Case No. VFA-0411, 27 DOE ¶ 80,143

June 4, 1998

DECISION AND ORDER

OF THE DEPARTMENT OF ENERGY

Appeal

Name of Petitioner:David E. Ridenour

Date of Filing: May 6, 1998

Case Number: VFA-0411

On May 6, 1998, David E. Ridenour completed the filing of an Appeal from a final determination that the Office of Inspector General (OIG) of the Department of Energy (DOE) issued on March 31, 1998. (1) In its determination, OIG withheld portions of six documents and did not provide copies of 18 other documents that were responsive to a request for information that Mr. Ridenour filed under the Freedom of Information Act (FOIA), 5 U.S.C. § 552, as implemented by the DOE in 10 C.F.R. Part 1004.

I. BACKGROUND

In a request for information, dated November 28, 1997 (Request), Mr. Ridenour sought documents pertaining to his April 1997 complaint to OIG regarding DOE management misconduct. (2) In a March 31, 1998 determination letter (Determination Letter), OIG provided Mr. Ridenour with a list of 33 documents responsive to his request.(3) The Determination Letter stated that three documents (Document Nos. 4, 5 and 6) originated with other DOE offices and that these offices would provide Mr. Ridenour with a determination regarding those documents. The Determination Letter enclosed copies of six documents (Document Nos. 7, 8, 27, 29, 30 and 31) in their entirety. Redacted copies

of six other documents (Document Nos. 1, 2, 3, 22, 24 and 28) were also provided to Mr. Ridenour. The Determination Letter stated that information in Document Nos. 1, 2, 3, 22 and 24 was being withheld pursuant to Exemptions 6 and 7(C). The information withheld in these documents consisted of names and other information which could disclose the identity of certain individuals. The Determination Letter stated that the individuals mentioned in the documents were entitled to "privacy protections so that they will be free from harassment, intimidation and other personal intrusions" and that it would not be in the public interest to release the withheld material. Determination Letter at 1. Portions of Document No. 28 were withheld pursuant to Exemption 5. The Determination Letter stated Exemption 5's purpose was to protect the deliberative and consultative process of government and that the material withheld in that document consisted of an OIG agent's note containing "predecisional deliberative data which would have been subject to change." Id. With regard to the remaining identified 18 responsive documents, the Determination Letter stated that they would not be provided to Mr. Ridenour since those documents "were either written by you [Mr. Ridenour] or were provided by you and would already be in your possession." Id. at 2.

In his submission, Mr. Ridenour asserts several grounds for his Appeal. First, he claims that he should have been provided a determination regarding the three documents which were referred to other DOE offices. In this regard, Mr. Ridenour states that the time period for OIG's response pursuant to the FOIA has elapsed. In addition, Mr. Ridenour argues that OIG was inconsistent in its release of material. Specifically, he states that while he was given redacted copies of two responsive documents which he authored in whole or in part (Document Nos. 22 and 24), he was not provided copies of 18 other responsive documents of which he was the author (Document Nos. 9-21, 23, 25, 26, 32 and 33). Mr. Ridenour also argues that other unidentified documents must exist since he was not provided a copy of several reports mentioned in Document No. 28. Mr. Ridenour also challenges the propriety of OIG's withholding of information from Document Nos. 1-3, 22, 24 and 28. Specifically, with regard to Document Nos. 22 and 24, Mr. Ridenour asserts that the withholding was inappropriate since he was the author of Document No. 22 and of an attachment to Document No. 24.

II. ANALYSIS

A. Adequacy of the Search

The FOIA requires that federal agencies generally release documents to the public upon request. Following an appropriate request, the FOIA requires agencies to search their records for responsive documents. We have stated on numerous occasions that a FOIA request deserves a thorough and conscientious search for responsive documents, and we have not hesitated to remand a case where it is evident that the search conducted was in fact inadequate. See, e.g., Eugene Maples, 23 DOE ¶ 80,106 (1993); Native Americans for a Clean Environment, 23 DOE ¶ 80,149 (1993). To determine whether an agency's search was adequate, we must examine its actions under a "standard of reasonableness." McGehee v. CIA, 697 F.2d 1095, 1100-01 (D.C. Cir. 1983), modified in part on rehearing, 711 F.2d 1076 (D.C. Cir. 1983). This standard "does not require absolute exhaustion of the files; instead, it requires a search reasonably calculated to uncover the sought materials." Miller v. Department of State, 779 F.2d 1378, 1384-85 (8th Cir. 1985).

