Case No. VFA-0395, 27 DOE ¶ 80,128

April 15, 1998

DECISION AND ORDER

OF THE DEPARTMENT OF ENERGY

Appeal

Name of Petitioner:Nuclear Control Institute

Date of Filing:March 18, 1998

Case Number: VFA-0395

On March 18, 1998, The Nuclear Control Institute (the Appellant) filed an Appeal from two determinations issued to it by the Department of Energy’s (DOE) Oak Ridge Operations Office (Oak Ridge) and Oakland Operations Office (Oakland). These determinations were issued in response to requests for information that the Appellant submitted under the Freedom of Information Act (FOIA), 5 U.S.C. § 552, as implemented by the DOE in 10 C.F.R. Part 1004. The Appeal, if granted, would require that the withheld documents be released.

I. Background

This Appeal concerns two separate FOIA requests the Appellant originally filed with Oakland. The first request sought the minutes of three meetings among officials of DOE, Oak Ridge National Laboratories (ORNL) and contractors (the Minutes). Oakland referred this request to Oak Ridge. Oak Ridge issued a determination letter on November 14, 1997, withholding the Minutes in their entirety under the deliberative process privilege of Exemption 5. 5 U.S.C. § 552(b)(5).

The second request was for a document entitled “Plutonium Disposition Study--Implementation of Weapons Grade MOX Fuel in Existing Pressurized Water Reactors” (the Report). This request was filed with Oakland and Oakland issued the January 13, 1998 determination letter withholding the Report in its entirety under the deliberative process privilege.

On March 18, 1998, the present Appeal was submitted claiming that Oakland and Oak Ridge have improperly withheld the documents under the deliberative process privilege.(1) Specifically, the Appeal contends that the withheld documents: (1) are not intra- or inter-agency documents, (2) are not predecisional; (3) are not deliberative; and (4) contain segregable factual information that Oakland and Oak Ridge failed to release.

II. Analysis

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.

Exemption 5 exempts from mandatory disclosure documents that 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). Among the privileges that fall under this exclusion is the executive or deliberative process privilege. Coastal States Gas Corp. v. Department of Energy, 617 F.2d 854, 862 (D.C. Cir. 1980). In the present case, only the "deliberative process privilege" is at issue. The deliberative process privilege permits the government to withhold documents that reflect advisory opinions, recommendations, and deliberations comprising part of the process by which government formulates decisions and policies. Sears, 421 U.S. at 150. The purpose of the privilege is to protect the quality of agency decisions by promoting frank and independent discussion among those responsible for making governmental decisions. Sears, 421 U.S. at 151. See EPA v. Mink, 410 U.S. 73, 87 (1973) (quoting Kaiser Aluminum & Chem. Corp. v. United States, 157 F. Supp. 939, 946 (Ct. Cl. 1958)) (Mink).

In order for the deliberative process to shield a document, it 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 writer rather than the final policy of the agency. Id. Even then, however, the exemption only covers the subjective, deliberative portion of the document. Mink, 410 U.S. at 87-91. An agency must disclose factual information contained in the protected document unless the factual material is "inextricably intertwined" with the exempt material. Soucie v. David, 448 F.2d 1067, 1077 (D.C. Cir. 1971).

i. Whether the Withheld Materials are Inter- or Intra- Agency Documents

The Appellant claims that since the withheld documents were not created by agency employees, they are not inter- or intra-agency documents. It is well settled, however, that many documents generated outside of agencies are withholdable under the deliberative process privilege. In order to determine whether documents generated outside of agencies are part of the deliberative process, the courts have employed a functional test. Under this functional approach, opinions and recommendations generated by outside consultants are considered part of the deliberative process if they were created pursuant to agency initiative in order to assist the agency in its decision making. See Formaldehyde Inst. v. HHS, 889 F.2d 1118, 1123-23 (D.C. Cir. 1989).

