Case No. VFA-0382, 27 DOE ¶ 80,121

March 30, 1998

DECISION AND ORDER

OF THE DEPARTMENT OF ENERGY

Appeal

Name of Petitioner: Eugene Maples

Date of Filing: March 2, 1998

Case Number: VFA-0382

On March 2, 1998, Eugene Maples completed the filing of an Appeal from determinations the Office of the Inspector General (OIG) and the Office of General Counsel (OGC) of the Department of Energy (DOE) issued on January 6 and 20, 1998, respectively. (1) The OIG determination, while releasing several responsive documents, also withheld information in a document responsive to a Request for Information (Request) which Mr. Maples 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. The OGC determination provided several responsive documents to Mr. Maples pursuant to his FOIA Request. This Appeal, if granted, would require the DOE to release the information OIG withheld as well as order OIG and OGC to conduct additional searches for responsive documents.

The FOIA requires that agency records that are held by a covered branch of the federal government, and that have not been made public in an authorized manner, generally be released to the public upon request. 5 U.S.C. § 552(a)(3). The FOIA also lists nine exemptions that set forth the types of information that may be withheld at the discretion of the agency. 5 U.S.C. § 552(b)(1)-(b)(9); 10 C.F.R. § 1004.10(b)(1)-(b)(9). The DOE regulations further provide that documents exempt from mandatory disclosure will nonetheless be released to the public if the DOE determines that disclosure is not contrary to federal law and is in the public interest. 10 C.F.R. § 1004.1.

BACKGROUND

In his March 4, 1997 FOIA Request to DOE Headquarters, Mr. Maples requested copies of all correspondence relating to the administrative recoupment of Petroleum Violation Escrow (PVE) funds, between the following parties:

(1) the DOE and the Governor's Office or Attorney General's Office of South Carolina;

(2) the DOE and the DOE's Atlanta Support Office as well as correspondence to Washington, D.C., regarding any PVE funds; and

(3) the DOE, the DOE's Office of General Counsel, the Department of Justice and the State of South Carolina;

March 4, 1997 Request Letter from Eugene Maples to GayLa D. Sessoms, Director, Freedom of Information and Privacy Act Division, DOE Headquarters (Request Letter), at 1. Mr. Maples also requested that the DOE provide copies of all correspondence "assuring that any [PVE] funds ordered to be recovered are in fact being recovered as directed by DOE." Id. at 2. (2)

The Freedom of Information and Privacy Act Division referred Mr. Maples' Request to OIG and OGC. Responding to Mr. Maples' Request in a determination letter dated January 6, 1998, OIG released five documents to Mr. Maples. The OIG released all five documents in their entirety, except for a memorandum dated March 31, 1995, in which the OIG withheld three names in the attachment block of the memorandum. (3) OIG stated that it withheld the names pursuant to Exemptions 6 and 7(C) of the FOIA. In a determination letter dated January 20, 1998, OGC released a number of documents in their entirety to Mr. Maples. In his Appeal, Mr. Maples challenges the adequacy of the search that OIG and OGC used to locate responsive documents. Mr. Maples also challenges OIG's withholding of the names under Exemptions 6 and 7(C). (4)

ANALYSIS

A. EXEMPTIONS 6 and 7(C)

Exemptions 6 and 7(C) allow the withholding of information dealing with personal privacy. The former permits the non-disclosure of "personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of privacy." 5 U.S.C. § 552(b)(6); 10 C.F.R. § 1004.10(b)(6). Under Exemption 7(C), agencies may withhold "records or information compiled for law enforcement purposes, but only to the extent that the production of such law enforcement records or information . . . could reasonably be expected to constitute an unwarranted invasion of a personal privacy." 5 U.S.C. § 552(b)(7)(C); 10 C.F.R. § 1004.10(b)(7)(iii). Both of these exemptions require balancing the interest in personal privacy in the withheld information against the public interest in the same information. There are, however, two significant differences between Exemptions 6 and 7(C). Under Exemption 7 (C), the information must have been compiled for law enforcement purposes. In addition, because information may be withheld where there is merely a reasonable expectation of an "unwarranted invasion of a personal privacy," there is a lower threshold of privacy interest employed in Exemption 7(C) than in Exemption 6, where the balance calls for information to be withheld only if there is a "clearly unwarranted invasion of privacy" (emphasis added).