OIG informed us that when it received Mr. Ridenour's Request, it conducted a computer search of its files. Based upon this search, OIG identified two files which were most likely to contain responsive documents. One of the files was the investigation file pertaining to the complaint mentioned in the request. The other file was an investigation file pertaining to another complaint Mr. Ridenour filed later in 1997. OIG identified all responsive documents in each of the files in its Determination Letter. OIG informed us that all documents responsive to Mr. Ridenour's request would be located in these files and that it had no knowledge of any responsive documents that would exist in any other files. See Memorandum of telephone conversation between Pamela Langer, Counsel, OIG, and Richard Cronin, OHA Staff Attorney (May 18, 1998). Given the facts described above, we believe that OIG's search was reasonably calculated to discover responsive documents.

Mr. Ridenour's argument regarding the existence of other documents is unavailing. While Document No. 28 does reference other documents, OIG has informed us that some reports are not customarily retained in a closed investigative file if relevant portions were incorporated in other documents in the file. Consequently, all documents used in an investigation are not necessarily retained in their entirety in an OIG investigative file. See Memorandum from Pamela Langer, Attorney, OIG, to Richard Cronin, OHA Staff Attorney (May 13, 1998). In light of this information, we can not conclude that additional documents exist at OIG by virtue of the fact that they were mentioned in Document No. 28. Consequently, we find OIG's search to be adequate.

B. Exemption 5

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 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 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, the 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, 1078 (D.C. Cir. 1971).

OIG withheld portions of Document No. 28 pursuant to Exemption 5. The document, entitled "Agent's Notes," contains a list by date of an OIG agent's activities regarding Mr. Ridenour's complaint. The withheld information in the document appears to contain mostly factual, non- deliberative information. Exemption 5 does not protect the type of information withheld in Document No. 28. Consequently, we will remand this matter to OIG so that it may either release the withheld information or issue another determination explaining why the information may be withheld pursuant to the FOIA. (4)

C. Exemptions 6 and 7(C)

In five documents provided to Mr. Ridenour (Document Nos. 1-3, 22 and 24), OIG withheld the names, titles and other identifying information of individuals mentioned in these documents. Each of these documents was contained in the OIG investigatory file regarding Mr. Ridenour's April 1997 complaint.

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).

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. See Ripskis v. Department of Hous. and Urban Dev., 746 F.2d 1, 3 (D.C. Cir. 1984) (Ripskis). Second, 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, 489 U.S 749 (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 (Exemption 6); Stone v. FBI, 727 F.Supp 662, 663-64 (D.D.C. 1990) (Exemption 7(C)).

We have previously considered cases in which both Exemption 6 and 7(C) were invoked, and we stated that in such cases, provided the Exemption 7 threshold requiring a valid law enforcement purpose is met, we would analyze the withholding only under Exemption 7(C), the broader of the two exemptions. See, e.g., K.D. Moseley, 22 DOE ¶ 80,124 (1992). Since, as discussed below, all of the documents involved here were compiled for law enforcement purposes, any document that satisfies Exemption 7(C)'s "reasonableness" standard will be protected. Conversely, documents not protected by Exemption 7(C) will be unable to satisfy Exemption 6's more restrictive requirement that they constitute a clearly unwarranted invasion of personal privacy.

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. FBI v. Abramson, 456 U.S. 615, 622 (1982). The scope of Exemption 7 encompasses enforcement of both civil and criminal statutes. Rural Housing Alliance v. Department of Agriculture, 498 F.2d 73, 81 & n.46 (D.C. Cir. 1974). By law, OIG 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. OIG is therefore a classic example of an organization with a clear law enforcement mandate. Ortiz v. Department of Health and Human Services, 70 F.3d 729, 732-33 (2d Cir. 1995) (Ortiz) and cases cited therein. In the present case, OIG's actions in investigating Mr. Ridenour's complaint regarding alleged misconduct of a DOE management official were clearly within this statutory mandate and the documents at issue were created for a law enforcement purpose.

(1) Privacy Interest

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 mentioned in law enforcement files, whether they be suspects, witnesses or investigators. See, e.g., Fitzgibbon v. CIA, 911 F.2d 755, 767 (D.C. Cir. 1990); Computer Professionals for Social Responsibility v. United States Secret Service, 72 F.3d 897, 904 (D.C. Cir 1996) (Computer Professionals). Accordingly, we find that the individuals whose identities were withheld in this case have significant privacy interests in maintaining their confidentiality.

