Case No. VFA-0438, 27 DOE ¶ 80,162

September 10, 1998

DECISION AND ORDER

OF THE DEPARTMENT OF ENERGY

Appeal

Name of Petitioner: William Payne

Date of Filing: August 13, 1998

Case Number: VFA-0438

This decision concerns an Appeal filed on August 13, 1998 by William Payne (Appellant). The Appellant submitted a request for information to the Department of Energy's (DOE) Office of Inspector General (IG) seeking copies of "all investigative reports authored at DOE in response to [the Appellant's] allegation that NSA willfully and knowingly attempted to sabotage DOE/Sandia cryptographic projects." This request was submitted 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 July 6, 1998, the IG issued a determination in response to that request, redacting the names of individuals and other identifying information from two of the five documents it provided to the Appellant. * On August 13, 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 or 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, 489 U.S. 769, 773 (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 an Office of Inspector General investigation, which in this case includes sources of information, 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). Therefore, we find that release of the individuals' identities would result in significant invasions of privacy.

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's 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 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).

The Appellant also requests that he be provided with a Vaughn index, i.e. an index identifying each responsive document, the exemption under which it is being withheld and an explanation of why that exemption is applicable. See Vaughn v. Rosen, 484 F.2d 820 (D.C. Cir. 1980). On previous occasions, we have stated that, although such an index may be required of the agency when it is in litigation with a FOIA requester, this degree of specificity is not required at the administrative stages of a FOIA request. See, e.g., Rockwell International, 21 DOE 80,105 at 80,527 (1991); Natural Resources Defense Council, 20 DOE 80,145 at 80,627 (1990). At the administrative level, determinations need only include a general description of the withheld material and a statement of the reason for the withholding. Therefore, we reject the Appellant's request for a Vaughn index.

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 William Payne on August 13, 1998, Case Number VFA-0438, 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: September 19, 1998