The document from which the names were withheld is a memorandum dated March 31, 1995, from the Chief Financial Officer of DOE to the DOE Inspector General with an attached Departmental Position on Inspector General Report ER-B-92-06 (March Memorandum). The March Memorandum states that "[a]s required by DOE Order 2320.2B . . . attached is the Departmental position on Inspector General Report ER-B-92-06 . . . ." Since the DOE created this memorandum to transmit the DOE's response to a completed OIG audit report pursuant to a DOE order, it would not appear that the OIG compiled the memorandum for law enforcement purposes. Consequently, we will remand this matter to OIG so that it may issue a new determination giving a more detailed explanation regarding whether it compiled the March Memorandum for "law enforcement purposes" as Exemption 7(C) requires.

On remand, OIG should also consider whether there exists any significant privacy interest in the withheld names to justify its application of Exemptions 6 and 7(C). OIG withheld all of the names in the attachment block of the March Memorandum except for the name of an OIG employee. As we have stated previously, a name by itself does not create a privacy interest that can be protected for the purposes of FOIA exemption analysis. The News Tribune, 25 DOE ¶ 80,181 at 80,700 (1996). Rather, the privacy interest exists when a name is linked with information that reveals something personal or private about an individual. Id. at 80,699. The names withheld appear to be names of DOE employees to whom a copy of the March Memorandum was sent. Federal employees carrying out their official duties have no privacy interest in having their names linked with another employee's work-product unless it reveals something personal or private about that individual or there are other special circumstances. See Maples. Consequently, since the withheld names appear to be listed in the attachment block as a part of their official duties, it does not appear that a privacy interest exists for the withheld names. On remand, OIG should determine, in light of the discussion above, whether Exemptions 6 and 7(C), or any other Exemption, are applicable to the withheld names and either release the withheld names or issue Mr. Maples another determination regarding any withheld names.

B. ADEQUACY OF THE SEARCH

In responding to a request for information filed under the FOIA, it is well established that an agency must "conduct a search reasonably calculated to uncover all relevant documents." Truitt v. Department of State, 897 F.2d 540, 542 (D.C. Cir. 1990). "The standard of reasonableness which we apply to agency search procedures does not require absolute exhaustion of the files; instead, it requires a search reasonably calculated to uncover the sought materials." Miller v. Department of State, 779 F.2d 1378, 1384-85 (8th Cir. 1985); accord Truitt, 897 F.2d at 542. We have not hesitated to remand a case where it is evident that the search conducted was in fact inadequate. See, e.g., Mary Towles Taylor, 26 DOE ¶ 80,114 (1996). As discussed below, we have reviewed the search conducted by OIG and OGC and find that each office conducted a reasonable search for documents responsive to Mr. Maples' Request.

1. OIG

We contacted officials at OIG to ascertain the extent of the search conducted for responsive documents. See Memorandum of meeting between Jacqueline Becker and Sanford Parnes, OIG Counsel, and Richard Cronin, OHA Staff Attorney (March 4, 1998); Memorandum of telephone conversation between Jacqueline Becker and Linda Duvall, OIG, and Richard Cronin (March 10, 1998). OIG counsel informed us that when OIG received Mr. Maples' Request, it undertook a computer database search to try to identify files containing responsive documents.(5) The computer database, which can index OIG's files, was searched using the terms "Maples," "PVE," "South Carolina," "Governor of South Carolina," "Stripper Well," "Exxon," "Warner Amendment" and "Escrow Funds." OIG's computer index search identified two investigatory files pertaining to the South Carolina projects, and OIG provided all responsive documents to Mr. Maples. OIG officials also informed us that, because the two investigatory files had been closed, they have no expectation that responsive documents exist outside of those files. Given the facts OIG presented to us, we believe the search it conducted was a reasonable search for responsive documents. OIG searched its files using a computer database and located the files most likely to possess responsive documents. Further, OIG officials had no reason to believe that other responsive documents would exist in locations other than the identified investigatory files. OIG provided all responsive documents it located to Mr. Maples. Consequently, we believe that OIG conducted an adequate search for responsive documents.

