Case No. VFA-0423, 27 DOE ¶ 80,150

July 28, 1998

DECISION AND ORDER

OF THE DEPARTMENT OF ENERGY

Appeal

Name of Appellant: Edwin S. Rothschild

Date of Filing: July 1, 1998

Case Number: VFA-0423

Edwin S. Rothschild files this Appeal under the Freedom of Information Act (FOIA), 5 U.S.C. § 552, as implemented by the Department of Energy (the Department) at 10 C.F.R. § 1004. The subject of the Appeal is a determination letter that the Department’s Deputy Assistant Secretary for Strategic Petroleum Reserves (the Denying Official) issued in response to Rothschild’s request for records pursuant to the FOIA. As explained below, we will deny the Appeal.

The origin of this Appeal lies in a request that Rothschild filed on July 7, 1997. In the request, Rothschild sought:

all records --draft reports, memoranda, analysis, meeting minutes, briefing documents, e-mail messages, etc. pertaining to a report to Congress on the costs and benefits of a regional petroleum product reserve, as well as all records pertaining to consideration of a regional petroleum product reserve with regard to the Department of Energy’s Policy Statement of the Strategic Petroleum Reserve.

The Department released various documents, and withheld a number on the ground that they were "inter-agency or intra-agency memorandums or letters which would not be available by law to a party ... in litigation with the agency," provided in the FOIA at 5 U.S.C. § 552(b)(5), 10 C.F.R. § 1004.10(b)(5) (Exemption 5). The Denying Official stated that the requested documents came within two categories of material protected from disclosure by Exemption 5: documents produced during a "deliberative process," and documents protected by the attorney-client privilege.(1)

Rothschild appealed the determination to the U.S. District Court for the District of Columbia. In his appeal to the court, Rothschild conceded that the responsive documents were predecisional and deliberative. He argued, however, that the Department’s search for responsive documents was inadequate, and that the Department waived the deliberative process privilege by authorizing a meeting between a Departmental subcontractor who was preparing the report and a representative of the petroleum industry. The court granted summary judgment to the Department, upholding the Department’s decision to withhold the documents. Rothschild v. Department of Energy, Civil Action No. 97-1825 (May 1, 1998).

The Department issued a report to Congress regarding the proposed regional petroleum product reserve on May 13, 1998.(2) Rothschild then filed a second FOIA request for the the same documents. The request was denied in a determination letter dated June 29, 1998. In response to this determination letter, Rothschild filed the present appeal, arguing that the publication of the report "mandates the release of the responsive requested documents." Appeal at 2.

The FOIA generally requires that documents held by the federal government be released to the public upon request. There are, however, nine exemptions to the FOIA that set forth the types of information agencies are not required to release.

Exemption 5, which is at issue in this appeal, exempts a broad range of material, encompassing both statutory privileges and privileges recognized by case law. United States v. Weber Aircraft Corp., 443 U.S. 340, 354 (1979). Among the privileges that fall under this exclusion is the "executive" or "deliberative process" privilege. Coastal States Gas Corp. v. Department of Energy, 617 F.2d 854, 862 (D.C. Cir. 1980) (Coastal States). The deliberative process privilege 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. NLRB v. Sears, Roebuck & Co., 421 U.S. 132 at 150 (1975) (Sears).

The purpose of Exemption 5 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). To qualify for protection under the deliberative process privilege of 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 at 866.

In his effort to overcome Exemption 5 protection for the documents he seeks, Rothschild raises two arguments on appeal. In the first argument, Rothschild claims that "the information I requested was denied based on its ?predecisional character.’ However, in May of this year the Department of Energy issued the ?United States Statement of Policy on the Strategic Petroleum Reserve," ... This determination constitutes an official agency position, which in turn mandates the release of the responsive requested documents." Appeal at 2.