(2) Public Interest in Disclosure

In Reporters Committee, the Supreme Court found that in FOIA contexts, the public interest in disclosure must be measured in terms of its relation to the FOIA's basic purpose. Reporters Committee, 489 U.S. at 772. The Court identified the basic purpose of the FOIA as "'to open agency action to the light of public scrutiny.'" Id. (quoting Department of Air Force v. Rose, 425 U.S 352, 372 (1976)). Therefore, the Court held that official information that sheds light on an agency's performance of its statutory duties falls squarely within that statutory purpose. Id. at 773. The Court further found that information about private citizens that is contained in government files but reveals little or nothing about an agency's own conduct does not further the basic purpose of the FOIA. Id. We note that, in Mr. Ridenour's initial request to OIG, he cited a public interest (for the purposes of a request for a waiver of fees) in enabling the public to understand how their government works regarding the oversight of management integrity and ethics. Letter from David E. Ridenour to GayLa Sessoms, Director, FOIA/Privacy Act Division (November 28, 1997). Assuming arguendo that this is the public interest to be served by release of the withheld names, such interest would be insubstantial. Names appearing in law enforcement files are generally not themselves very probative of an agency's behavior or performance. See SafeCard Services v. SEC, 926 F.2d 1197 at 1205 (D.C. Cir 1991). Such information would only serve a significant public interest if there is compelling evidence that an agency is engaged in illegal activity. Id. After examining the documents in question, it is not apparent that release of the individuals' names and identifying information would contribute to the public's understanding of the DOE's behavior or performance in carrying out its duties. Nor is there compelling evidence before us of illegal activity. Thus, in the present case, we conclude there is little or no public interest in the disclosure of the names and identifying information withheld in the documents at issue in the present case.

(3) The Balancing Test

Because release of the individuals' names or other identifying information could reasonably be expected to subject them to harassment or intimidation or other personal intrusions, we find that significant privacy interests exist for these individuals. After weighing the significant privacy interests present in this case against little or no public interest, we find that release of information revealing the individuals' identities could reasonably be expected to constitute an unwarranted invasion of personal privacy. Consequently, we find that the OIG properly withheld the information redacted in Document Nos. 1-3, 22 and 24 under Exemptions 6 and 7(C).

Our conclusion with regard to Document Nos. 22 and 24 is not changed by virtue of the fact that Mr. Ridenour authored all or part of these documents. In considering this argument in an earlier case, we held that a requester's status as an author of requested documents is irrelevant to our review under the FOIA. W.F. Lawless, 13 DOE ¶ 80,109 at 80,540 (1985). Subsequently, the Supreme Court held that the "identity of the requesting party" has "no bearing on the merits" of a FOIA request with the exception of certain cases involving a claim of privilege. Reporters Committee, 489 U.S. at 771. Consequently, Mr. Ridenour's argument is without merit.

D. Failure of OIG to Issue a Determination Regarding Document Nos. 4, 5 and 6

Mr. Ridenour challenges OIG's failure to issue a determination regarding Document Nos. 4, 5 and 6 within the mandated deadline of 10 days as provided by the FOIA.(5) OIG, in its Determination Letter, stated that it had referred the documents to the DOE offices from which they originated so that those offices could issue Mr. Ridenour a determination.

With regard to Mr. Ridenour's argument, we find that we do not have jurisdiction to decide this issue. OHA jurisdiction in FOIA Appeals extends only to cases where

the Authorizing Official has denied a request for records in whole or in part or has responded that there are no documents responsive to the request . . . or when the Freedom of Information Officer has denied a request for waiver of fees . . . .

10 C.F.R. § 1004.8(a). As to Document Nos. 4, 5 and 6, no determination has been made by a DOE office. Consequently, until a determination is made regarding those documents, we have no jurisdiction to consider a FOIA Appeal concerning those documents. When Mr. Ridenour receives a determination regarding those documents, he may then submit an Appeal to us. (6)

E. OIG Failure to Provide Copies of Documents Authored by Mr. Ridenour

In his Appeal, Mr. Ridenour asserts that OIG was inconsistent in providing copies of only some of the responsive documents of which he was the author. Specifically, Mr. Ridenour states that he was provided two of the responsive documents (Document Nos. 22 and 24) he authored in whole or in part but was not provided the 18 other responsive documents he authored. With respect to this issue, OIG informs us that it generally does not provide copies of documents authored by a FOIA requester since the requester already has such documents in his or her possession. However, OIG did provide Document Nos. 22 and 24 to Mr. Ridenour because each document contained information not written by Mr. Ridenour. See Memorandum from Pamela Langer, Attorney, OIG, to Richard Cronin, OHA Staff Attorney (May 13, 1998).

