Case No. VFA-0406, 27 DOE ¶ 80,140

May 18, 1998

DECISION AND ORDER

OF THE DEPARTMENT OF ENERGY

Appeal

Name of Applicant: James E. Minter

Case Number: VFA-0406

Date of Filing: April 17, 1998

On April 17, 1998, James Minter of Knoxville, Tennessee, filed an Appeal from a determination issued on March 12, 1998, by the Albuquerque Operations Office (Albuquerque Operations) of the Department of Energy (DOE). That determination denied Mr. Minter’s request for information 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. This Appeal, if granted, would require the DOE to release the withheld information.(1)

The FOIA requires that agency records held by a covered branch of the Federal Government, and which have not been made public in an authorized manner, generally be released to the public upon request. 5 U.S.C. § 552(a)(3). In addition to this requirement, the FOIA 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

On December 13, 1997, Mr. Minter filed a FOIA request with Albuquerque Operations, Transportation Safeguard Division. In considering the request, Albuquerque Operations determined that Mr. Minter wanted to know whether the DOE paid a particular DOE employee overtime for physical fitness activity while on specified days of official travel. Physical fitness is apparently a requirement for some DOE jobs. Albuquerque Operations identified two documents as responsive to Mr. Minter’s request. One was the employee’s time card showing the hours worked for the relevant period. The other was his trip report of activities for the requested time period. On March 12, 1998, Albuquerque Operations issued a determination letter in which it asserted that any responsive documents were shielded in their entirety by Exemption 6 of the FOIA, which protects personal privacy. Mr. Minter appeals this decision claiming that no harm to an important interest will result from disclosure of the requested information, and that the agency failed to segregate and release non-exempt material.

ANALYSIS

Exemption 6 permits an agency to make a discretionary withholding of information that must otherwise be released in response to a FOIA request if the materials are “personnel 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). After ensuring that the documents meet the threshold test for types of material covered by Exemption 6, an agency must balance the public interest in disclosure with the privacy interest involved. Department of State v. Ray, 502 U.S. 164, 175 (1991); Department of Justice v. Reporters Comm. For Freedom of the Press, 489 U.S. 749, 762 (1989); Harold H. Johnson, 21 DOE ¶ 80,148 at 80,640 (1991).

First, we find that the documents Albuquerque Operations correctly identified as responsive to this request, trip reports of activities and time cards for hours worked, clearly fall within Exemption 6's threshold requirement that the records be “personnel and medical and similar files.” Under the Supreme Court’s expansive view of this phrase, Exemption 6 extends to “detailed Government records on an individual which can be identified as applying to that individual.” Department of State v. Washington Post Co., 456 U.S. 595, 602 (1982) (quoting H.R. Rep. No. 89-1497, at 11 (1966), reprinted in 1966 U.S.C.C.A.N. 2418, 2428). Both the trip reports and the time cards identifiably relate to the particular person on whom Mr. Minter seeks information.

After determining that Exemption 6 applies to this type of information, we advance to the second part of the Exemption 6 test. This second part has three prongs. For each type of information withheld, we must identify the relevant privacy interest for the concerned individual, and the relevant public interest in release, and then balance these two competing interests.

One of the basic principles underlying the FOIA is that, “[t]he public has a significant, enduring interest in remaining informed about actions taken by public officials in the cause of their duties.” New England Apple Council v. Donovan, 725 F.2d 139, 144 (1st Cir. 1984). For this reason,

[a]s a general matter, there simply is no privacy interest in material stating or describing a federal employee’s official actions or duties ?unless the work somehow reveals something personal or private about the individual . . . or there is some other special circumstance (for example, a reasonable, articulable belief that the person could be subject to harassment. . .).’

