Case No. VFA-0459, 27 DOE ¶ 80,181

January 19, 1999

DECISION AND ORDER

OF THE DEPARTMENT OF ENERGY

Appeal

Name of Petitioner: Matthew Cherney, M.D.

Date of Filing: December 9, 1998

Case Number: VFA-0459

On December 9, 1998, Matthew Cherney, M.D., filed an Appeal from determinations issued on July 24, 1998, and September 18, 1998, by the Office of Utility Technologies, Energy Efficiency and Renewable Energy (DOE/EE). The determinations responded to a request for information filed under the Freedom of Information Act (FOIA), 5 U.S.C. § 552, as implemented by the Department of Energy (DOE) in 10 C.F.R. Part 1004.

The FOIA generally requires that documents held by the federal government be released to the public upon request. 5 U.S.C. § 552(a)(6)(A). However, Congress has provided nine exemptions to the FOIA which set forth the types of information agencies are not required to release. 5 U.S.C. § 552(a)(6)(B). Under the DOE’s regulations, a document exempt from disclosure under the FOIA shall nonetheless be released to the public whenever the DOE determines that disclosure is not contrary to federal law and in the public interest. 10 C.F.R. § 1004.1.

I. Background

Dr. Cherney requested from the DOE all documents related to an unsolicited proposal he had submitted to the DOE. The proposal concerned a system for collecting solar energy invented by Dr. Cherney. Dr. Cherney's request specified the following categories of documents relating to the proposal:

(1) All documents received by DOE and given consideration;

(2) All written comments from all evaluators (and any calculations): Dr. Allan Hoffman, Dr. Joseph Galdo, Jeff Muhs, Slo Rajic, Marc Simpson, and Anthony Schaffhauser;

(3) All comments from any other evaluators;

(4) Transcripts of any oral comments made by any evaluator;

(5) Any other documents in the file; and

(6) Any electronic communications or telephone recordings.

On July 24, 1998, DOE/EE issued a partial response to the Appellant's request in which it released copies of 26 responsive documents. Letter from Allan R. Hoffman, Acting Deputy Assistant Secretary, Office of Utility Technologies, Energy Efficiency and Renewable Energy, to Dr. Matthew Cherney, Sunbear Systems (July 24, 1998). DOE/EE issued another partial response on September 18, 1998. In that determination, DOE/EE released an additional 35 documents in their entirety, released 4 other documents with information redacted from them, and identified 31 documents that it was withholding in their entirety. DOE/EE stated that the information it was withholding was exempt from disclosure under Exemption 5 of the FOIA. Letter from Allan R. Hoffman, Acting Deputy Assistant Secretary, Office of Utility Technologies, Energy Efficiency and Renewable Energy, to Matthew Cherney, M.D., Sunbear Systems (September 18, 1998).(1) In the latter determination, DOE/EE stated that it would issue a final response to Dr. Cherney's request after it completes its review of 35 remaining responsive documents. Id. To date, DOE/EE has not issued a final response to the request.

Exemption 5 of the FOIA exempts from mandatory disclosure documents that are “inter-agency memoranda 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 three principal privileges that fall under this definition of exclusion are the attorney-client privilege, the attorney work product privilege, and the “deliberative process” privilege. Coastal States Gas Corp. v. Department of Energy, 617 F.2d 854, 862 (D.C. Cir. 1980) (Coastal States). In the present case, DOE/EE relied upon the deliberative process privilege of Exemption 5.

The deliberative process privilege shields from public disclosure records reflecting the predecisional, consultative process of an agency. Benedetto Enterprises, Inc., 19 DOE ¶ 80,106 (1989); Darci L. Rock, 13 DOE ¶ 80,102 (1985). Predecisional materials are not exempt merely because they are prepared prior to a final action, policy, or interpretation. These materials must be a part of the agency's deliberative process by which decisions are made. Vaughn v. Rosen, 523 F.2d 1136, 1144 (D.C. Cir. 1975). This privilege was developed primarily to promote frank and independent discussion among those responsible for making government decisions. EPA v. Mink, 410 U.S. 73, 87 (1973) (quoting Kaiser Aluminum & Chem. Corp. v. United States, 157 F. Supp. 939 (Cl. Ct. 1958)). The ultimate purpose of the exemption is to protect the quality of agency decisions. NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 151 (1975).

