Case NO. VFA-0443, 27 DOE ¶ 80,164

October 9, 1998

DECISION AND ORDER

OF THE DEPARTMENT OF ENERGY

Appeal

Name of Appellant: Baker, Donelson, Bearman & Caldwell

Date of Filing: September 8, 1998

Case Number: VFA-0443

The law firm of Baker, Donelson, Bearman & Caldwell (Baker) files this Appeal under the Freedom of Information Act, 5 U.S.C. § 552, as implemented by the Department of Energy at 10 C.F.R. § 1004. As explained below, the Office of Hearings and Appeals (OHA) will grant the Appeal.

Baker filed a request for documents with the Department’s Golden Field Office (Golden) on April 28, 1998. In the request, Baker sought “all contracts entered into pursuant to Request for Proposal No. RAR-4-14061, ?Systems Engineering Approaches to Development of Advanced Residential Buildings.’”

This case represents the second time that Baker’s request for these documents has been before the OHA. On the first occasion, Baker appealed Golden’s initial response to its request. In its response, Golden released all the responsive documents it located in its files except one set of records. The records withheld by Golden concerned a contract between the National Renewable Energy Laboratory and Steven Winter Associates (Winter). Golden withheld the Winter documents under Exemption 4 of the Freedom of Information Act (FOIA), discussed below, and Baker appealed. We found that Golden’s determination did not provide a reasonably specific justification for its assertion of Exemption 4. We therefore remanded the matter to Golden for a new determination. Baker, Donelson, Bearman & Caldwell, Case No. VFA-0430 (August 20, 1998).

In its second determination letter to Baker, Golden again withheld the Winter documents under Exemption 4, but provided a new justification. Baker then filed the present appeal.

The FOIA generally requires that agency records be released to the public upon request. 5 U.S.C. § 552(a)(3). However, the FOIA provides nine exemptions for specific types of information that the agency may withhold at its discretion. 5 U.S.C. § 552(b)(1)-(b)(9); 10 C.F.R. § 1004.10(b)(1)-(b)(9). The exemption asserted in the present case, Exemption 4, permits an agency to withhold from release “trade secrets and commercial or financial information obtained from a person and privileged or confidential.” 5 U.S.C. § 552(b)(4); 10 C.F.R. § 1004.10(b)(4).

In its second determination letter, Golden claims that the withheld documents consist of “privileged or confidential commercial or financial information.” Based on this assertion, Golden withheld the Winter documents in their entirety. However, even when the requested material contains matter that may be withheld, the FOIA requires that "any reasonably segregable portion of a record shall be provided to any person requesting such record after deletion of the portions which are exempt under this subsection." 5 U.S.C. § 552(b).

Exemption 4 rarely permits the withholding of documents in their entirety. Tri-State Drilling, 26 DOE ¶ 80,202 (1997). For example, the mere fact that the contents of a document may be useful to competitors in future bids is not sufficient ground to withhold the material unless the material is unique. Morgan, Lewis & Bockius, 20 DOE ¶ 80,165 (1990). A finding that material is “unique” under FOIA standards has generally been limited to cases where the material consists of specific technical processes that are the property of, or have been developed by, the submitter. Government Sales Consultants, 13 DOE ¶ 80,115 (1985).

On the other hand, information such as the total price of a contract, after the contract has been awarded, does not reveal the submitter's bidding strategy; thus, it cannot normally be withheld under Exemption 4. Covington & Burling, 20 DOE ¶ 80,124 (1990). In addition, we have found that contractual items such as rental car charges, airfares, and postage are not "unique methods and procedures,” and cannot generally be withheld under Exemption 4. Greenpeace USA, 26 DOE ¶ 80,219 (1997).

We have reviewed a sample of the Winter documents. We cannot find that all of the information contained in the documents, on its face, meets the requirements for withholding under Exemption 4. Furthermore, Golden has provided no reasons in its determination letter that would establish that all the material can be withheld under Exemption 4.

Consequently, on remand, Golden must conduct an additional review of any information in the Winter documents that it seeks to withhold from Baker, so that it can determine whether the documents contain information that can be segregated and released to the public. The Authorizing Official must review each category of material withheld and determine whether its release could cause the submitter substantial competitive harm or impair the government’s ability to obtain similar information in the future. International- Hough Division/Dresser, 12 DOE ¶ 80,140 (1985). Any determination that Winter would suffer substantial competitive harm, or that the government’s ability to obtain would be impaired, must be supported by well-founded reasons presented in a new determination letter to Baker. See W.N. Gates Co., 10 DOE ¶ 80,111 (1982).

It Is Therefore Ordered That:

(1) The Freedom of Information Act Appeal filed by Baker, Donelson, Bearman & Caldwell, Case Number VFA-0443, is hereby granted as specified in Paragraph (2) below.

(2) This matter is hereby remanded to Golden Field Office, which shall promptly 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 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:October 9, 1998