Case No. VFA-0397, 27 DOE ¶ 80,134

April 30, 1998

DECISION AND ORDER

OF THE DEPARTMENT OF ENERGY

Appeal

Name of Petitioner: Eva Glow Brownlow

Date of Filing: March 23, 1998

Case Number: VFA-0397

On March 23, 1998, Eva Glow Brownlow filed an Appeal from a determination issued to her on March 5, 1998, by the Albuquerque Operations Office (AL) of the Department of Energy. That determination concerned a request for information that Ms. Brownlow 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, AL 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 5, 1997, Ms. Brownlow filed a FOIA request seeking copies of several documents related to a Reduction-in-Force (RIF) Exercise that AL conducted in September 1997. Ms. Brownlow specifically requested, inter alia, a copy of the RIF notice which would have been mailed to her as part of a RIF exercise and documents regarding her standing on a Retention Register prepared in anticipation of a RIF. See Determination Letter at 1. In its March 5, 1998 determination letter, AL identified one document responsive to Ms. Brownlow’s request. (1) AL located a Retention Register that was applicable at the time of the RIF exercise. A Retention Register is a listing based on the records of current employees who are in the same competitive level, i.e. job title, series and grade, and is prepared in anticipation of a RIF. AL withheld this document in its entirety pursuant to Exemption 5 of the FOIA. The Determination Letter further stated that because a RIF

was never ordered by the DOE, the requested information is considered predecisional in nature and protected by Exemption 5. Id. at 1. The Determination Letter also concluded that the release of the document would not be in the public interest.

On March 23, 1998, Ms. Brownlow filed the present Appeal with the Office of Hearings and Appeals (OHA). In her Appeal, Ms. Brownlow asserts that AL has not explained how the release of the Retention Register would harm the government’s decision-making processes. Additionally, Ms. Brownlow argues that DOE Headquarters has previously provided selected RIF exercise information to its employees, “some or all of which was certainly predecisional.” See Appeal Letter at 2. Further, Ms. Brownlow asserts that AL has not demonstrated how the requested information would be “detrimental” to the public interest. Id. at 3. For these reasons, Ms. Brownlow requests that the OHA direct AL 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 RIF exercise information, AL 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 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).

The document at issue is a Retention Register for those positions at AL that would possibly have been affected during a RIF exercise in September 1997. According to AL, on August 1, 1997, Deputy Secretary Elizabeth Moler advised all DOE offices “to take actions necessary to prepare for a RIF based on the House of Representatives appropriations mark-up to the DOE budget.” Determination Letter at 1. The Office of Human Resources at AL prepared this Retention Register in anticipation of a RIF. See Memorandum of Telephone Conversation between Veronica Monthan, Chief of Employment, AL and Kimberly Jenkins-Chapman, Staff Attorney, OHA (April 9, 1998). However, AL has stated that its Manager requested an extension of the deadline for the issuance of RIF notices in order to “rework” the Retention Register. Memorandum of Telephone Conversation between Veronica Monthan, Chief of Employment, AL and Kimberly Jenkins-Chapman, Staff Attorney, OHA (April 23, 1998). Further, AL has indicated that it was awaiting approval of its extension request when the Deputy Secretary advised it that a RIF would not take place. Id. Thus, AL maintains that the Retention Register was not in its final form, but rather a draft document which was pre-decisional in nature. Id.

Given the facts presented to us, we find that the requested document is a pre-decisional, deliberative intra-agency document. It was created by AL officials in anticipation of a RIF that never occurred, consists of recommendations which reflect the consultative process and never reached its final form. It is well settled that draft documents, by their very nature, are pre-decisional and deliberative. This category of documents has been afforded Exemption 5 protection because draft documents typically reflect “tentative views which might be altered or rejected upon further deliberation by the authors or by their superiors.” Coastal States, 617 F.2d at 866; Committee to Bridge the Gap, 20 DOE ¶ 80,127 (1990). Consequently, we have determined that Exemption 5 was properly applied to the document at issue. However, a very small amount of segregable factual material, consisting of column headings, has been released to Ms. Brownlow.

In addition, Ms. Brownlow has argued that because some offices at DOE Headquarters have provided RIF information to their employees, AL should provide the same type of information to her. We find this argument to be unpersuasive. The fact that a DOE office has exercised its discretion to release similar documents outside of the FOIA process is not determinative of whether a particular document may properly be withheld pursuant to the FOIA and is irrelevant to this Appeal. See Dennis Kirson, 26 DOE ¶ 80,225 (1997).

III. Public Interest Determination

The DOE regulations provide that the DOE shall release to the public material exempt from mandatory disclosure under the FOIA if the DOE determines that federal law permits disclosure and it is in the public interest. 10 C.F.R. § 1004.1. Notwithstanding our finding that AL properly applied Exemption 5 to most of the requested information, we must consider whether the public interest nevertheless requires disclosure pursuant to 10 C.F.R. § 1004.1. In applying this regulation, we note that the Department of Justice has reviewed its administration of the FOIA and adopted a “foreseeable harm” standard for defending FOIA exemptions. 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).

In the present case, the requested RIF exercise information consists of preliminary recommendations by AL Human Resource officials regarding which positions could be eliminated in the eventuality of a RIF. The release of this information would in our opinion have a chilling effect on the willingness of AL officials to make recommendations or voice opinions regarding a very sensitive issue potentially affecting the jobs of DOE employees. Employees and managers would be less likely to communicate their recommendations on this and similar issues if they knew or suspected that an agency would release their opinions to the public. Ms. Brownlow asserts that AL has not addressed how the release of the RIF information would not serve the public interest. However, AL officials have stated that, and we agree, the release of preliminary and therefore possibly inaccurate RIF exercise information could cause unnecessary confusion and distress among employees at AL. Consequently, we find that this harm satisfies the reasonably foreseeable harm standard that the Attorney General articulated and that the release of the material contained in the requested information and protected pursuant to Exemption 5 would not be in the public interest. See Kirson, 26 DOE ¶ 80,225 at 80,869.

It Is Therefore Ordered That:

(1) The Appeal filed by Eva Glow Brownlow on March 23, 1998, Case Number VFA-0397, 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 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 30, 1998

(1)Although Ms. Brownlow requested several documents pertaining to herself, AL has informed us that it has identified only one responsive document, the Retention Register, related to Ms. Brownlow’s request. See Record of Telephone Conversation between Veronica Monthan, Chief of Employment, AL and Kimberly Jenkins- Chapman, Staff Attorney, OHA (April 9, 1998).