DOE/EE explained in its determination that the documents withheld were

created during agency consideration of your proposal and were prepared in order to assist the agency decisionmaker in arriving at his or her decision on your proposal. They reflect the analysis, advisory opinions, deliberations and recommendations of subordinates that are part of the deliberative process leading to a final decision and comprise part of the process by which government decisions were considered. Thus these documents are prior to the adoption of a final decision and are part of a deliberative process in that they make recommendations or express opinions to decision makers. These documents are subject to further review and analysis, they discuss possible courses of action, and several versions could be used in the decision making process. They do not represent the final agency decision.

Letter from Allan R. Hoffman, Acting Deputy Assistant Secretary, Office of Utility Technologies, Energy Efficiency and Renewable Energy, to Matthew Cherney, M.D., Sunbear Systems (September 18, 1998) at 2.

In his Appeal, Dr. Cherney asks that we order DOE/EE to release to him all responsive documents. Letter from Matthew Cherney, M.D., Sunbear Systems, to Director, Office of Hearings and Appeals (OHA) (November 17, 1998) (Appeal Letter 1). First, the Appellant contends that the 35 documents currently being reviewed by DOE/EE “fit no conceivable exemption” and should be released. Id. at 1. Regarding the documents that DOE/EE has withheld under FOIA Exemption 5, Dr. Cherney argues that material withheld under this exemption should be released because it “is, by definition, available in a lawsuit anyway.” Id. The appellant also questions when an “actual decision” was made on his proposal. Id. at 2. He notes that information he has indicates that a decision was made “circa January 9" of 1998, and that therefore any documents created after that date are not “predecisional.” Id.

In addition, Dr. Cherney states in some detail why he is seeking the documents in question. Appeal Letter 1; Letter from Matthew Cherney, M.D., Sunbear Systems, to Steven J. Goering, OHA (November 30, 1998) (Appeal Letter 2). Not surprisingly, the Appellant would like to have a complete understanding of why the DOE did not accept his proposal. Thus, he wants to know why those who reviewed his proposal arrived at their conclusions and what standards were used in the review, so that he and his company can “respond intelligently.” Appeal Letter 2 at 1-2; Appeal Letter 1 at 1. He also wants to find out whether the DOE's decision was based on scientific criteria or “legal/political” reasons. Appeal Letter 2 at 5; Addendum to Appeal Letter 1 at 2. Finally, the Appellant contends that the documents being withheld will show that his company proceeded in “maximal good faith.” Addendum to Appeal Letter 1 at 2.

II. Analysis

A. Documents Currently Being Reviewed by DOE/EE

As noted above, DOE/EE is currently reviewing 35 remaining documents responsive to Dr. Cherney's request, and thus has not yet issued a final determination in response to the request. Section 1004.8(a) of the DOE Regulations states that the OHA has jurisdiction to consider Freedom of Information Act Appeals “[w]hen the Authorizing Officer has denied a request for records in whole or in part or has responded that there are no documents responsive to the request . . . or when the Freedom of Information Officer has denied a request for waiver of fees.” 10 C.F.R. § 1004.8(a). Because DOE/EE has not yet issued a determination with respect to the remaining responsive documents, the DOE has not denied the Appellant’s request as to these documents. Thus, there is no determination with respect to the remaining documents that can appealed to this office. After DOE/EE has issued a determination regarding those documents, Dr. Cherney will have the right to file an appeal of any withholding. In addition, after receiving the DOE/EE's final determination in response to his request, Dr. Cherney can appeal the adequacy of the DOE/EE's search for responsive documents.

