Case No. VFA-0405, 27 DOE ¶ 80,135

April 30, 1998

DECISION AND ORDER

OF THE DEPARTMENT OF ENERGY

Appeal

Name of Petitioner: Diane C. Larson

Date of Filing: April 14, 1998

Case Number: VFA-0405

This decision concerns an Appeal filed on April 14, 1998 by Diane C. Larson (Appellant). The Appellant submitted a request for information to the Department of Energy’s (DOE) Office of Inspector General (IG) seeking copies of an IG case file (Case File No. I96RS154) under the Freedom of Information Act (FOIA), 5 U.S.C. § 552, as implemented by the DOE in 10 C.F.R. Part 1004. Determination Letter at 1. On March 16, 1998, the IG issued a determination in response to this request, redacting the names of individuals and other identifying information from five of the six documents it provided to the Appellant. On April 14, 1998, the Appellant filed the present Appeal, contending that the IG's withholding of the information was improper.

While the FOIA generally requires that information held by government agencies be released to the public upon request, Congress has provided nine exemptions to the FOIA which set forth the types of information agencies are not required to release. Only Exemptions 6 and 7(C) are at issue in the present case.

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).

Exemption 7(C) allows an agency to withhold "records or information compiled for law enforcement purposes, if release of such law enforcement records or information . . . 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). The threshold test for withholding information under Exemption 7(C) is whether such information is compiled as part of or in connection with an agency law enforcement proceeding based on either civil and criminal statutes. FBI v. Abramson, 456 U.S. 615, 622 (1982); Rural Housing Alliance v. Department of Agriculture, 498 F.2d 73, 81 & n.46 (D.C. Cir. 1974); Williams v. IRS, 479 F.2d 317, 318 (3d Cir. 1973), cert. denied sub nom. Donolon v. IRS, 414 U.S. 1024 (1973). By law, the IG is charged with investigating waste, fraud, and abuse in programs and operations administered or financed by the DOE. 5 U.S.C. Appendix 3 § 4. The IG is therefore a classic example of an organization with a law enforcement mandate. In the present case the IG’s investigatory actions were clearly within this statutory mandate.

In order to determine whether a record may be withheld under either Exemption 6 or 7(C), an agency must undertake a three-step analysis. First, the agency must determine whether or not a significant privacy interest would be compromised by the disclosure of the record. If no privacy interest is identified, the record may not be withheld pursuant to either of the exemptions. Ripskis v. Department of Hous. and Urban Dev., 746 F.2d 1, 3 (D.C. Cir. 1984) (Ripskis). Second, if privacy interests exist, the agency must determine whether or not release of the document would further the public interest by shedding light on the operations and activities of the Government. See Reporters Committee for Freedom of the Press v. Department of Justice, 109 S. Ct. 1468, 1481 (1989) (Reporters Committee). Finally, the agency must weigh the privacy interests it has identified against the public interest in order to determine whether release of the record either (1) would constitute a clearly unwarranted invasion of personal privacy (the Exemption 6 standard), or (2) could reasonably be expected to constitute an unwarranted invasion of personal privacy (the Exemption 7(C) standard). See generally Ripskis, 746 F.2d at 3.

The IG has found a privacy interest in the identities of the individuals whose names have been withheld. The Determination letter states in pertinent part:

Names and information that would tend to disclose the identity of certain individuals have been withheld pursuant to Exemptions 6 and 7(C). Individuals involved in Office of Inspector General investigations, which in this case includes reprisal complainants, are entitled to privacy protections so that they will be free from harassment, intimidation and other personal intrusions.

Determination Letter at 1. Because of the obvious possibility of harassment, intimidation, or other personal intrusions, the courts have consistently recognized significant privacy interests in the identities of individuals whose names are contained in investigative files. Safecard Services, Inc. v. S.E.C., 926 F.2d 1197 (D.C. Cir. 1991); KTVY-TV v. United States, 919 F.2d 1465, 1469 (10th Cir. 1990) (finding that withholding identity necessary to avoid harassment of individual); Cucarro v. Secretary of Labor, 770 F.2d 355, 359 (3d Cir. 1985). Accordingly, we have followed the courts’ lead. James L. Schwab, 21 DOE ¶ 80,117 at 80,556 (1991); Lloyd R. Makey, 20 DOE ¶ 80,129 (1990).

In Reporters Committee, the Supreme Court narrowed the scope of the public interest in the context of the FOIA. The Court found that only information which contributes significantly to the public's understanding of the operations or activities of the Government is within "the ambit of the public interest which the FOIA was enacted to serve." Id. The Court therefore found that unless the public would learn something directly about the workings of government from the release of a document, its disclosure is not "affected with the public interest." Id.; see also National Ass’n of Retired Employees v. Horner, 879 F.2d 873, 879 (D.C. Cir. 1989), cert. denied, 494 U.S. 1078 (1990). We fail to see how release of the identities of individuals in the present case would inform the public about the operations and activities of Government. Accordingly, we find that there is little or no public interest in disclosure of the individuals’ identities.

After weighing the significant privacy interests present in this case against an insubstantial or non-existent public interest, we find that release of information revealing an individual’s identity would constitute a clearly unwarranted invasion of personal privacy. Accordingly, we once again find that the identities of the individuals were properly withheld under Exemptions 6 and 7(C). See, e.g., Tod Rockefeller, 26 DOE ¶ 80,238 (1997).

While we are strongly committed to keeping the public fully informed about DOE actions, we are also mindful of the need to preserve the privacy rights of individuals. By releasing the responsive document with only those redactions necessary to prevent identification of specific individuals, which is what has been done here, the agency can provide as much information as possible while safeguarding individual privacy rights.

It Is Therefore Ordered That:

(1) The Freedom of Information Act Appeal filed by Diane C. Larson on April 14, 1998 (Case Number VFA-0405) 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 situated, or in the District of Columbia.

George B. Breznay

Director

Office of Hearings and Appeals

Date: April 30, 1998