Case No. VFA-0463, 27 DOE ¶ 80,177

January 6, 1999

DECISION AND ORDER

OF THE DEPARTMENT OF ENERGY

APPEAL

Name of Petitioner: Los Alamos Study Group

Date of Filing: December 7, 1998

Case Number: VFA-0463

On December 7, 1998, the Los Alamos Study Group (the Study Group) filed an Appeal of a determination issued on October 29, 1998, by the Albuquerque Operations Office (Albuquerque) of the Department of Energy (DOE) in response to a request for information filed under the Freedom of Information Act (FOIA), 5 U.S.C. § 552, as implemented by the DOE in 10 C.F.R. Part 1004. In its Appeal, the Study Group contends that Albuquerque improperly withheld a document under Exemption 5 of the FOIA, 5 U.S.C. § 552(b)(5), based on the deliberative process privilege. In the alternative, the Study Group contends that Albuquerque improperly failed to segregate and release factual information contained in this document. For the reasons detailed below, we will remand this matter to Albuquerque and direct it to issue a new determination that either releases this document or provides a detailed reason for withholding information.

BACKGROUND

This Appeal involves the "Site-wide Environmental Impact Statement" (SWEIS) that is currently being prepared for the Los Alamos National Laboratory (LANL).(1) On July 7, 1997,

the Study Group submitted a FOIA request seeking a copy of a document entitled the "TA-55 SWEIS Key Parameter Data Report"(Data Report).(2)

In response to this FOIA request, on October 29, 1998, the Director of the Office of Public Affairs (Public Affairs Director) issued a determination letter indicating that although a "draft of the specified report" had been located, this document would not be released because it contains predecisional information that may be withheld under Exemption 5 of the FOIA. The Public Affairs Director also indicated that the Data Report was a draft that had never been completed because "the process of developing the information contained in the document was transferred to development of the LANL Sitewide Environmental Impact Statement (SWEIS)," and that the information contained in the Data Report might be inaccurate.

The Public Affairs Director also stated that the Data Report, including the factual information contained in the document, could not be released without harming the process of agency deliberations. In support of this conclusion, he stated that:

[t]he draft document contains much factual information, from which was chosen pertinent information to be included in the SWEIS. . . . 'Selective' facts are entitled to the same protection as that afforded to purely deliberative materials, as their release would 'permit indirect inquiry into the mental process,' and so 'expose' predecisional agency deliberations. . . . In addition, to segregate and release the 'factual portion' of this draft document would reveal the exercise of judgment by agency personnel. Also, release of the draft document and any information contained therein would likely inhibit creative thoughts and candid expression of ideas within the organizations involved and in future such projects; thereby undermining the organizations's ability to perform its functions. (Citations omitted.)

On December 7, 1998, the Study Group appealed this determination to the Office of Hearings and Appeals (OHA). In its Appeal, the Study Group contends that the Data Report is not predecisional and, as a "final" document, is not encompassed by the deliberative process privilege. In support of its position, the Study Group attached a bibliography of the LANL Stockpile Stewardship & Management Master Plan (LANL Master Plan) which lists the Data Report as a source, but does not show that the Data Report is a draft. In the alternative, the Study Group contends that, even if the Data Report is a draft, Albuquerque should have segregated and released the factual portions of the document.

ANALYSIS

For the reasons detailed below, we will remand this matter to Albuquerque and direct it to issue a new determination that either releases this document or provides a detailed reason for withholding information.

EXEMPTION 5

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 held that Exemption 5 encompasses 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).

The deliberative process privilege of Exemption 5 permits the government to withhold documents that reflect advisory opinions, recommendations, and deliberations comprising part of the process by which government decisions and policies are formulated. Sears, 421 U.S. at 150. It is intended to promote frank and independent discussion among those responsible for making governmental decisions. EPA v. Mink, 410 U.S. 73, 87 (1973) (Mink) (citing Kaiser Aluminum & Chem. Corp. v. United States, 157 F. Supp. 939 (Ct. Cl. 1958)). The ultimate purpose of the exemption is to protect the quality of agency decisions. Sears, 421 U.S. at 151. In order to be shielded by Exemption 5, a document must be both predecisional, i.e. generated before the adoption of agency policy, and deliberative, i.e. reflecting the give-and-take of the consultative process. Coastal States, 617 F.2d at 866. The exemption thus covers documents that reflect, among other things, the personal opinion of the writer rather than the final policy of the agency. Id.