Mr. Maples' argument to the contrary is unavailing. With regard to the OIG search, Mr. Maples asserts that while he has previously identified 22 State of South Carolina projects as being improperly funded with PVE funds, information exists stating that only six of the projects had either been terminated or were the subject of remedial action. Mr. Maples argues that there should exist additional information regarding recoupment of monies from the other 16 projects he previously identified. Mr. Maples also asserts that over 200 State of South Carolina projects may have been improperly funded in the same manner as the six projects as to which remedial action was taken. Mr. Maples argues that the OIG released no documents to him regarding recoupment of monies regarding any of those projects.

To investigate Mr. Maples' claim, we contacted officials at OIG. OIG informed us that it has no information or knowledge regarding recoupment of PVE funds other than with respect to the six projects referenced in Mr. Maples' Appeal. Additionally, OIG informed us that, because of the nature of the office, OIG officials would be aware of any effort to obtain recoupment of PVE funds. See Memorandum of telephone conversation between Jacqueline Becker and Richard Cronin (March 12, 1998). Thus, notwithstanding Mr. Maples' allegations regarding the remaining 16 projects, the OIG had no reason to believe that correspondence exists regarding the recoupment of PVE funds for those projects or the 200 other State of South Carolina projects to which he referred. Given this information, we have no reason to believe that OIG possesses further responsive documents.

2. OGC

We contacted officials at OGC to inquire about their search for responsive documents. See Memorandum of telephone conversation between Harold Goldsmith, OGC, and Richard Cronin (March 3, 1995); Memorandum of telephone conversation between Suzanne Odom, Special Assistant, Office of the General Counsel, and Richard Cronin (March 5, 1998). OGC stated that upon receipt of Mr. Maples' Request, it conducted a computer database search using the terms "South Carolina," "SC," "S. Car.," and "So. Car." (6) OGC examined the computer generated lists of files using these terms to determine if any of the files would have responsive documents. OGC discovered two potentially responsive documents and provided these documents to Mr. Maples. OGC contacted various individuals whose names Mr. Maples suggested to inquire if they had any further knowledge regarding the existence of responsive documents. OGC also contacted individuals it believed would most likely have knowledge regarding the existence of responsive documents. The OGC contacted the Department of Justice, the Assistant General Counsel for Federal Litigation, the Assistant General Counsel for the Office of Energy Efficiency and OHA to try to uncover information regarding the responsive documents. A number of the DOE officials informed OGC that if responsive documents exist they would be located at the Office of Energy Efficiency and Renewable Energy (EE). OGC officials then asked officials at EE to conduct a search. EE officials searched their files and determined that it had previously provided all of its responsive documents to Mr. Maples pursuant to an earlier FOIA request. (7) OGC also conducted a search of the correspondence of the General Counsel. Because the official from the DOE General Counsel's office was familiar with the inquiry regarding South Carolina's projects resulting from Mr. Maples' disclosures, she searched a computer database indexing the General Counsel's correspondence from 1990 to the present using the term "Maples." The official believed this term would most likely locate all responsive documents. Upon obtaining responsive documents using this search, she then searched the computer database using the name of the Department of Justice attorney referenced in the responsive documents. OGC then provided to Mr. Maples all responsive documents located in this manner.

Given this factual background, we believe that the search OGC conducted was reasonably calculated to discover responsive documents. OGC searched its files using a computer database to try to identify responsive documents. OGC then questioned the individuals at DOE most likely to have knowledge of responsive documents as well as individuals suggested by Mr. Maples. Upon discovering that EE might possess responsive documents, OGC asked EE to conduct a search. OGC also conducted a computer database search of the correspondence of the General Counsel's office. Consequently, we find that OGC's search for responsive documents was adequate.