The Report is clearly part of DOE’s deliberative process. The Report was authored by DOE contractors hired by the agency to make recommendations concerning the agency’s future policies on the use of mixed oxide fuels (MOX) in commercial nuclear reactors. Similarly, the Minutes were prepared by a DOE contractor employee in order to memorialize discussions intended to aid the DOE in determining the feasibility of using MOX in commercial nuclear reactors. While recognizing that documents prepared by DOE contractors can qualify for protection under the deliberative process privilege, the Appellant urges that we not extend deliberative process protection when the originator of the information has a direct interest in the outcome of a policy being considered. Appeal at 3. We are not convinced that such a rule is necessary. If we find that release of any information would benefit the public interest we can always release that information under 10 C.F.R. § 1004.1. The public interest is better served if we maintain the flexibility to apply the privilege when necessary. Moreover, the cases cited in the Appeal in support of this contention are inapposite. (2) The cited cases hold that documents submitted by adverse outside parties in the course of settlement negotiations with an agency are not part of the agency’s deliberative process. (3) However, those cases are clearly distinguishable from the present case, where the originators of the documents were not adversaries, but were paid by the agency to provide it with advice and consultation, and were therefore participating at its request in the agency’s deliberative process. In contrast, parties engaged in settlement negotiations are not participating in the agency’s deliberative process. Instead, they are adversaries. Therefore, we reject the Appellant’s argument and find that each of the withheld documents are intra-agency documents.

ii. Whether the Withheld Materials are Predecisional

The Appeal next claims that the withheld documents are not predecisional since they were not “created antecedent to a specific agency decision to which [they] relate[].” Appeal at 5. However, it is well settled that the existence of the deliberative process privilege does not turn upon the ability of the agency to identify a specific decision in connection with which a memorandum is prepared. NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 151 n. 18 (1975) (Sears). “Agencies are, and properly should be, engaged in a continuing process of examining their policies; this process will generate memoranda containing recommendations which do not ripen into agency decisions . . . .” Id. Since neither the Minutes nor the Report contain final agency decisions and since they are merely recommendations for further consideration, we find that they are properly classified as predecisional in nature.

iii. Whether the Withheld Materials are Deliberative

The Appeal asserts that substantial portions of the Minutes and the Report are not deliberative since they consist of “calculational results and technical conclusions.” It is true that purely factual material is often not deliberative. See, e.g., Formaldehyde Institute v. Department of Health and Human Services, 889 F.2d 1118 (D.C. Cir. 1989).

However, the Appellant has misinterpreted the description of this material. In many instances, the calculational results and technical conclusions contained in the Minutes and Report are not factual in nature but rather are models and estimates and the opinions of technical experts. Much of the data contained in the Minutes and Report is unproven and unverified and is based upon experimental models, estimates and unproven assumptions. In this case, many of the computational results are far from fixed. Instead, they derive from a complex set of judgments, variables and assumptions. See Quarles v. Department of the Navy, 893 F.2d 390, 392-93 (D.C. Cir. 1990) (holding that cost estimates are not factual in nature). These portions of the withheld documents are therefore deliberative in nature.

The preceding analysis indicates that the Report and the Minutes are intra-agency documents that contain predecisional and deliberative material. However, 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 under this subsection.” 5 U.S.C. § 552(b). The segregation and release of non-exempt material is not necessary when it is inextricably intertwined with the exempt material, such that release of the non-exempt material would compromise the confidentiality of the withheld material. Lead Industries Association v. OSHA, 610 F.2d 70, 83-86 (2d Cir. 1979). Nor is segregation necessary when the selection of the factual materials itself would reveal the agency’s deliberative process if released. See, e.g. Wolfe v. Department of Health and Human Services, 839 F.2d 768, 774-76 (D.C. Cir. 1988).

