Case No. VFA-0376, 27 DOE ¶ 80,122

April 2, 1998

DECISION AND ORDER

OF THE DEPARTMENT OF ENERGY

Appeal

Name of Petitioner: David R. Berg

Date of Filing: February 10, 1998

Case Number: VFA-0376

On February 10, 1998, David R. Berg filed an Appeal from a determination issued to him by the Deputy Assistant Secretary for Human Resources (hereinafter referred to as “HR”). This determination was issued in response to a request for information submitted under the Freedom of Information Act (FOIA), 5 U.S.C § 552, and the Privacy Act, 5 U.S.C. § 552a, as implemented by the DOE in 10 C.F.R. Parts 1004 and 1008, respectively.

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 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 is in the public interest. 10 C.F.R. § 1004.1.

The Privacy Act permits individuals to gain access to their records or to information pertaining to them that is contained in systems of records maintained by the agencies. 5 U.S.C. § 552a(d)(1).

I. Background

On February 26, 1997, Mr. Berg requested, under the provisions of the FOIA and the Privacy Act, that he be provided with all documents relating to a conversation between himself and another individual. Mr. Berg specifically requested access to four documents written by employees of the Waste Policy Institute, a DOE contractor, and the DOE.

HR issued a determination on May 28, 1997, in which it stated that it had located a number of documents responsive to Mr. Berg's request in the files denominated “DOE-2 DOE Personnel: Supervisor-Maintained Personnel Records,” a system of records that is subject to the Privacy Act. However, HR withheld these documents

in their entirety, citing subsection (d)(5) of the Privacy Act, 5 U.S.C. § 552a(d)(5), and Exemptions 5, 6 and 7 of the FOIA, 5 U.S.C. § 552(b)(5), (b)(6) and (b)(7).

On July 16, 1997, Mr. Berg appealed HR’s May 28, 1997 determination. In a Decision and Order dated August 14, 1997, the OHA found that HR had not adequately explained its reasons for withholding the documents under the FOIA and the Privacy Act and had not segregated and released non-exempt material. We therefore remanded this matter to HR with instructions to either release the documents in their entirety or issue a new determination letter to Mr. Berg. See David R. Berg, 26 DOE ¶ 80,210 (1997) (Berg I).

Subsequent to this Decision and Order, HR issued a new determination to Mr. Berg on January 7, 1998. In this determination, HR released two documents in redacted form, and withheld other documents in their entirety. The withheld material pertains to allegations of improper or threatening workplace behavior by Mr. Berg. In support of its actions, HR cited subsection (d)(5) of the Privacy Act and Exemptions 6, 7(C) and 7(F) of the FOIA. Subsection (d)(5) of the Privacy Act states that the Act is not applicable to information compiled in reasonable anticipation of a civil action or proceeding. Exemption 6 of the FOIA protects from mandatory disclosure personnel, medical and similar files that, if disclosed, would result in a clearly unwarranted invasion of personal privacy. FOIA Exemptions 7(C) and 7(F) encompass information compiled for law enforcement purposes that, if released, could reasonably be expected to result in an unwarranted invasion of personal privacy or would endanger the physical safety any individual, respectively.

On February 10, 1998, Mr. Berg filed the current Appeal. (1) In his submission, he claims that HR’s determination on remand “ignor(es)” our August 14 Decision and Order by ”simply refusing to provide the identified documents.” Brief at 2. Mr. Berg further contends that subsection (d)(5) of the Privacy Act is inapplicable because it refers only to information compiled for a civil action or proceeding by an attorney or someone acting at an attorney’s behest. With regard to HR’s findings under the FOIA, Mr. Berg argues that the withheld material is not protected from mandatory disclosure pursuant to Exemption 6 because the individuals involved have no viable privacy interest in that material, and that Exemptions 7(C)and 7(F) are inapplicable because there is no law enforcement proceeding at issue in this case.

II. Analysis

A. HR’s Compliance with Berg I

As a preliminary matter, Mr. Berg contends that HR’s determination on remand does not address the deficiencies that we discussed in Berg I. We do not agree. In fact, we find that HR’s January 7, 1998 determination is in full compliance with our instructions in Berg I. As previously stated, we found HR’s earlier determination to be deficient because it “merely restated the languages of Exemptions 5, 6, and 7 as well as subsection (d)(5) of the Privacy Act, without adequately explaining” the manner in which HR applied those provisions in withholding the documents in question. Berg I. We further found that HR had made no apparent attempt to segregate and release non-exempt material. Id.

In contrast, the January 7 determination fully explains HR’s application of the relevant statutory provisions to the matter at hand. For example, in explaining its decision to withhold the requested material pursuant to subsection (d)(5) of the Privacy Act, HR stated that formal or informal proceedings to remedy complaints of individuals who consider themselves aggrieved by a coworker’s conduct are initiated by written complaints such as those sought by Mr. Berg. HR further found that individuals bringing such complaints, such as the authors of some of the documents requested by Mr. Berg, do so in reasonable anticipation that some type of proceeding to resolve the complaint will result. January 7 Determination Letter at 1-2. We find that HR has adequately explained its reasons for denying Mr. Berg’s request. Furthermore, we have examined the withheld material, and we conclude that HR has adequately segregated and released any non- exempt material to Mr. Berg. We therefore reject Mr. Berg’s claim that HR has failed to follow the guidelines that we set forth in Berg I.

