Case No. VFA-0444, 27 DOE ¶ 80,165

October 9, 1998

DECISION AND ORDER

OF THE DEPARTMENT OF ENERGY

Appeal

Name of Petitioner: Missouri River Energy Services

Date of Filing: September 9, 1998

Case Number: VFA-0444

On September 9, 1998, Missouri River Energy Services (Missouri) filed an Appeal from a determination issued to it on August 10, 1998, by the Department of Energy’s Western Area Power Administration (WAPA). That determination concerned a request for information that Missouri submitted pursuant to the Freedom of Information Act (FOIA), 5 U.S.C. § 552, as implemented by the DOE in 10 C.F.R. Part 1004. If the present Appeal were granted, WAPA would be ordered to release the requested information or issue a new determination.

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 which may be withheld at the discretion of an agency. 5 U.S.C. § 552(b); 10 C.F.R. § 1004.10(b). The DOE regulations further provide that a document exempt from mandatory disclosure under the FOIA shall nonetheless be released to the public whenever the DOE determines that disclosure is in the public interest. 10 C.F.R. § 1004.1.

I. Background

On August 28, 1997, Missouri filed an extensive FOIA request seeking copies of several documents relating to transmission rate analyses conducted by WAPA’s Upper Great Plains Regional Office. In its August 10, 1998 determination letter, WAPA identified a number of documents responsive to Missouri’s request. Specifically, WAPA identified one box of responsive documents and 20 computer disks. However, WAPA withheld 56 documents in their entirety pursuant to FOIA Exemptions 4 and 5. See Determination Letter at 1.

On September 9, 1998, Missouri filed the present Appeal with the Office of Hearings and Appeals (OHA). In its Appeal, Missouri challenges WAPA’s determination and asserts that WAPA failed to: (1) produce an index of the documents it provided and indicate whether it segregated non-exempt material from those documents; (2) specifically identify the exemption applicable to each withheld document stated in the determination; (3) provide an adequate justification for applying Exemptions 4 and 5 to each of the withheld documents; and (4) provide sufficient information in its determination to permit Missouri to make a meaningful appeal. See Appeal Letter at 1 and 2.

II. Analysis

In its Appeal, Missouri contends, inter alia, that WAPA has failed to identify the specific exemption applicable to each withheld document identified in the Response and failed to provide an adequate justification for applying Exemptions 4 and 5 to the withheld documents. It is well established that a FOIA determination must have reasonably specific justifications for withholding all or parts of documents responsive to a FOIA request. See, e.g., Wisconsin Project on Nuclear Arms Control, 22 DOE ¶ 80,109 at 80,517 (1992); Davis Wright & Jones, 19 DOE ¶ 80,104 at 80,509 (1989) (and cases cited therein). Conclusory and generalized claims by agency officials that material is exempt from disclosure are not acceptable. We strongly adhere to this position so that the requesting party may prepare an adequate appeal, and so that this Office may make an effective review of the initial agency determination. Thus, “when an agency seeks to withhold information it must provide a relatively detailed justification, specifically identifying the reasons why a particular exemption is relevant and correlating those claims with the particular part of a withheld document to which they apply.” Arnold & Porter, 12 DOE ¶ 80,108 at 80,528 (1984). A sufficiently detailed explanation should indicate the issues addressed in a document and the functions of the document which render it exempt from mandatory disclosure. Coastal States Gas Corp. v. DOE, 617 F.2d 854, 861 (D.C. Cir. 1980); Vaughn v. Rosen, 523 F.2d 1136, 1145 (D.C. Cir. 1975); Arnold & Porter, 12 DOE at 80,528. These requirements are reflected in the DOE regulations, which require that a response to a properly submitted FOIA request include:

a statement of the reason for the denial, containing as applicable . . . (i) [a] reference to the specific exemption authorizing the withholding of the record, and to the extent consistent with the purposes of the exemption, a brief explanation of how the exemption applies to the record withheld, and a statement of why a discretionary release is not appropriate.

10 C.F.R. § 1004.7(b)(1)(i).

In past cases, we have held that a general discussion of the policies underlying the various exemptions that fails to explain why the specific documents withheld fall within the claimed exemption is inadequate. Arnold & Porter, 12 DOE at 80,528 (and cases cited therein). Instead, we have required the agency to support its application of an exemption providing the type of justification required by Arnold & Porter. In this case we find that WAPA’s Determination Letter does not permit either an adequate appeal or an effective review of its basis for withholding documents.

