Case No. VFA-0473, 27 DOE ¶ 80,187

February 17, 1999

DECISION AND ORDER

OF THE DEPARTMENT OF ENERGY

Motion for Reconsideration

Name of Petitioner: Matthew Cherney, M.D.

Date of Filing:January 28, 1999

Case Number: VFA-0473

On January 28, 1999, Matthew Cherney, M.D., filed a Motion for Reconsideration of a Decision and Order that the Office of Hearings and Appeals (OHA) of the Department of Energy (DOE) issued on January 19, 1999. The January 19 Decision and Order considered Dr. Cherney's Appeal of 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. For the reasons detailed below, we will deny Dr. Cherney's motion.

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 that Dr. Cherney invented. Dr. Cherney's FOIA 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 evaluators (and any calculations): Hoffman, Galdo, Muhs, Rajic, Simpson, 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 Dr. Cherney'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 additional documents in their entirety, released four 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).

In considering Dr. Cherney's Appeal, we reviewed the 35 documents that DOE/EE withheld from him, either in part or in their entirety, in its September 18, 1998 determination. These documents were specifically identified in an “Index of Released Documents” and an “Index of Documents Not Released” DOE/EE provided to Dr. Cherney with the September 18, 1998 determination letter. A copy of these indices can be found in the Appendix to this Decision and Order. We reviewed all of the 31 documents listed in the “Index of Documents Not Released.” We also reviewed four documents listed in the “Index of Released Documents” that were withheld from Dr. Cherney in part.

In our January 19, 1999 Decision and Order, we found that DOE/EE properly withheld in part the four documents listed in the “Index of Released Documents.” Of the 31 documents listed in the “Index of Documents Not Released” we found as follows. DOE/EE properly withheld information in the 13 documents responsive to Dr. Cherney's request for “All written comments from evaluators (and any calculations): Hoffman, Galdo, Muhs, Rajic, Simpson, Schaffhauser.” However, we found that a portion of the material in two of these 13 documents (nos. 7 and 8) “can be released to Dr. Cherney without compromising the material withheld or imposing an inordinate burden on DOE/EE.” January 19, 1999 Decision and Order at 5. With respect to the 18 documents withheld in their entirety in response to Dr. Cherney's request for “Any other documents in the file” and “Any electronic communications or telephone recordings,” we found that DOE/EE may not withhold these documents in their entirety under FOIA Exemption 5. Id. at 6.

II. Analysis

Dr. Cherney's first argument in his Motion for Reconsideration concerns the documents that we found in our January 19, 1999 Decision and Order were properly withheld by DOE/EE under FOIA Exemption 5. Dr. Cherney contends that he was “told in writing” that these documents “did not even exist, . . .” Motion for Reconsideration at 1. In a letter submitted after he filed his Motion for Reconsideration, Dr. Cherney posits that the documents “never existed” or “do not exist at all and were 'invented'” by our office. Letter from Matthew Cherney, M.D., to George Breznay, Director, Office of Hearings and Appeals (January 26, 1999). Dr. Cherney asserts in the alternative that the documents provided to our office in the course of reviewing his Appeal “amount[] to back-dated fraudulent material.” Motion for Reconsideration at 1.

We find these contentions puzzling, because on December 9, 1998, Dr. Cherney provided us with the September 18, 1998 determination letter he received from DOE/EE, along with the two indices of documents we refer to above. These indices quite explicitly informed Dr. Cherney what documents did exist, and as we stated above, each document we found in our Decision and Order to be exempt from withholding under Exemption 5 was specifically identified in these indices. Thus, Dr. Cherney's contentions that he was not made aware of the existence of the documents we reviewed, or that they were “invented” after he filed his Appeal, have no factual basis. Moreover, in reviewing these documents, we found no evidence of alteration, nor is there any other extrinsic or intrinsic evidence to support his claim. Without even a shred of evidence to support Dr. Cherney's assertion that the documents were “back-dated” or “fraudulent,” we cannot blithely accept it as fact.

Second, Dr. Cherney takes issue with the statement in our Decision and Order that “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.” Id. (emphasis added). Dr. Cherney contends that because we see no evidence of illegal activity, we are “intimating that the material . . . was in fact exculpatory.” Motion for Reconsideration at 1. Regardless of any inferences Dr. Cherney may choose to draw from the text of our Decision and Order, we merely stated in that Decision, as we do now, that we could find no evidence of fraud or illegal activity of any kind in the documents we reviewed. Dr. Cherney offers us nothing in his Motion for Reconsideration that would alter that fact. Accordingly, the present Motion for Reconsideration will be denied.

It Is Therefore Ordered That:

(1) The Motion for Reconsideration filed by Matthew Cherney, M.D., on January 28, 1999, Case Number VFA-0473, is hereby denied.

(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 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: February 17, 1999