Mr. Maples' argument that OGC did not conduct an adequate search is unpersuasive. As evidence that additional documents must exist within OGC, Mr. Maples refers to an undated and unsigned memorandum provided to him pursuant to his FOIA Request (Nordhaus Memorandum) indicating that then DOE General Counsel Robert Nordhaus recommended that officials at EE obtain "assurances from South Carolina that the Florence County project was selected using the appropriate State financial assistance regulations, including competitive requirements . . . ." Request Letter at 6 (citing Nordhaus Memorandum). Mr. Maples notes that none of the documents released to him contains assurances from the State of South Carolina regarding the Florence County project. Additionally, Mr. Maples also points out that the Nordhaus Memorandum also recommends "that the State of South Carolina provide the DOE with concrete written assurance that it will follow the State's financial assistance rules and regulations when managing and administering the State's Office of Energy Programs." Mr. Maples asserts that he did not receive any documents regarding such an assurance. In our inquiry of this appeal, we contacted an official with the DOE General Counsel's office who informed us that the Nordhaus Memorandum was an unsigned draft version of the memorandum. To the best of her knowledge, the DOE General Counsel never issued the Nordhaus Memorandum. See Memorandum of telephone conversation between Suzanne Odom and Richard Cronin (March 5, 1998). Consequently, we believe that the existence of the Nordhaus Memorandum does not provide a reliable indication that other responsive documents may exist.

CONCLUSION

We will remand this Appeal to OIG so that it may release the withheld names on the March Memorandum or provide Mr. Maples another determination providing a more detailed justification for withholding the names. With regard to the search for responsive documents OIG and OGC conducted, we find that each office performed an adequate search. Consequently, Mr. Maples' Appeal will be granted in part.

It Is Therefore Ordered That:

(1) The Freedom of Information Act Appeal filed by Eugene Maples, OHA Case No. VFA-0382, is hereby granted in part as set forth in Paragraph (2) below, and denied in all other respects.

(2) This matter is hereby remanded to the Office of the Inspector General for further consideration in accordance with the instructions contained in the foregoing 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 situated or in the District of Columbia.

George B. Breznay

Director

Office of Hearings and Appeals

Date: March 30, 1998

(1)Mr. Maples' initial submission did not contain the required copies of the determination letters from which he was appealing. See 10 C.F.R. § 1004.8(b). We deemed Mr. Maples' appeal filed upon our receipt of the determination letters on March 2, 1998.

(2)PVE funds are monies the federal government collected from oil companies for violations of petroleum pricing regulations from 1973 to 1981. Funds not needed for direct restitution to injured persons are used to provide indirect restitution to overcharged customers. For this purpose, each state uses PVE funds to implement energy-related programs that benefit the citizens of that state. In 1993, Mr. Maples provided information to the OIG regarding the State of South Carolina's alleged misuse of PVE funds. See Eugene Maples, 26 DOE ¶ 80,159 (1997) (Maples).

(3)OIG identified one other document, originating with OGC, responsive to Mr. Maples' Request. OIG referred that document to OGC so that it could issue a determination regarding the document. In its January 20, 1998 determination letter, OGC released this document to Mr. Maples.

(4)Mr. Maples' submission reiterates his allegation that the State of South Carolina improperly managed PVE funds and requests that OHA direct OIG to make a more thorough investigation and audit of the State of South Carolina's wrongful use of federal funds. OHA does not have authority to order OIG to conduct an investigation. However, assuming arguendo that Mr. Maples has standing to request that OHA review the State of South Carolina's use of PVE funds and that such a review should be conducted, we examined the OIG investigatory files to determine if any further action should be contemplated regarding South Carolina's use of PVE funds. Cf. Denver Support Office, U.S. Dep't of Energy, A Report on State Expenditures of Oil Overcharges (1990) (OHA and Denver Support Office review of oil overcharge fund expenditures by 10 States prior to the enactment of Petroleum Overcharge Distribution and Restitution Act of 1986). These files indicate that there were some irregularities in the use of PVE funds by the State of South Carolina. Action was taken by DOE with regard to certain of these irregularities. Nevertheless, based on our review of the information contained in the files, we are not convinced that sufficient evidence exists for us to consider further action beyond that which DOE has already taken.

(5)At our request, OIG conducted another computer database search for responsive documents. OIG could find no additional responsive documents. See Memorandum of telephone conversation between Jacqueline Becker and Linda Duvall, OIG, and Richard Cronin (March 10, 1998).

(6)The computer database used in the search contains listings for older Energy Regulatory Administration documents.

(7)At our request, EE conducted another search for responsive documents. EE again confirmed that it has already provided all responsive documents in its possession to Mr. Maples in earlier FOIA requests. See Memoranda of telephone conversations between Faith Lambert, EE, and Richard Cronin (March 5 and 9, 1998).