A. Adequacy of the Exemption 4 Justification

Exemption 4 exempts from mandatory public disclosure “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 order to qualify under Exemption 4, a document must contain either: (1) trade secrets or (2) information that is “commercial” or “financial,” “obtained from a person,” and “privileged or confidential.” National Parks & Conservation Ass’n v. Morton, 498 F.2d 765 (D.C. Cir. 1974) (National Parks).

In National Parks, the United States Court of Appeals for the District of Columbia Circuit found that commercial or financial information submitted to the federal government involuntarily is “confidential” for purposes of Exemption 4 if disclosure of the information is likely either (1) to impair the government’s ability to obtain necessary information in the future or (2) to cause substantial harm to the competitive position of the person from whom the government obtained the information. Id. at 770; Critical Mass Energy Project v. NRC, 975 F.2d 871, 879 (D.C. Cir. 1992), cert. denied, 113 S. Ct. 1579 (1993). By contrast, information a submitter provides to an agency voluntarily is “confidential” if “it is of a kind that the provider would not customarily make available to the public.” Critical Mass, 975 F.2d at 879. While it appears in WAPA’s Determination Letter that it applied the National Parks test, it is still unclear whether the withheld documents were in fact involuntarily submitted.

Therefore, WAPA’s Determination Letter does not meet the threshold tests of Exemption 4. Moreover, the Determination Letter does not specifically indicate which particular documents are withheld under Exemption 4. In addition, even if WAPA was correct in applying the National Parks test, it did not provide a sufficient explanation of why release of the information it withheld would cause competitive harm to the submitters. Rather, the letter merely contains a general statement that competitive harm would occur. Consequently, we hold that WAPA’s blanket justification in this case is too general to support the invocation of Exemption 4.

B. Adequacy of Exemption 5 Justification

WAPA, in its Determination Letter, also seeks to invoke Exemption 5 to justify withholding a number of documents. Exemption 5 of the FOIA exempts from mandatory disclosure documents which 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). 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 Corporation v. Department of Energy, 617 F.2d 854, 862 (D.C. Cir. 1980) (Coastal States). In the present case, the Determination Letter fails to disclose which documents are specifically withheld under Exemption 5 and how the applicable privilege specifically applies to the withheld documents. Consequently, WAPA’s blanket justification is also too general to support the invocation of Exemption 5.

III. Conclusion

As discussed above, we have concluded that WAPA has failed to specifically identify the exemption applicable to each withheld document stated in its Determination Letter and has failed to provide an adequate justification for withholding documents under FOIA Exemptions 4 and 5. Accordingly, we will remand this Appeal to WAPA to issue another, more detailed Determination Letter that is consistent with the standards we have outlined above. (1) Specifically, for each document withheld in full or in part, WAPA should include a statement of the reason for denial, a brief explanation of how the exemption applies to the record withheld, and a statement of why discretionary release is not appropriate. See 10 C.F.R. § 1004.7(b)(1). WAPA should further review each document for the possible segregation and release of non-exempt material. In making its determination, WAPA may group similar documents together and provide one justification for each group of documents.

It Is Therefore Ordered That:

(1) The Appeal filed by Missouri River Energy Services on September 9, 1998, Case Number VFA- 0444, is hereby granted in part as set forth below in Paragraph (2) and denied in all other respects.

(2) This matter is hereby remanded to the Western Area Power Administration for further processing in accordance with the instructions set forth above.

(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: October 9, 1998

(1)As noted earlier, Missouri contends that it should 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 why that exemption is applicable, or in the alternative a similar document describing each withholding. See Appeal Letter at 3. On previous occasions, we have stated that, although such an index may be required when an agency 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). At the administrative levels, determinations need only include a general description of the withheld material, and a statement of the reason for withholding each document. Therefore, we reject Missouri’s request for a Vaughn index. However, as stated above, in its new determination WAPA should provide Missouri with a general description of all withheld information, identify the exemption applicable to each withheld document (or group) and the reasons for any withholdings.