Our review of the documents at issue reveals that portions of the documents are purely factual and should have been released. Yet these documents were withheld in their entirety. Consequently, we shall remand this matter to the Operations Offices. On remand, Oakland and Oak Ridge must review the withheld documents and segregate and release all purely factual portions of the documents, or explain why they should be withheld under other applicable privileges or exemptions.

iv. Other Considerations

Even though we have found that portions of the Report and Minutes are eligible for withholding under Exemption 5, our inquiry is not finished. 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. Yet, neither determination letter indicates that the Operation offices considered the public interest in disclosure. On remand, both Oak Ridge and Oakland should review the requested documents in order to determine whether their release would be in the public interest. If any of the requested information is still withheld on remand, new determination letters should explain why its release would not be in the public interest.

Moreover, it is the policy of the DOE with respect to Exemption 5 to withhold only information that, if released, would result in foreseeable harm to the interests that it protects. See FOIA Update, U.S. Department of Justice, Office of Information and Privacy (Spring 1994); Memorandum from Janet Reno, Attorney General, to Heads of Departments and Agencies (October 4, 1993) (in order to withhold material, agency must first determine that release would foreseeable harm basic institutional interests that underlie the exemption claimed). Neither determination letter articulates any foreseeable harm to the basic interests that underlie Exemption 5. Accordingly, each office (Oakland and Oak Ridge) must, on remand, consider whether release of any information it intends to withhold would result in foreseeable harm to the interests that are protected by Exemption 5.

III. Conclusion

For the reasons set forth above, we are remanding this matter to Oakland and Oak Ridge. On remand, the Operations Offices should segregate and release all non-deliberative material to the Appellant. Furthermore, Oakland and Oak Ridge should consider whether release of the withheld information would be in the public interest or result in foreseeable harm to interests that are protected by Exemption 5. If it is determined that release of withheld information would be in the public interest or would not result in foreseeable harm to interests protected by Exemption 5, and that the withheld information should not be withheld under a different FOIA exemption, it should then be released to the Appellant. Any information that would not be in the public interest to release or would result in foreseeable harm that is protectable under any FOIA exemption may be withheld. (4)

It Is Therefore Ordered That:

(1) The Appeal filed by The Nuclear Control Institute on March 18, 1998 is hereby granted as set forth in paragraph (2) below.

(2) This matter is hereby remanded to the Oakland and Oak Ridge Operations Offices for further proceedings consistent with the guidelines set forth in the above 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 located, or in the District of Columbia.

George B. Breznay

Director

Office of Hearings and Appeals

Date: April 15, 1998

(1)1 The DOE’s FOIA regulations require that an administrative appeal be filed within 30 calendar days of receipt of the determination letter. 10 C.F.R. § 1004.8(a). However, the Appellant was granted an extension of time in which to file the present Appeal. December 12, 1997 letter from George B. Breznay, Director, Office of Hearings and Appeals to Paul Leventhal, President, Nuclear Control Institute.

(2)2 County of Madison v. Department of Justice, 641 F.2d 1036, 1040 (1st Cir. 1981); M/A-Com Information Systems, Inc. v. Department of Health and Human Services, 656 F. Supp. 691, 692 (D.D.C. 1986); NAACP Legal Defense and Educational Fund v. Department of Justice, 612 F. Supp. 1143, 1146 (D.D.C. 1985); Assembly of the State of California v. Department of Commerce, 797 F. Supp. 1554, 1560 (E.D. Calif. 1992).

(3)3 Moreover, a division of opinion exists among the authorities on this issue. See, Coastal States Gas Corp. V. Department of Energy, 617 F.2d 854, 866 (D.C. Cir. 1980).

(4)4 Each Operations Office must take care to segregate and release any non-exempt information. Moreover, if either office intends to continue withholding any information on remand it should be reminded that both the FOIA and the implementing DOE regulations require reasonably specific justifications for the withholding of documents or portions of documents. Mead Data Central, Inc. v. United States Dep't of the Air Force, 566 F.2d 242 (D.C. Cir. 1977); National Parks & Conservation Ass'n v. Kleppe, 547 F.2d 673 (D.C. Cir. 1976); Data Technology Industries, 4 DOE ¶ 80,118 (1979). Conclusory and generalized claims explaining the withholding of material are not acceptable.