as implemented by the DOE in 10 C.F.R. Part 1004. If the present Appeal were granted, Golden would be ordered to release the requested information.

The FOIA requires that documents held by federal agencies generally 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); 10 C.F.R. § 1004.10(b). The DOE regulations further provide that a document exempt from mandatory 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

On December 1, 1997, FAS filed a FOIA request seeking copies of reviews prepared by members of the Geothermal Power Organization (GPO). These reviews discussed proposals for funding to be considered by the DOE’s Geothermal Program. See Appeal Letter at 1. GPO is a non-profit industry organization which was fostered by the DOE in 1995 and whose purposes and objectives include providing the DOE with informed comments on industry-driven research and state-of-the-art geothermal energy technology. See Record of Telephone Conversation between Ray Lasala, Program Manager, Geothermal Energy Program and Kimberly Jenkins-Chapman, Staff Attorney, OHA. Pursuant to a Memorandum of Understanding (MOU) between GPO and Golden, GPO agreed that it would, inter alia, review proposals for industry projects related to geothermal energy and provide its comments and recommendations to the DOE for consideration.

On January 5, 1998, Golden issued a determination which identified documents responsive to FAS’ request. Specifically, Golden identified several reviews that had been prepared by members of GPO and provided to Golden under the terms of the MOU. Golden stated that these documents were exempt from mandatory disclosure pursuant to Exemption 5 of the FOIA. Further, in its

determination, Golden stated that the requested information is both “predecisional and deliberative” and falls clearly within the deliberative process privilege of Exemption 5. See Determination Letter at 1.

On March 3, 1998, FAS filed the present Appeal with the Office of Hearings and Appeals (OHA). In its Appeal, FAS challenges Golden’s January 5, 1998 determination and asserts that there are “segregable portions [of the requested documents] which do not fall within the FOIA exemptions [sic] and which must be released.” In addition, FAS contends that the requested records are not properly withholdable under Exemption 5. See Appeal Letter at 1. For these reasons, FAS requests that the OHA direct Golden to release the requested information.

II. Analysis

Exemption 5 of the FOIA exempts from mandatory disclosure documents which are "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); 10 C.F.R. § 1004.10(b)(5). The Supreme Court has held that this provision exempts "those documents, and only those documents, normally privileged in the civil discovery context." NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 149 (1975) (Sears). The courts have identified three traditional privileges that fall under this definition of exclusion: the attorney-client privilege, the attorney work-product privilege, and the executive "deliberative process" or "predecisional" privilege. Coastal States Gas Corporation v. Department of Energy, 617 F.2d 854, 862 (D.C. Cir. 1980) (Coastal States). In withholding the requested reviews of geothermal energy proposals from FAS, Golden relied upon the "deliberative process" privilege of Exemption 5.

The "deliberative process" privilege of Exemption 5 permits the government to withhold documents that reflect advisory opinions, recommendations, and deliberations comprising part of the process by which government decisions and policies are formulated. Sears, 421 U.S. at 150. It is intended to promote frank and independent discussion among those responsible for making governmental decisions. EPA v. Mink, 410 U.S. 73, 87 (1973) (quoting Kaiser Aluminum & Chem. Corp. v. United States, 157 F. Supp. 939 (Cl. Ct. 1958)) (Mink). The ultimate purpose of the exemption is to protect the quality of agency decisions. Sears, 421 U.S. at 151. In order to be shielded by Exemption 5, a document must be both predecisional, i.e. generated before the adoption of agency policy, and deliberative, i.e. reflecting the give-and-take of the consultative process. Coastal States, 617 F.2d at 866. The exemption thus covers documents that reflect, among other things, the personal opinion of the reviewers rather than the final policy of the agency. Id.

