Case No. VFA-0424, 27 DOE ¶ 80,151

July 31, 1998

DECISION AND ORDER

OF THE DEPARTMENT OF ENERGY

Appeal

Name of Petitioner:Charles W. Hemingway

Date of Filing:July 2, 1998

Case Number: VFA-0424

On July 2, 1998, Charles W. Hemingway appealed a determination that the Office of the General Counsel (OGC) of the Department of Energy (DOE) issued on June 30, 1998, under the Freedom of Information Act (FOIA), 5 U.S.C. § 552, as implemented by the DOE in 10 C.F.R. Part 1004. In this Appeal, Mr. Hemingway requests that the Office of Hearings and Appeals (OHA) order OGC to release information withheld pursuant to Exemption 6 of the FOIA. For the reasons detailed below, we will deny this Appeal.

The FOIA requires that documents held by federal agencies generally be released to the public upon request. The FOIA, however, lists nine exemptions that set forth the types of information that may be withheld at the discretion of an agency. 5 U.S.C. § 552(b); 10 C.F.R. §1004.10(b). DOE regulations further provide that a document exempt from disclosure under the FOIA shall nonetheless be released to the public whenever DOE determines that disclosure is in the public interest. 10 C.F.R. § 1004.1.

BACKGROUND

This Appeal arises from Mr. Hemingway’s request for copies of the financial disclosure reports (Forms SF 278), including attachments, filed by Corlis M. Moody, a DOE official. In addition to Ms. Moody’s Forms SF 278, Mr. Hemingway requested copies of documents, including opinions or statements rendered by agency ethics counsel, as well as correspondence between agency personnel and Ms. Moody, concerning the financial disclosure reports.

On June 30, 1998, Ralph Goldenberg, the Assistant General Counsel for General Law, responded to Mr. Hemingway's request for documents by issuing a determination under the FOIA. The requested documents were attached to the determination. Mr. Goldenberg also indicated that, pursuant to Exemption 6 of the FOIA, 5 U.S.C. § 552(b)(6), Ms. Moody's home address, personal brokerage account number, and social security number had been redacted from one of the documents. Mr. Goldenberg indicated that this information had been withheld because:

[d]isclosure of the withheld information would constitute an invasion of the personal privacy of the individual because it could lead to unwanted communications and attention that would be intrusions into her personal life. Moreover, disclosure of this information will not reveal any aspect about the operations or activities of the Government.

On July 2, 1998, Mr. Hemingway filed this Appeal.

ANALYSIS

In his Appeal, Mr. Hemingway contends that the redacted information was wrongfully withheld under Exemption 6 of the FOIA because he made his request for disclosure under the Ethics in Government Act (EGA), 5 U.S.C. App. 4 §§ 101 et seq., and the FOIA exemptions are inapplicable to disclosures required by the EGA.(1) Mr. Hemingway also claims that DOE waived the right to withhold Ms. Moody's social security number under Exemption 6 because DOE had previously released this information in response to an appeal before the Merit Systems Protection Board (MSPB).(2) For the reasons detailed below, we find that Mr. Hemingway’s arguments are unpersuasive.

THE SCOPE OF OHA’S JURISDICTION

OHA lacks jurisdiction to determine issues that arise under the EGA. OHA has held that jurisdictional regulations must be explicit and narrowly construed. See Suffolk County, 17 DOE ¶ 80,111 at 80,524 (1988) (dismissing FOIA appeal because OHA lacks jurisdiction of matters not explicitly set forth in jurisdictional regulation); John H. Hnatio, 13 DOE ¶ 80,119 at 80,566 (1985) (dismissing FOIA appeal based on narrow construction of jurisdictional regulation); Tulsa Tribune, 11 DOE ¶ 80,161 at 80,741 (1984) (without explicit statutory or regulatory provision, no administrative remedy for agency's non-compliance with a timeliness requirement).

Neither Congress nor any administrative agency has empowered OHA to adjudicate matters arising under the EGA. Thus, in the absence of an explicit grant of authority, OHA lacks jurisdiction to adjudicate such disputes. Accordingly, we dismiss that portion of Mr. Hemingway’s appeal that is based on DOE’s failure to release information under the EGA.

EXEMPTION 6 OF THE FOIA

We also find that the Ms. Moody’s social security number, personal brokerage account number, and home address were properly redacted under Exemption 6 of the FOIA. 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) (Reporters Committee); Department of the Air Force v. Rose, 425 U.S. 352, 372 (1976) (Rose); Harold H. Johnson, 21 DOE ¶ 80,148 at 80,640 (1991).

First, we believe that the document containing the redacted information meets the Exemption 6 threshold test as of being within the category of "personnel and medical files and similar files." The Supreme Court has taken an expansive view of what falls within this phrase. The Court has made clear that Exemption 6 extends to "detailed Government records on an individual that 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). Here, the document at issue is a detailed government record that can be identified as applying to a named DOE official. This easily falls within the Supreme Court's Exemption 6 threshold definition. See Rose, 425 U.S. at 376-80.