The Appellant has asked whether we nonetheless could at this point consider the lack of a final determination from DOE/EE a constructive denial of his request that could be appealed to the OHA. Memorandum of telephone conversation between Matthew Cherney, M.D., and Steven Goering, OHA (December 22, 1998). We have previously considered an argument that a request to which there has been no response constitutes a constructive denial appealable to the OHA. We held there, as we do here, that we have “no jurisdiction to consider an Appeal until a determination is issued by a DOE office.” U.S. Solar Roof, 26 DOE ¶ 80,102 at 80,505 (1996). The Appellant, however, does have the right to file a complaint, based on the DOE's failure to issue a final response to his request within the prescribed time period, with the appropriate federal district court. See 5 U.S.C. § 552(a)(4)(B), 6(C).

B. Documents Withheld by DOE/EE Under FOIA Exemption 5

Before we address specifically the documents withheld by DOE/EE, we will consider generally three points raised by Dr. Cherney in his Appeal. First, we note above that the Appellant has provided a number of reasons why he seeks the documents he has requested. However, a requester need not justify or explain why he needs documents in order to obtain them under the FOIA. Regardless of the identity or particular needs of a requester, the FOIA presumptively mandates that documents requested be released. 5 U.S.C. § 552(a)(6)(A). Only if information is specifically exempt from disclosure may an agency withhold documents in response to a FOIA request. 5 U.S.C. § 552(a)(6)(B). In addition, as we discuss below, the DOE will discretionarily release information exempt from the FOIA if disclosure is not contrary to federal law and is in the public interest. However, the particular interest of a requester in the information he seeks has no bearing on our determination as to whether information should be released under the FOIA or DOE regulations.

Second, Dr. Cherney contends that even if the information withheld is protected by Exemption 5, it should be released because it “is, by definition, available in a lawsuit anyway.” Appeal Letter 1 at 1. This contention is not correct. To the contrary, FOIA Exemption 5 protects “inter-agency or intra-agency memorandums or letters which would not be available by law to a party . . . in litigation with the agency.” 5 U.S.C. § 552(b)(5) (emphasis added).

Third, the Appellant argues that, although he received a letter from DOE dated March 23, 1998, stating that the DOE would not fund his proposal, there is information indicating that the actual decision on his proposal was made prior to that date. The date of the agency decision is significant in that it can help determine whether materials were prepared prior to a final action, policy, or interpretation, and therefore are predecisional. We have reviewed the documents withheld from the appellant and the letters sent to him on March 23, 1998, and we conclude that none of these documents evidences an agency decision on Dr. Cherney's proposal prior to March 23, 1998. Though the materials indicate that certain technical evaluations of the proposal were completed prior to this date, it is clear that the only DOE official empowered to decide whether the agency would fund the proposal was the Acting Deputy Assistant Secretary, Office of Utility Technologies, Energy Efficiency and Renewable Energy. As late as March 23, 1998, the date of this DOE official's letter to Dr. Cherney, technical evaluations, comments, and recommendations regarding the proposal were provided to the official by and on behalf of his subordinates, and these recommendations are cited by the DOE official in his letter to the Appellant. Thus, we conclude that materials prepared on or prior to March 23, 1998, are predecisional.

1. Documents Responsive to Item 1 of the Appellant's Request

In its September 18, 1998 determination, DOE/EE withheld three documents in part under FOIA Exemption 5 in response to the Appellant's request for “all documents received by DOE and given consideration” with regard to his proposal. The documents from which information was withheld were submitted to the DOE by the Appellant's company as part of its proposal. Withheld from the document are handwritten notes of DOE personnel who were evaluating the proposal. We find that these notations clearly reflect the mental processes of the evaluators prior to the agency's decision on the Appellant's proposal, and thus are precisely the kind of information intended to be shielded by Exemption 5. See Montrose Chem. Corp. v. Train, 491 F.2d 63, 70 (D.C. Cir. 1974) (“[T]he purpose of exemption 5 is not simply to encourage frank intra-agency discussion of policy, but also to ensure that the mental processes of decision-makers are not subject to public scrutiny.”).

2. Documents Responsive to Item 2 of the Appellant's Request

In response to Dr. Cherney's request for “[a]ll written comments from all evaluators (and any calculations),” DOE/EE withheld one document in part and 13 other documents in their entirety under Exemption 5. Each of these documents contains the analysis of the agency personnel who evaluated the Appellant's proposal. This analysis was obviously done as part of the agency's deliberative process by which it ultimately decided whether to fund the proposal. Thus, DOE/EE properly withheld material contained in these documents.

