Case No. VFA-0448, 27 DOE ¶ 80,168

October 30, 1998

DECISION AND ORDER

OF THE DEPARTMENT OF ENERGY

Appeal

Name of Petitioner: Hans M. Kristensen

Date of Filing:October 1, 1998

Case Number: VFA-0448

On October 1, 1998, Hans M. Kristensen (Kristensen) filed an Appeal from a determination issued on September 10, 1998, by the Department of Energy’s (DOE) FOIA and Privacy Act Division (FPAD). In that determination, FPAD responded to a request for information filed by Kristensen on August 1, 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.

The FOIA generally requires that federal agencies release documents 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). The DOE regulations further provide that the DOE release to the public a document exempt from mandatory disclosure under the FOIA whenever the DOE determines that disclosure is in the public interest and not contrary to other laws. 10 C.F.R. § 1004.1.

I. BACKGROUND

In its request, Kristensen sought, among other information, the most recently updated Stockpile Stewardship and Management Plan (the Green Book). On September 10, 1998, FPAD issued a determination releasing a copy of the Unclassified Second Annual Update of the Green Book to Kristensen. This document was a redacted version of the classified Green Book meant for widespread dissemination to the public. FPAD apparently assumed that by releasing the public version of the Green Book, it had fully responded to this portion of Kristensen’s request, since the determination letter did not indicate that portions of the Green Book were being withheld and did not advise Kristensen of his appeal rights.

On October 1, 1998, Kristensen filed the present Appeal contending that by releasing the unclassified version of the Green Book to him, FPAD was in effect withholding those portions of the Green Book that appear only in the original classified version of the Green Book.

II. ANALYSIS

We agree with Kristensen. By releasing only the public version of the Green Book FPAD withheld those portions of the document that were redacted from the original Green Book. The FOIA requires that the agency provide the requester with a written determination notifying the requester of the agency’s intentions to withhold responsive information under one or more of the nine statutory exemptions to the FOIA. 5 U.S.C. § 552(a)(6)(A)(i). Such a determination allows the requester to decide whether the agency’s response to its request was adequate and proper and provides this office with a record upon which to base its consideration of an administrative appeal.

It therefore follows that the agency has an obligation to ensure that its determination letters clearly indicate which information was withheld, and specify the exemption(s) under which information was withheld. Burlin McKinney, 25 DOE ¶ 80,205 at 80,767 (1996). Without an adequately informative determination letter, the requester and the review authority must speculate about the adequacy and appropriateness of the agency’s determinations. Id. Since the determination letter should have indicated that it was withholding portions of the Green Book and should have specifically indicated the exemptions under which that information is being withheld, we find that it is inadequate.

Accordingly, we shall remand this matter to the FPAD with instructions to issue a new determination letter. The new determination letter should specifically identify any information it is withholding from the requested document and indicate the exemption(s) under which that information is being withheld. The new determination letter should also explain why any withholdings under the exemption(s) are appropriate.

III. CONCLUSION

For the reasons set forth above, we are remanding this matter to the FOIA and Privacy Acts Division with instructions promptly to issue a new determination letter that complies with the requirements discussed above.

It Is Therefore Ordered That:

(1) The Appeal filed by Hans M. Kristensen on October 1, 1998, Case Number VFA-0448, is hereby granted and remanded to the FOIA and Privacy Acts Division for further processing in accordance with the instructions set forth above.

(2) This is a final Order of the Department of Energy of 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 where 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 30,1998