Mary Feild Jarvis, 26 DOE ¶ 80,190 at 80,787 (1997) (quoting The Cincinnati Enquirer, 25 DOE ¶ 80,206 at 70,769 (1996) (citations omitted)). See also William H. Payne, 25 DOE ¶ 80,190 at 80,727 (1996). This rule applies to work performed both at and away from the federal employee’s regular duty station. Thus, at the least, as long as the activity is part of his or her official functions and is performed while on official duty time, a federal employee cannot claim a zone of privacy even if the activity takes place away from a government site or on “overtime.” In this case, the trip report, including the description of overtime work, falls into this general rule.

The same general standard outlined above for official duties of federal employees also applies to the aggregate amount of time spent working as a government employee. We have held that there is no privacy interest in the amount (as opposed to the type) of leave-time federal employees use. Marlene Flor, 26 DOE ¶ 80,104 at 80,511 (1996). See also Dobronski v. Federal Communications Comm’n, 17 F.3d 275, 279 (9th Cir. 1994) (records of dates and times of federal employee sick leave non-exempt because of small privacy interest and large public interest in that case); Jafari v. Department of the Navy, 728 F.2d 247, 249 (4th Cir. 1984) (records of reservist attendance at military duties to employer are unrelated to “official nature of those absences; []or to any reason that may have been assigned to [those absences],” and thus their release is not a clearly unwarranted invasion of personal privacy). If there is no privacy interest in the aggregate amount of leave-time used by federal employees, it follows that there usually is no privacy interest in the aggregate amount of time spent performing official functions. Rather, this is simply another facet of the general rule that federal employees ordinarily lack a privacy interest in their official duties. Thus, when the agency seeks to withhold on privacy grounds the aggregate amount of time spent on official duties by its employees, it can do so only when the release of the material would reveal something personal or private about a person or would implicate other special circumstances. See also Greenpeace U.S.A., Inc. v. Environmental Protection Agency, 735 F. Supp. 13, 14 (D.D.C. 1990) (record showing official attendance of EPA employee at public meeting not withholdable under FOIA Exemption 6); American Fed’n of Gov’t Employees v. National Aeronautics and Space Admin., 482 F. Supp. 281, 282-83 (S.D. Tex. 1980) (daily sign-in sheet is not protected by Privacy Act because it is not “in and of itself, reflective of some quality or characteristic of an individual”).

In this case, Albuquerque Operations did not explain the privacy interest it identified and how it fits into the standard articulated above for either of the responsive documents it withheld. Accordingly, we will remand this case to Albuquerque Operations to either release the withheld material or issue a new determination. In the event it continues to withhold the information, Albuquerque Operations must either explain the application of a different exemption or explain the privacy interest in this material as outlined in this Decision. Even if it does find some privacy interest, before it may withhold the information Albuquerque Operations must identify any public interest in release and determine that on balance the privacy interest outweighs the public interest. In addition, if Albuquerque Operations withholds any material, it must segregate and release any non-exempt information.(2)

It Is Therefore Ordered That:

(1) The Appeal filed by James Minter of Knoxville, Tennessee, OHA Case No. VFA-0406, is hereby granted as specified in Paragraph (2) below, and is denied in all other respects.

(2) This matter is hereby remanded to the Albuquerque Operations Office to issue a new determination in accordance with the instructions set forth in the above Decision and Order.

(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 in the district in which the requester resides or has a principal place of business, or in which the alleged agency records are situated, or in the District of Columbia.

George B. Breznay

Director

Office of Hearings and Appeals

Date: May 18, 1998

(1)Mr. Minter also cited the Privacy Act as a basis for both his original request for information and for this Appeal. The Privacy Act, insofar as it is relevant to this case, only applies to “access to record[s] or to any information pertaining to [the requester] which is contained in the system [of records].” 5 U.S.C. § 552a(d). In his request, Mr. Minter seeks information about a person other than himself. Consequently, Albuquerque Operations correctly determined that only the FOIA applied to his request.

(2)In this case, it is possible there may be additional responsive documents such as payroll records that show the payment of overtime. If these records exist, Albuquerque Operations should identify and analyze them in the same manner as described for the other identified documents discussed in this decision.