However, the FOIA requires that "[a]ny reasonably segregable portion of a record shall be provided to any person requesting such record after deletion of the portions which are exempt . . . ." 5 U.S.C. § 552(b) (1982). See EPA v. Mink, 410 U.S. 73, 89, 91 (1973); Mead Data Central, Inc. v. Air Force, 556 F.2d 242, 259-62 (D.C. Cir. 1977), cert. denied, 436 U.S. 927 (1978); Casson, Calligaro & Mutryn, 10 DOE ¶ 80,137 at 80,615 (1983). Segregation and release of non-exempt material is not necessary where it is "inextricably intertwined" with the exempt material so that release of the non-exempt material would "compromise" the withheld material, or where the amount of non-exempt material is small and so interspersed with exempt material that it would pose "an inordinate burden" to segregate, Lead Indus. Ass'n v. OSHA, 610 F.2d 70, 83-86 (2d Cir. 1979). We therefore must determine whether DOE/EE should segregate and release any of the material it withheld from the Appellant.

We have reviewed the documents in question and find that non-exempt material in certain of the documents can be released to Dr. Cherney without compromising the material withheld or imposing an inordinate burden on DOE/EE. First, in the one-page memorandum from A.C. Schaffhauser withheld in its entirety and labeled “#7,” the sentences that are deliberative in nature can easily be redacted from the document. Similar redactions can be made in the one-page memorandum addressed to T. Schaffhauser labeled “#8." The remaining portions of these documents may not be withheld from the Appellant under FOIA Exemption 5. With respect to the other documents withheld in response to this item of Dr. Cherney's request, we find that any non-exempt information in the documents is so inextricably intertwined with the exempt material that release of the non-exempt material would necessarily compromise the withheld material.

3. Documents Responsive to Item 5 of the Appellant's Request

DOE/EE withheld one document in its entirety in response to the Dr. Cherney's request for “[a]ny other documents in the file.” This document is a memorandum of a telephone conversation authored by a DOE employee. We find nothing in this memorandum that discusses the substance or merits of the Appellant's proposal and therefore do not agree with DOE/EE that it reflects the agency's deliberative process by which the decision with regard to the proposal was made. Vaughn v. Rosen, 523 F.2d 1136, 1143-44 (D.C. Cir. 1975) (withheld material must be "a direct part of the deliberative process in that it makes recommendations or expresses opinions on legal or policy matters"). Accordingly, this document may not be withheld from the Appellant under Exemption 5.

4. Documents Responsive to Item 6 of the Appellant's Request

We reach a similar opinion regarding the 17 documents withheld in their entirety from the Appellant in response to his request for “[a]ny electronic communications or telephone recordings.” While small portions of some of these electronic mail messages reflect the opinions of DOE personnel on the merits of Dr. Cherney's proposal, these memoranda by and large discuss the status of DOE's process of reviewing the proposal. There are cases where revealing the status of the agency's decision-making process has been found to necessarily reveal intra-agency or inter-agency pre-decisional opinions on a particular matter. For example, in Wolfe v. HHS, 839 F.2d 768 (D.C. Cir. 1988) (en banc), the requester sought agency logs that revealed “dates on which regulatory proposals, identified by subject matter title, were transmitted from one agency to another.” Id. at 771. The court found that material sought was protected by Exemption 5, reasoning that,

The fact of forwarding is, in each instance, the functional equivalent of an intra-agency or inter-agency memorandum that states, “We recommend that a regulation on this [named] subject matter be promulgated.” The fact of a failure to forward from the FDA to HHS, or from HHS to OMB is the equivalent of a memorandum from HHS to FDA that states, “We disapprove of your recommendation that a particular regulation on this [named] subject matter be promulgated.”

Id. at 774-75.

In the present case, however, no such opinions on the matter being decided, i.e. whether to fund Dr. Cherney's proposal, are revealed by disclosing when or if recommendations on the proposal were forwarded from one office of the DOE to another. Thus, with the minor exception of the small amount of information in some of these memoranda that reveals the opinions of agency personnel on the merits of the Appellant's proposal, these documents are not protected by FOIA Exemption 5.