After reviewing the requested documents at issue, we have concluded that the determination made by Golden in applying Exemption 5 was correct and consistent with the principles outlined above. Although the comments and recommendations contained in the reviews were prepared by non- governmental reviewers, they were submitted to DOE at its request and used only for internal DOE purposes. The fact that these reviews were prepared by a non-governmental entity does not alter the application of Exemption 5. It is well established that documents in an agency’s possession which are prepared by persons outside the government may still qualify as “inter-agency or intra-agency records.” Agencies, in the exercise of their functions, commonly have a special need for the opinions and recommendations of outsiders such as consultants. See CNA Fin. Corp. v. Donovan, 830 F.2d 1132, 1161 (D.C. Cir. 1987) (recognizing the importance of outside consultants in deliberative process privilege context). Both the federal courts and this Office have recognized that where a private entity prepared documents for the government pursuant to a contract or agreement, that party is operating as an agent of the government. See Wu v. National Endowment for the Humanities, 460 F.2d 1030, 1032 (5th Cir. 1972) (recommendations of volunteer consultants protected under Exemption 5). See also Environmental Policy Institute, 16 DOE ¶ 80,113 at 80,531 (1987); Toledo Coalition for Safe Energy, 18 DOE ¶ 80,109 at 80,528 (1988) (recommendations and opinions of DOE personnel and outside consultants fall within the scope of Exemption 5). Thus, for purposes of Exemption 5, the documents outside consultants produce and submit to DOE are treated as if they had been prepared by DOE employees. See Coalition for Safe Power, 16 DOE ¶ 80,134 at 80,598 (1987). Based on the foregoing, the information requested in this case properly falls within the definition of "intra-agency memoranda."

In addition, the comments and recommendations contained in the reviews are clearly predecisional and deliberative. They were created before the DOE adopted a final position on the geothermal proposals and consist of personal opinions which reflect the consultative process. Furthermore, we note that the release of these reviews could inhibit consultants from expressing their candid views if they believed that those views could become public knowledge. As such, the documents at issue are precisely the sort of documents which exemplify the deliberative and "group thinking" processes Exemption 5 is designed to protect. Sears, 421 U.S. at 153 (quoting Davis, The Information Act: A Preliminary Analysis, 34 U. Chi. L. Rev. 761, 797 (1967)). Accordingly, we hold that the reviews meet all the requirements for withholding material under the Exemption 5 deliberative process privilege.

However, both the FOIA and the implementing DOE regulations require that non-exempt material which may be reasonably segregated from withheld material be released to a requester. 5 U.S.C. § 552(b); 10 C.F.R. § 1004.10(c). See Environmental Protection Agency v. Mink, 410 U.S. 73, 89 (1972); Boulder Scientific Company, 19 DOE ¶ 80,126 at 80,577 n.3 (1989). Exemption 5 only covers the subjective, deliberative portion of the document. Mink, 410 U.S. at 87-91. Factual information contained in the protected document must be disclosed unless the factual material is "inextricably intertwined" with the exempt material. Soucie v. David, 448 F.2d 1067, 1077 (D.C. Cir. 1971). There is no indication in Golden’s determination letter that it considered this principle before withholding the reviews in full. Furthermore, after reviewing the documents ourselves, it appears that there may be some factual material which is non-exempt and reasonably segregable. Thus, we shall remand this case to Golden with instructions to review the requested documents and to release any reasonably segregable factual material or to issue a new determination explaining why this material should not be released.

III. 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. In this case, no public interest would be served by release of the comments and recommendations contained in the reviews of the geothermal energy proposals, which consist solely of the preliminary views and recommendations provided to DOE employees in the consultative process. The release of this deliberative material could have a chilling effect upon the agency. The ability and willingness of persons consulted by DOE employees to make honest and open recommendations concerning similar matters in the future could well be compromised. If consultants were inhibited in providing information and recommendations, the agency would be deprived of the benefit of their open and candid opinions. This would stifle the free exchange of ideas and opinions which is essential to the sound functioning of DOE programs. Fulbright & Jaworski, 15 DOE ¶ 80,122 at 80,560 (1987). Consequently, we conclude that release of the withheld material protected under Exemption 5 would result in foreseeable harm to the interests that are protected by the deliberative process privilege. See Memorandum from Janet Reno, Attorney General, to Heads of Departments and Agencies (October 4, 1993) (stating that the Department of Justice will defend the assertion of a FOIA exemption only in those cases where the agency articulates a reasonably foreseeable harm to an interest protected by that exemption).

IV. Conclusion

For the reasons stated above, the OHA finds that Golden properly applied the threshold requirements of Exemption 5 to the reviews of the geothermal proposals, and that there is no public interest in the release of any portion of the proposals that reflect the preliminary views and recommendations of their consultants. However, we are remanding this matter to Golden to issue a new determination, either releasing reasonably segregable factual material or explaining the reasons for withholding any factual material contained in the reviews.

It Is Therefore Ordered That:

(1) The Appeal filed by FAS Engineering Incorporated on March 3, 1998, Case Number VFA-0375, is hereby granted as specified in Paragraph (2) below, and is denied in all other respects.

(2) This matter is hereby remanded to the Golden Field Office, which should issue a new determination in accordance with the instructions set forth above.

(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: April 14, 1998