Rothschild’s claim is based on a misunderstanding of the law. The predecisional nature of documents is not changed by the fact that the agency has subsequently made a final decision. Federal Open Mkt. Comm. v. Merrill, 443 U.S. 340, 360 (1979) (Merrill); May v. Department of the Air Force, 777 F.2d 1012, 1014-15 (5th Cir. 1985); Cuccaro v. Secretary of Labor, 770 F.2d 355, 357 (3rd Cir. 1985). As the Court explained in Merrill:

the purpose of the privilege for predecisional deliberations is to insure that a decision maker will receive the unimpeded advice of his associates. The theory is that if advice is revealed, associates may be reluctant to be candid and frank. It follows that documents shielded by executive privilege remain privileged even after the decision to which they pertain may have been effected, since disclosure at any time could inhibit the free flow of advice, including analysis, reports, and expression of opinion within the agency.

Merrill, 443 U.S. 359-60.

Rothschild’s second argument is essentially a policy argument. He contends that the responsive documents:

which form the basis for the Department’s ... final policy directive submitted to Congress, constitute the ?working law’ of the agency and should be held outside the protection of Exemption 5. Agencies cannot use the deliberative privilege to create a body of secret law by which they justify their decisions and actions.

Appeal at 2, citing Coastal States, 617 F.2d at 868.

Rothschild is correct in asserting that Exemption 5 cannot be used to shield documents that comprise the "secret law" of an agency. This argument, however, is inapplicable to the documents at issue in this case. Courts have defined "secret law" as "orders and interpretations which [the agency] actually applies to cases before it." Sterling Drug, Inc. v. FTC, 450 F.2d 698, 708 (D.C. Cir. 1971). Consequently, such documents are not truly predecisional, but "discuss established policies and decision." Coastal States, 617 F.2d at 868 (emphasis in the original).

We examined the documents withheld by the Department in this case. They consist of drafts of the final report, and memoranda and e- mail messages suggesting alternative ways of analyzing the data. There is no indication that these documents were applied to deciding cases, or to any use other than the preparation of the final report. On the contrary, we believe that providing protection for these documents is squarely in accord with the policy goals of Exemption 5: (1) to encourage frank, open, discussions on matters of policy between subordinates and superiors; and (2) to protect against public confusion that might result from disclosure of reasons and rationales that were not in fact ultimately the grounds for an agency’s action. Jordan v. Dep’t of Justice, 591 F.2d 753, 772-3.

As a final consideration, the Department’s regulations provide that it shall release material to the public if it is determined that federal law permits disclosure and it is in the public interest to do so, even if the material is exempt from release under the FOIA. 10 C.F.R. § 1004.1. Notwithstanding our finding that the Denying Official properly applied Exemption 5 to most of the requested documents, 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 the 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 Denying Official stated that:

Discretionary release of these documents is not in the public interest. The quality of agency decisions would be adversely affected if frank, written discussion of policy matters were inhibited by the knowledge that the content of such discussion might be made public... Furthermore, the documents do not reflect the final agency view on the subjects they discuss and it would therefore mislead the public if the documents were to be released."

After reviewing the documents, we agree with the analysis of the Denying Official. We find instead the documents to consist of "advisory opinions, recommendations, and deliberations comprising part of a process by which governmental decisions and policies are formulated," which Exemption 5 was designed to protect. Sears, 421 U.S. at 150. See Eva Glow Brownlow, 27 DOE ¶ 80,134 (1998).

For the reasons set forth above, we find that the Denying Official correctly determined that the responsive documents are exempt from mandatory disclosure pursuant to Exemption 5, and that release of the documents would not be in the public interest. We will therefore deny the appeal.

It Is Therefore Ordered That:

(1) The Freedom of Information Act Appeal filed by Edwin S. Rothschild, Case Number VFA-0423, is hereby denied.

(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 agency records are situated, or in the District of Columbia.

George B. Breznay

Director

Office of Hearings and Appeals

Date: July 28, 1998

(1) Rothschild did not question the withholding of documents under the attorney-client privilege. We will therefore not discuss the withholding of these documents in the present appeal.

(2) The Office of the Deputy Assistant Secretary for Strategic Petroleum Reserves sent a copy of the report to Rothschild.