Case No. VFA-0476, 27 DOE ¶ 80,192

March 12, 1999

DECISION AND ORDER

OF THE DEPARTMENT OF ENERGY

Appeal

Name of Petitioner:John L. Gretencord

Date of Filing: February 16, 1999

Case Number: VFA-0476

On February 16, 1999, the Office of Hearings and Appeals (OHA) received a Freedom of Information Act (FOIA) Appeal filed by John L. Gretencord. Gretencord is appealing a determination by the Department of Energy’s (DOE) Ohio Field Office (Ohio). Ohio issued a determination on December 15, 1998, in response to a request for information submitted in accordance with the provisions of the FOIA, 5 U.S.C. § 552, as implemented by the DOE in 10 C.F.R. Part 1004. The Appeal, if granted, would require DOE to conduct a further search for responsive materials and to release additional information to Gretencord.

I. Background

The present appeal appears before this office under somewhat unusual circumstances. The Appellant, Mr. Gretencord, is a former employee of a DOE contractor, West Valley Nuclear Services, Inc. (WVN). While he was employed by WVN at a DOE site, Gretencord apparently contacted DOE officials on several occasions to report his safety concerns. Gretencord's safety concerns were investigated by Ohio, which supervises the operations conducted on the DOE's behalf by WVN. Gretencord's employment was subsequently terminated by WVN. Gretencord, contending that his termination resulted from reporting his safety concerns to DOE, filed a whistleblower complaint with the DOE under 10 C.F.R. Part 708. Gretencord's whistleblower allegations were investigated by DOE's Office of Inspector General (the IG).

Gretencord also wrote his local member of Congress requesting intervention on his behalf "regarding the safety concerns investigation over the DOE-WVDP nuclear facility." Specifically, Gretencord sought to "review the investigation documentation and evidence." A member of the Congressman's staff referred Gretencord's request to the IG. The IG then referred the request to Ohio, requesting that it be processed under the FOIA. On December 15, 1998, Ohio issued a determination letter in which it released the contents of its file on the investigation of Gretencord's safety concerns to him. However, Ohio withheld portions of one document contained in the investigation file under the deliberative process privilege of Exemption 5. In addition, Ohio withheld the identities of several individuals under Exemption 6.

In his Appeal, Gretencord does not contest Ohio’s withholdings under Exemption 6. However, he contests the adequacy of the search for documents responsive to his request and Ohio's withholdings under Exemption 5.

II. Analysis

A. Adequacy of the Search

We have stated on numerous occasions that a FOIA request deserves a thorough and conscientious search for responsive documents, and we have not hesitated to remand a case where it is evident that the search conducted was in fact inadequate. See, e.g., Butler, Vines and Babb, P.L.L.C., 25 DOE ¶ 80,152 (1995). The FOIA, however, requires that a search be reasonable, not exhaustive. "[T]he standard of reasonableness which we apply to agency search procedures does not require absolute exhaustion of the files; instead, it requires a search reasonably calculated to uncover the sought materials." Miller v. Department of State, 779 F.2d 1378, 1384-85 (8th Cir. 1985); accord, Weisberg v. Department of Justice, 745 F.2d 1476, 1485 (D.C. Cir. 1984). In cases such as these, "[t]he issue is not whether any further documents might conceivably exist but rather whether the government's search for responsive documents was adequate." Perry v. Block, 684 F.2d 121, 128 (D.C. Cir. 1982).

Gretencord contends that the DOE should have searched the IG's files as well as Ohio's files. We agree. Initially, we note that the scope of Gretencord's request is somewhat ambiguous. On one hand, he refers to "[t]he safety concerns investigation over the [WVN] facility," while on the other hand he discusses his attempts to contact the IG and his whistleblower claims. Under circumstances where a request is ambiguous in nature, the DOE's FOIA regulations require the DOE to "invite the requester to confer with knowledgeable DOE personnel in an attempt to restate the request." 10 C.F.R. 1004.4(c)(2). Therefore, the IG should have contacted Gretencord to clarify the scope of his request instead of assuming that Gretencord sought only information concerning the investigation of his safety concerns. On appeal, Gretencord indicates that he intended to obtain information concerning the whistleblower investigation as well the safety investigation. Had the IG consulted with Gretencord, we believe he would have been able to clarify that he was also interested in the files of the whistleblower investigation. Accordingly, we are remanding this portion of the present appeal to the IG. On remand, the IG should conduct a new search of its files for all information generated as a result of its investigation into his whistleblower allegations. Upon completion of this search, the IG should issue a determination to Gretencord explaining its results.

B. Exemption 5

Exemption 5 of the FOIA exempts from mandatory disclosure documents that 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 Exemption 5 incorporates those “privileges which the Government enjoys under the relevant statutory and case law in the pre-trial discovery context.” Renegotiation Board v. Grumman Aircraft Engineering Corp., 421 U.S. 168, 184 (1975); see also NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 149 (1975) (Sears). Among the privileges that fall under this exclusion is the executive or deliberative process privilege. Coastal States Gas Corp. v. Department of Energy, 617 F.2d 854, 862 (D.C. Cir. 1980). The deliberative process privilege permits the government to withhold documents that reflect advisory opinions, recommendations, and deliberations comprising part of the process by which government formulates decisions and policies. Sears, 421 U.S. at 150. The purpose of the privilege is to protect the quality of agency decisions by promoting frank and independent discussion among those responsible for making governmental decisions. Sears, 421 U.S. at 151. See EPA v. Mink, 410 U.S. 73, 87 (1973) (quoting Kaiser Aluminum & Chem. Corp. v. United States, 157 F. Supp. 939, 946 (Ct. Cl. 1958)) (Mink).

In order for the deliberative process to shield a document, it 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. Even then, however, the exemption only covers the subjective, deliberative portion of the document. Mink, 410 U.S. at 87-91. An agency must disclose factual information contained in the protected document unless the factual material is "inextricably intertwined" with the exempt material. Soucie v. David, 448 F.2d 1067, 1077 (D.C. Cir. 1971).

After reviewing the information that Ohio withheld under Exemption 5, we find that it was properly withheld under Exemption 5's deliberative process privilege. The withheld information consists of portions of a report entitled "QA Paradigm Team Draft Findings." This document is a draft of a self-improvement team's tentative conclusions concerning WVN's Quality Assurance program. Because it is clearly a draft and is obviously recommendatory in nature, it is predecisional. Moreover, since it consists purely of opinion, it is clearly deliberative.

Release of this information could reasonably be expected to chill the agency's deliberative process. It is doubtful that the report's authors and sources would have provided the frank opinions contained in the report if they thought their opinions would be subjected to public release. The candid and frank exchange of ideas is critically important to the proper functioning of the agency. Because the public release of such candid and frank opinions could reasonably be expected to cause agency employees to become less frank and candid in the future, we find that releasing the withheld information would be contrary to the public interest. Accordingly, we find that Ohio's withholdings under Exemption 5 were proper.

III. Conclusion

For the reasons set forth above, we find that the IG should conduct an additional search for responsive documents. In addition, we find that Ohio's withholdings under Exemption 5's deliberative process privilege were proper.

It Is Therefore Ordered That:

(1) The Appeal filed by John L. Gretencord on February 16, 1999, Case Number VFA-0476, is hereby granted as set forth in Paragraph (2) and denied in all other aspects.

(2) The portion of the Appeal concerning the search for responsive documents is hereby remanded to the Office of Inspector General with instructions to conduct a further search for documents responsive to the Appellant's request 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 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 located, or in the District of Columbia.

George B. Breznay

Director

Office of Hearings and Appeals

Date: March 12, 1999