Case No. VFA-0400, 27 DOE ¶ 80,131
April 17, 1998
DECISION AND ORDER
OF THE DEPARTMENT OF ENERGY
Appeal
Name of Petitioner:FAS Engineering Incorporated
Date of Filings:March 23, 1998
Case Numbers:VFA-0400
VFA-0401
On March 23, 1998, FAS Engineering Incorporated (FAS) filed Appeals from two determinations that the Freedom of Information Act Official of the Idaho Operations Office (FOIA Official) of the Department of Energy (DOE) issued to it on February 12, 1998. In those determinations, the FOIA Official partially granted requests for information that FAS filed under the Freedom of Information Act (FOIA), 5 U.S.C. § 552, which the DOE has implemented in 10 C.F.R. Part 1004. The FOIA requires that a federal agency generally release documents to the public upon request. The FOIA, however, lists nine exemptions that set forth the types of information that a federal agency may withhold at its discretion. 5 U.S.C. § 552(b); 10 C.F.R. § 1004.10(b).
I. Background
In its requests for information, FAS sought all information relating to DOE Solicitations DE-PS07- 97ID13520 and DE-PS07-95ID13349. In his determinations, the FOIA Official, pursuant to Exemption 5 of the FOIA, withheld in their entirety the “individual detailed application evaluations” for each bid solicitation. The FOIA Official also released seven other documents, but redacted information from six of them pursuant to Exemption 5 of the FOIA. In its Appeal, FAS requests that the DOE release all of the withheld and redacted information on the following grounds:
- The law mandates prompt release of information normally available through civil discovery or litigation.
- The DOE should release all of the names, resumes, and affiliations of all evaluators and decision makers.
- The DOE should provide the complete text of evaluations and decisions.
II. Analysis
Exemption 5 of the FOIA 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) (footnote omitted). The courts have identified several privileges that fall under this definition. These privileges include the attorney-client privilege, the attorney work-product privilege and the executive "deliberative process" or "predecisional" privilege. Coastal States Gas Corp. v. Department of Energy, 617 F.2d 854, 862 (D.C. Cir. 1980) (Coastal States). Only the "deliberative process" privilege is at issue here.
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 formulates decisions and policies. Sears, 421 U.S. at 150. The ultimate purpose of the exemption 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 Exemption 5 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).
The FOIA Official withheld in their entirety the “individual detailed application evaluations” for the two bid solicitations. We reviewed these evaluations and find that they contain some information that is both predecisional and deliberative pursuant to Exemption 5. However, these documents also contain segregable factual information, including “rating guidelines” and headings, that the DOE may not withhold pursuant to Exemption 5. Furthermore, many of the redacted documents also contain additional segregable factual information, such as headings and the names of DOE contractor employees. Unless the names of contractor employees are “inextricably intertwined” with exempt material, the DOE may not withhold these names pursuant to Exemption 5. The DOE has not sufficiently explained how these contractor names meet the requirements of the deliberative process privilege of Exemption 5. Finally, the DOE released portions of FAS’s bid proposals to FAS, but withheld from FAS other companies’ bid proposal information. Exemption 5 does not permit the DOE to withhold the proposal information it received from bidders since the information does not fall into the category of “inter-agency or intra-agency” documents. For these reasons, we will direct the FOIA Official to review all of these documents again and either release factual information, such as “rating guidelines,” headings, names of contractor employees and bid proposal submissions contained in these documents, or provide a detailed explanation for withholding any such information.
It Is Therefore Ordered That:
(1) The Appeals FAS Engineering Incorporated filed on March 23, 1998, Case Nos. VFA-0400 and VFA-0401, are hereby granted as set forth in paragraph (2) below, and are denied in all other respects.
(2) This matter is hereby remanded to the Freedom of Information Act Official of the Idaho Operations Office of the Department of Energy for further action in accordance with the directions set forth in this Decision.
(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 either in the district where 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 17, 1998