Although the deliberative process privilege is generally inapplicable to purely factual matters, there are exceptions to this general rule. The first exception is for those circumstances where factual information was selected from a larger collection of facts as part of the agency's deliberative process, and the release of either the collection of facts or the selected facts would reveal that deliberative process. See Montrose v. Train, 491 F.2d 63 (D.C. Cir. 1974); Dudman Communications v. Department of Air Force, 815 F.2d 1564 (D.C. Cir. 1987) (draft manuscript that contributed to public document exempt from disclosure under the FOIA because release of draft would reveal deliberative process if compared to the public document); but see Mapother v. Department of Justice, 3 F.3d 1533 (D.C. Cir. 1993) (agency required to release chronology prepared by staff because it was a "comprehensive collection of essential facts," reflected no point of view, and relationship between release of chronology and exposure of deliberative process was too attenuated). The second exception is for factual information that is so inextricably intertwined with deliberative material that its exposure would reveal the agency's deliberative process. Wolfe v. HHS, 839 F.2d 769, 774-76 (D.C. Cir. 1988).

THE DATA REPORT

To determine whether the Data Report was properly withheld under the deliberative process privilege, we asked counsel for the DOE Los Alamos Area Office (LAAO) for information concerning its purpose and use, and we also conducted an independent examination of the document. Counsel informed us that this document is a preliminary draft that was prepared by a government contractor for use by DOE in the preparation of the LANL SWEIS on matters relating to the TA-55 facility. Counsel characterized the Data Report as a large collection of facts that had been used by the drafters of the SWEIS as a body of information from which they selected pertinent information for inclusion in the SWEIS.(3) Counsel indicated that the Data Report has never been reviewed for accuracy.

Counsel also stated that, if Albuquerque released the Data Report, a reader could gain insight into the deliberative process that resulted in the SWEIS by comparing the facts set forth in the Data Report with the facts selected for inclusion in the SWEIS. Thus, a reader who compared these documents could obtain information concerning the exercise of judgment by agency personnel. See Memoranda from Lisa Cummings, Area Counsel for the DOE Los Alamos Area Office, to Linda Lazarus, Staff Attorney, OHA (December 17 and 23, 1998).

Counsel further indicated that the release of documents such as the Data Report would have a chilling effect on government decision-makers because:

[i]f draft documents such as these must be released to the public, an agency may be loath in the future to amass large amounts of information and expose itself to public scrutiny of it[s] decisonmaking process regarding what facts it believes are pertinent to be included in the final document. If unable to freely collect all pertinent facts for such a process, the quality of documents will suffer.

See Memorandum from Lisa Cummings to Linda Lazarus (December 23, 1998).

Based on our independent review of the Data Report, we learned that it is a fifty-seven-page document, consisting of a three-page Table of Contents, twenty-five pages of text, and twenty-nine pages of figures and tables. The document has the appearance of a draft. Each page has the word "DRAFT" at the top, there is no cover page, and some of the tables appear to be incomplete. Additionally, certain common words are abbreviated. The text of the Data Report is divided by the use of headings and sub-headings. The Table of Contents lists each heading and sub-heading, and indicates the page number of the Data Report on which the heading or sub-heading can be found. The following are some of the headings that appear in the Data Report: 1) Objective; 2) Introduction; and 3) Summary. The Data Report states that it provides a "technical aid and data source for those preparing the Los Alamos Site- Wide Environmental Impact Statement." A substantial amount of the information contained in the Data Report seems to be factual in nature.

BASIS FOR REMAND

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 under this subsection.” 5 U.S.C. § 552(b). Based on the information outlined above, we cannot conclude that the Data Report was properly withheld in its entirety because we are not persuaded that the deliberative process would be exposed in the event that segregable portions of this document were released.(4)

Counsel's argument that the release of the Data Report would expose the deliberative process because it could be compared to the SWEIS to ascertain which facts were excluded from the SWEIS does not justify the withholding of all the material in the Data Report. This argument justifies only the non-release of the part of the Data Report that consists of a body of facts from which facts were selected for the SWEIS. However, as detailed above, there are other types of material contained in the Data Report. For example, the document contains headings, such as "Objective," "Introduction," and "Summary," that do not contain such factual information. Moreover, the statement in the Data Report that it provides a "technical aid and data source for those preparing the Los Alamos Site-Wide Environmental Impact Statement" is also not part of a body of facts that was used as the source of the factual information in the SWEIS.(5) Albuquerque has not explained the reason that such material was not segregated and released.(6)

Accordingly, because we are unable to determine whether Albuquerque correctly withheld the Data Report under the deliberative process privilege, we will remand this matter to Albuquerque to determine if this document, or any information contained in this document, may be released without exposing the deliberative process. Albuquerque must then issue a new determination letter in which it releases this information, withholds it under other applicable FOIA exemptions, or provides a detailed explanation of the reason that release of the withheld information would expose the deliberative process.