In applying the balancing portion of the Exemption 6 test, we must examine the types of information redacted, identify any privacy interest involved, and weigh that against any public interest in the material as defined by the Supreme Court. We first find that Ms. Moody has a privacy interest in her social security number, personal brokerage account number, and home address. See Department of Defense v. Federal Labor Relations Auth., 510 U.S. 487, 497-501 (1994) (home addresses); Barvick v. Cisneros, 941 F. Supp. 1015 (D. Kan. 1996) (home addresses and telephone numbers, dates of birth, maiden names, life insurance and annuity information); Oliva v. HUD, 756 F. Supp. 105 (E.D.N.Y. 1991) (social security numbers).

As noted above, once we identify a privacy interest, we must then determine whether there is a FOIA- defined public interest in release of the withheld material. In Reporters Committee, the Court took an exceptionally narrow view of what is in the public interest for the purposes of the FOIA. The only relevant public interest, in the Court's view, is the extent to which release of information would contribute "'significantly to public understanding of the operations or activities of the government.'" Reporters Committee, 489 U.S. at 775 (quoting 5 U.S.C. § 552(a)(4)(A)(iii)). Here, release of the redacted information would not in any way "shed light on the conduct of any Government agency or official," Reporters Committee, 489 U.S. at 773, or the public's understanding of what the government has done and is doing. Ms. Moody’s social security number, personal account number, and home address do not provide any information that may be used to determine the propriety of her official conduct. Because OGC released the entire substance of the requested documents, we find that no further benefit would accrue to the public interest, under the Supreme Court's definition, by release of the redacted information. Reporters Committee, 489 U.S. at 766 n.18.

The Exemption 6 balancing test presupposes that there is some public interest to balance. Thus, where there is no public interest to balance, as here, the privacy interest in non-disclosure, however small, must prevail. Maynard v. Central Intelligence Agency, 986 F.2d 547, 566 n.21 (1st Cir. 1993); Federal Labor Relations Auth. v. Department of Defense, 984 F.2d 370, 374 (10th Cir. 1993). Accordingly, we find that Ms. Moody’s privacy interest in the redacted information outweighs the lack of a FOIA-defined public interest, and that this information was properly withheld from disclosure.

The Appellant contends that DOE waived its right to claim that Ms. Moody’s social security number may be withheld from disclosure under Exemption 6 because it released this information in response to an appeal filed with the MSPB. The Supreme Court rejected a similar argument in Reporters Committee, when it held that individuals have a privacy interest in the non-disclosure of their arrest and conviction records ("rap-sheets"), although most of the rap-sheet information is a matter of public record. The Court based this conclusion on the "practical obscurity" of the arrest and conviction information that is available to the public. 489 U.S. at 762, 764, 780. Similarly, because of the "practical obscurity" of the information contained in the MSPB files no waiver of privacy interest occurred, and Ms. Moody continues to have a privacy interest in the non-disclosure of her social security number. See also Federal Labor Relations Auth., 510 U.S. at 500 (privacy interest in non- release of information does not dissolve because the information may be available in another form to the public); L & C Marine Transp. Ltd. v. United States, 740 F.2d 919, 922 (11th Cir. 1984) (privacy interest not lost because information may be discovered through other means); Tenaska Washington Partners II, L.P., 25 DOE ¶ 80,212 (1996) (inadvertent release of personal information by federal agency does not destroy privacy rights).

It Is Therefore Ordered That:

(1) The portion of the Appeal filed by Charles W. Hemingway on July 2, 1998, that is based on DOE’s failure to release information under the Ethics in Government Act is hereby dismissed, and the remainder of the Appeal 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: July 31, 1998

(1)The EGA requires that financial disclosure reports (Forms SF 278) submitted by certain high- level government officials be released to the public. 5 U.S.C. App. 4 § 105. See also 5 C.F.R. § 2634.603. Gregg Burgess, an OGC staff attorney, told us that the redacted document was not part of a SF 278, but was submitted by Ms. Moody as proof that she had sold certain stock. He stated that this document was released under the FOIA because OGC concluded that this document did not have to be disclosed under the EGA.

(2)Additionally, Mr. Hemingway alleges that DOE improperly redacted information from Ms. Moody’s 1997 Form SF 278 without explanation. See Mead Data Central v. Department of the Air Force, 566 F.2d 242 (D.C. Cir. 1977) (FOIA requires the agency to provide a reasonably specific justification for withholding documents or portions of documents). However, after investigation, we find that OGC did not improperly redact information from this document. Gregg Burgess, the OGC staff attorney, informed us that he redacted the information at issue on July 23, 1997, when he was conducting a substantive review of Ms. Moody’s Form SF 278 to determine compliance with the EGA. In accordance with the general practice at OGC, the information was redacted because Ms. Moody was not required to report it on the Form SF 278. Accordingly, we conclude that OGC redacted this information in the ordinary course of business, and that OGC did not have an unredacted copy of this document when it received Mr. Hemingway’s request for documents.