5. The Public Interest in Disclosure of Material Subject to Exemption 5

As explained earlier, under 10 C.F.R. § 1004.1, material determined to be exempt from mandatory disclosure under the FOIA may be released if disclosure is determined to be in the public interest. Regarding information withheld under the deliberative process privilege, we find that the public interest is served by the frank and open expression of views by agency employees. The release of this deliberative material could have a chilling effect upon this expression. The ability and willingness of personnel to make honest and open recommendations concerning similar matters in the future could well be compromised. If personnel were inhibited in providing information and recommendations, the agency would be deprived of the benefit of their open and candid opinions. This would stifle the free exchange of ideas and opinions which is essential to the sound functioning of DOE programs. Fulbright & Jaworski, 15 DOE ¶ 80,122 at 80,560 (1987). Consequently, we conclude that release of the withheld material protected under Exemption 5 would result in foreseeable harm to the interests that are protected by the deliberative process privilege. FAS Engineering, Inc., 27 DOE ¶ 80,126 at 80,562 (1998); see Memorandum from Janet Reno, Attorney General, to Heads of Departments and Agencies (October 4, 1993) (stating that the Department of Justice will defend the assertion of a FOIA exemption only in those cases where the agency articulates a reasonably foreseeable harm to an interest protected by that exemption).

The appellant put forth two arguments that cite public interests in the disclosure of the information he seeks. First, he points to the public interest in the benefits that would result from deployment of his invention in the form of inexpensive, environmentally safe energy. See, e.g., Memorandum of telephone conversation between Matthew Cherney, M.D., and Steven Goering, OHA (January 4, 1999). Second, he contends that the withheld materials are evidence of criminal fraud, conspiracy to commit fraud, and other illegal behavior on the part of government officials. Id. We agree with the appellant that there is a public interest both in the development of cheap and safe energy supplies and the exposure of illegal conduct by government officials. However, having reviewed the documents in question, we cannot conclude that either interest would be furthered by release of the material we have found to be properly withheld under Exemption 5.

First, there is clearly a dispute as to the feasibility of the appellant's proposal, and this office is far from qualified to resolve that dispute within the scope of the present proceeding, in which we consider only Dr. Cherney's FOIA Appeal. Even if we were to assume that Dr. Cherney's proposal represents a quantum leap forward in energy production technology, we find the connection between the release of the documents in question and the proliferation of this technology to be indirect and tangential at best. Second, while exposure of unlawful conduct on the part of government officials would clearly further the public interest, the information we have found was properly withheld evidences, on its face, no illegal activity of any kind. Therefore, the public interest does not mandate release of the material withheld by DOE/EE under Exemption 5.

III. Conclusion

For the reasons stated above, we find that DOE/EE properly withheld some material from the Appellant under FOIA Exemption 5. However, we find that other information contained in the relevant documents, as specified above, may not be withheld from Dr. Cherney under Exemption 5. We will therefore remand this matter to DOE/EE so that it may either release the withheld information or issue another determination explaining why the information may be withheld pursuant to another FOIA exemption.(2)

It Is Therefore Ordered That:

(1) The Appeal filed by Matthew Cherney, M.D., Case No. VFA-0459, is granted as set forth in paragraph (2) below, and is in all other respects denied.

(2) This matter is hereby remanded to the Acting Deputy Assistant Secretary, Office of Utility Technologies, Energy Efficiency and Renewable Energy, for further proceedings in accordance with the instructions set forth in this Decision and Order.

(3) This is a final order of the Department of Energy from which any aggrieved party may seek judicial review. 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: January 19, 1999

(1) DOE/EE did not identify any documents responsive to items 3 and 4 of the Appellant's request in either of its determinations.

(2) Certain portions of the material withheld from these documents may be exempt under FOIA Exemption 6. However, since this was not one of the stated bases for DOE/EE's withholding, we make no finding here on the application of that exemption. If DOE/EE ultimately determines to withhold information under any other FOIA exemption, Dr. Cherney will have the opportunity to appeal that determination to this office.