Moreover, on remand, Albuquerque must comply with the DOE regulations implementing the FOIA that provide that “[t]o the extent permitted by other laws, the DOE will make records available which it is authorized to withhold under 5 U.S.C. § 552 whenever it determines that such disclosure is in the public interest.” 10 C.F.R. § 1004.1. On remand, Albuquerque should review the Data Report in order to determine whether its release would be in the public interest. If any of the requested information is still withheld on remand, the new determination letter should set forth reasons why release of this information would not be in the public interest.

Furthermore, it is the policy of the DOE with respect to Exemption 5 to withhold only information that, if released, would result in foreseeable harm to the interests that it protects. See Memorandum from Janet Reno, Attorney General, to Heads of Departments and Agencies (October 4, 1993) (to withhold material, agency must first determine that release would foreseeably harm basic institutional interests that underlie the exemption claimed). Accordingly, on remand, Albuquerque must consider whether release of any information it intends to withhold would result in foreseeably harm to the interests that are protected by Exemption 5.

It Is Therefore Ordered That:

(1) The Appeal filed by the Los Alamos Study Group on December 7, 1998, is hereby granted as set forth in Paragraph (2) below, and is in all other respects denied.

(2) This matter is remanded to Albuquerque to review the "TA-55 SWEIS Key Parameter Data Report" to determine if the release of this document, in whole or in part, would expose the deliberative process. Albuquerque must then issue a new determination letter in which it releases this information, withholds it under other applicable FOIA exemptions, or provides a detailed explanation of the reason that release of the withheld information would expose the deliberative process. Furthermore, on remand, Albuquerque should consider whether release of the withheld information would be in the public interest or result in foreseeable harm to interests that are protected by Exemption 5.

(3) 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 in which the requester resides or has a principal place of busi ness, 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 6, 1999

(1)A SWEIS provides DOE and the public with an analysis of the environmental impacts of past, present and reasonably foreseeable activities at a site, and compares these activities with reasonable alternatives to permit DOE to make more informed decisions regarding its activities, operations and resources. A SWEIS was last prepared for LANL in 1979. See "Notice of Intent to Prepare the SWEIS for the Los Alamos National Laboratory," 60 Fed. Reg. 25697 (May 12, 1995).

(2)LANL's proposed SWEIS specifically describes fifteen facilities, including TA-55. See Memorandum from Lisa Cummings to Linda Lazarus (December 17, 1998).

(3)Counsel also indicated that the Data Report was used as a "springboard" to develop the concepts expressed in the SWEIS.

(4)We do, however, find that this document is predecisional in nature. It is clear that the Data Report is, in fact, a draft. The non-final nature of this document is reflected in the fact that the word "DRAFT" appears at the top of each page, there is no cover page, several of the tables seem to be incomplete, and words are sometimes abbreviated. Moreover, counsel for LAAO has stated that the document was a preliminary draft used to prepare the SWEIS. Although the Data Report was listed, without reference to its draft status, in a bibliography of the LANL Master Plan, this does not affect our conclusion that the Data Report is a draft. Both drafts and non- drafts are listed in the LANL Master Plan bibliography, and the fact that the Data Report was not designated as a draft in the bibliography could have resulted from an oversight.

(5)Albuquerque also alleged that it should not be required to release the factual material in the Data Report because the factual material may be inaccurate. We find this argument unpersuasive. An agency cannot shield factual information from disclosure under the deliberative process privilege on the grounds that such information may be inaccurate. To hold otherwise could result in the expansion of the deliberative process privilege to include virtually all factual materials because nearly all factual information may arguably be inaccurate.

(6)It is not clear whether Albuquerque is claiming that there is non-factual deliberative material in the Data Report. On remand, in the event that Albuquerque continues to withhold any part of the Data Report under the deliberative process privilege, the new determination must specify whether the information withheld is factual or deliberative.