B. The Privacy Act

Mr. Berg also argues that HR improperly withheld the responsive documents under subsection (d)(5) of the Privacy Act. That subsection states, in pertinent part, that “nothing in this section shall allow an individual access to any information compiled in reasonable anticipation of a civil action or proceeding.” 5 U.S.C. § 552a(d)(5).

Specifically, Mr. Berg contends that subsection (d)(5) is coextensive with the attorney work product privilege of Exemption 5 of the FOIA. Consequently, he argues, the subsection applies only to material compiled by an attorney or someone acting at the direction of an attorney. Since HR does not claim that the documents that it withheld were compiled by or under the direction of an attorney, Mr. Berg claims that subsection (d)(5) is not applicable. Moreover, he points out that the attorney work product privilege protects only those documents that would not normally or routinely be discoverable in civil proceedings. NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 154-155 (1975). Therefore, since the withheld documents would be discoverable in any disciplinary proceeding against him, he contends, those documents may not be withheld under subsection (d)(5). In support of his position, Mr. Berg cites Martin v. Office of Special Counsel, MSPB, 819 F.2d 1181 (D.C. Cir. 1987) (Martin). In that case, the court upheld the denial of Martin’s request under the FOI and Privacy Acts for access to certain documents that were prepared by a government attorney during the investigation of Martin’s claims of workplace harassment. In reaching this result, the court found the documents to be exempt from mandatory disclosure under Exemption 5 of the FOIA and subsection (d)(5) of the Privacy Act.

However, contrary to Mr. Berg’s assertions, the Martin court did not find subsection (d)(5) to be coextensive with the attorney work product privilege. Indeed, in discussing the “deliberative process” civil discovery privilege, the court said that “[u]nlike FOIA Exemption (b)(5), Exemption (d)(5) in no way incorporates civil discovery law...” Martin at 1187. Similarly, in Hernandez v. Alexander, 671 F.2d 402 (10th Cir. 1982), the court rejected a claim that subsection (d)(5) only exempts material that falls within the attorney work product privilege, stating that the exemption “is not limited to an attorney's work product, but extends to any records compiled by counsel or other persons in reasonable anticipation of a civil action or proceeding." Id. at 408 (citing Smietra v. Department of Treasury, 447 F. Supp. 221, 227-28 (D.D.C. 1978)). We therefore reject Mr. Berg’s claim that subsection (d)(5) of the Privacy Act applies only to material that may be withheld under the attorney work product privilege.

Documents, such as those HR has withheld, that detail allegations of workplace misconduct often lead to civil suits or administrative disciplinary proceedings. Based on the circumstances of this proceeding, we conclude that the withheld material was compiled in reasonable anticipation of a civil action or proceeding within the meaning of subsection (d)(5), and was therefore properly withheld under this provision. See Robert B. Freeman, 26 DOE ¶ 80,180 (1997) (information is compiled in anticipation of civil action or proceeding within meaning of (d)(5) when prospect of such a civil action or proceeding is primary reason for compilation of information).

C. The FOIA

A finding that the withheld documents are exempt under subsection (d)(5) of the Privacy Act does not end our inquiry. Unless the documents are also exempt from mandatory release under the FOIA, they must be released to Mr. Berg. Diane C. Larson, 26 DOE ¶ 80,112 (1996). As we previously stated, HR withheld the responsive documents pursuant to Exemptions 6, 7(C) and 7(F).

1. 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.

In his appeal, Mr. Berg contends that because the events that form the basis for the complaints against him occurred in the workplace, the complainants have no cognizable privacy interest in the withheld material. We do not agree. While it is true that the complainants have little or no privacy interests regarding their involvement in the workplace events underlying their allegations, we find that they retain a significant privacy interest in maintaining the confidentiality of their participation in actions against Mr. Berg’s interests. As an initial matter, the complaints against Mr. Berg were captioned “Administratively Confidential.” It is therefore evident that the complainants had a reasonable expectation that their communications would not be made public. Moreover, individuals who file complaints about co-workers could be subjected to harassment, retaliation or emotional distress if their identities were made public. See, e.g., Burlin McKinney, 25 DOE ¶ 80,149 (1995) (McKinney); Valley Times, 23 DOE ¶ 80,154 at 80,632 (1993); James L. Schwab, 21 DOE ¶ 80,117 (1991).

In contrast, we find that the public interest in the release of this material is negligible, because such a release would not contribute in any meaningful way to the public’s understanding of the manner in which its government operates. We therefore conclude that release of the documents would constitute a clearly unwarranted invasion of personal privacy, and that HR properly withheld them pursuant to Exemption 6.

2. Exemptions 7(C) and 7(F)

HR also cited Exemptions 7(C) and 7(F) in withholding the responsive documents. 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 F.B.I. v. Abramson, 456 U.S. 615, 622 (1982); William Payne, 26 DOE ¶ 80,144 (1996). 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) (remand 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); McKinney. Applying these principles to the matter at hand, we find no indication in the record that HR 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 such a statutory foundation, we cannot conclude that the withheld documents were compiled for law enforcement purposes within the meaning of Exemption 7.

III. Conclusion

For the reasons set forth above, we find that HR properly applied subsection (d)(5) of the Privacy Act and Exemption 6 of the FOIA. We further conclude that HR segregated and released all non-exempt material to Mr. Berg. His appeal will therefore be denied.

It Is Therefore Ordered That:

(1) The Freedom of Information Act Appeal filed by David R. Berg on February 10, 1998 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:April 2, 1998

(1)*/ Mr. Berg also requested, and was granted, a 30-day extension of time to file a brief in support of his Appeal.