We believe that OIG's policy regarding documents originating from a FOIA requester in most instances reflects the wishes of the requester. However, in this case, the requester apparently seeks copies of all responsive documents, even those he authored. We can find no provision of the FOIA that would permit an agency not to make a determination regarding such documents. Consequently, on remand, OIG should issue a determination regarding Document Nos. 9-21, 23, 25, 26, 32 and 33.

It Is Therefore Ordered That:

(1) The Appeal filed by David E. Ridenour on May 6, 1998, Case No. VFA-0411, is hereby granted in part as set forth in Paragraph (2).

(2) This matter is remanded to the Department of Energy's Office of Inspector General for further consideration in accordance with the instructions contained in the foregoing 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: June 4, 1998

Appendix A

Document No. Document

  1. Cover of File jacket
  2. Basic case information/computer record
  3. Hotline Complaint form
  4. Memo from Mahaley to Baker (6/6/97)
  5. Office of Security Evaluation, Corrective Action Plan
  6. Office of Oversite’s [sic] Rocky Flats Report
  7. MOI by Berrett (6/11/97)
  8. Berrett’s handwritten notes (6/11/97)
  9. Copy of Security Officer Vacancy Announcement
  10. Memo from Dalton to McCormick/Ridenour (1/13/97)
  11. Letter to Dalton from Flats (3/25/97)
  12. Memo to Ridenour from Rocky Flats (3/27/97)
  13. Letter to Roberson from Ridenour (3/31/97)
  14. Copy of position description for GS-15 Security Officer
  15. Letter to Ridenour from Roberson (4/11/97)
  16. Fax from Ridenour to “Linn Morain” (4/19/97)
  17. Letter from Ridenour (unaddressed, undated)
  18. Letter from Ridenour to “Lyn Moran” (4/14/97)
  19. Same as #13
  20. Same as #17
  21. Letter from Ridenour (unaddressed, undated)
  22. Fax from Ridenour to Pat Pinkey (5/21/97)
  23. Letter from Ridenour to Pena (4/16/97)
  24. Memo to INV from Layton (5/8/97)
  25. Same as #21
  26. Letter from Ridenour (unaddressed, undated)
  27. Fax from Scherer to Childress
  28. Agents Notes
  29. Cover of File jacket
  30. Basic case information/computer record
  31. Hotline Complaint form
  32. Ridenour’s business card
  33. Letter from Ridenour to OSC, OPM, and INV (11/11/97)

(1)Mr. Ridenour's initial submission did not contain the required copy of the determination letter from which he appealed. See 10 C.F.R. § 1004.8(b). We deemed Mr. Ridenour's appeal filed upon our receipt of the determination letter on May 6, 1998.

(2)In the Request, Mr. Ridenour specifically requested the following documents: (1) all unclassified documentation relating to his complaint; (2) a listing of the unclassified titles, dates and the office responsible for generating all classified documents regarding his complaint; (3) all unclassified reports regarding the status or disposition of his complaint; and (4) a listing of unclassified titles and dates for all classified reports concerning the status or disposition of his complaint.

(3)The 33 responsive documents OIG identified are listed in Appendix A.

(4)On remand, OIG may wish to consider if Exemption 6 and 7(C) would be applicable to some of the information originally withheld in Document No. 28.

(5)We note that the 10-day deadline was recently extended to 20 days with the enactment of the Electronic Freedom of Information Act Amendments of 1996, Pub. L. No. 104-231, 110 Stat 3048. See 5 U.S.C. § 552(a)(6)(A)(i). Nevertheless, Mr. Ridenour has not received a determination regarding Document Nos. 4, 5 and 6 within the 20 day deadline.

(6)If a requester does not receive a response at the end of the 20-day period, the requester may deem his administrative remedies as exhausted and has a right to a review in a district court of the United States. 5 U.S.C. § 552(a)(4)(B), (6)(A)(i), and (6)(C)(i); cf. Pollack v. Department of Justice, 49 F. 3d 115, 118-19 (4th Cir 1995) cert. denied, 516 U.S. 843 (1995) (case decided under prior 10 day deadline).