Case No. VFA-0481, 27 DOE ¶ 80,194

March 22, 1999

DECISION AND ORDER

OF THE DEPARTMENT OF ENERGY

Appeal

Name of Appellant:Los Alamos Study Group

Date of Filing:March 2, 1999

Case Number: VFA-0481

The Los Alamos Study Group (the “Study Group”) files this Appeal pursuant to the Freedom of Information Act (FOIA), 5 U.S.C. § 552; 10 C.F.R. § 1004. The Study Group had requested information from the Department of Energy’s Albuquerque Operations Office (the “Albuquerque Office”). In its most recent response, the Albuquerque Office sent the Study Group responsive documents from which substantial amounts of material had been redacted, and the Study Group appealed. As explained below, we will remand this matter to the Albuquerque Office.

In the background of this case is a report issued by the Albuquerque Office, titled “Site Wide Environmental Impact Statement (the “SWEIS”). In July 1997, the Study Group requested a copy of a document called “TA-55 SWEIS Key Parameter Data Report” (the “Data Report”). The Data Report was used to prepare the SWEIS. The Albuquerque Office informed the Study Group in October 1998 that it would not release the Data Report, claiming that it was protected from disclosure by Exemption 5 of the FOIA.

The Study Group appealed the October 1998 determination. We made three findings in our decision issued after consideration of the appeal. First, we required the Albuquerque Office to provide a “detailed explanation of the reason that release of the withheld information would expose the deliberative process.” Second, we directed the Albuquerque Office to review the Data Report to decide whether its release would be in the public interest, and, if not, to provide the reasons for its decision. Third, we directed the Albuquerque Office to explain how release of any of the withheld material would result in foreseeable harm to the basic institutional interests that are protected by Exemption 5. Los Alamos Study Group, 27 DOE ¶ 80,177 (1999).

On remand, the Albuquerque Office released a redacted copy of the Data Report: a three-page index, a page of introductory text, and a graphic of the TA-55 facility. The remaining fifty-one pages of the released version of the Data Report were blank, except for headings that were included in the index. In its determination letter, the Albuquerque Office stated that the “withheld information is factual rather than deliberative in nature.” It further explained that:

There is foreseeable harm to the Department in releasing the information. Disclosure of the report would reveal the Department’s deliberative process in preparing the SWEIS because a comparison between the information contained in the draft report and the SWEIS would reveal what material supplied by contractors was deemed appropriate for inclusion in the SWEIS. It is precisely this disclosure of a deliberative process that Exemption 5 is meant to protect.

Finally, by revealing the larger body of facts from which specific facts were drawn would not significantly further the public interest in gaining insight as to how the Department operates. Any slight benefit that would accrue from the release of the withheld material is far outweighed by the chilling effect that such a release would have on the Department’s willingness to collect a large amount of factual information to assist in the making of a discretionary decision.

The Study Group then filed the present appeal, contending that the Albuquerque Office’s decision to withhold information is not adequately explained in its determination letter.

The FOIA generally requires that federal agencies covered by the act release documents to the public upon request. 5 U.S.C. § 552(a)(3). There are, however, nine exemptions in the FOIA for types of information that an agency may withhold. 5 U.S.C. § 552(b)(1)-(b)(9); 10 C.F.R. § 1004.10(b)(1)- (b)(9). At issue in this case is Exemption 5 of the FOIA, which allows an agency to withhold “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). 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) (footnote omitted). The courts have identified several privileges that fall under this definition. These privileges include the attorney-client privilege, the attorney work-product privilege and the executive "deliberative process" or "pre-decisional" privilege. Coastal States Gas Corp. v. Department of Energy, 617 F.2d 854, 862 (D.C. Cir. 1980) (Coastal States). Only the "deliberative process" privilege is at issue here.

The "deliberative process" privilege permits an agency 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 exemption 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 Exemption 5 to shield a document, it must be both pre-decisional, 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. A common application of the deliberative process privilege is to protect draft documents. The fact that a document is a draft, however, does not end the analysis; in addition, the agency must consider whether Exemption 5 can be applied in a manner consistent with the guidance contained in the Memorandum from the Attorney General dated October 4, 1993). The Attorney General's Memorandum applies a presumption in favor of disclosure unless an agency articulates a reasonably foreseeable, specific harm to a specific interest protected by an exemption. See U.S. Solar Roof, 25 DOE ¶ 80,112 at 80,530 (1995); William D. Lawrence, 24 DOE ¶ 80,139 at 80,599 (1994).

In analyzing the withholding of material under Exemption 5, we begin with “the simple test that factual material must be disclosed but advice and recommendations may be withheld.” Wolfe v. Department of Health and Human Services, 839 F.2d 768, 774 (D.C. Cir. 1988). While this fact/opinion test offers “a quick, clear, and predictable rule of decision,” it must not be applied mechanically. This is because Exemption 5 serves to protect the deliberative process itself, not merely documents containing deliberative material. Id. Therefore, when an agency withholds material under Exemption 5, it “must examine the information requested in light of the policies and goals that underlie the deliberative process privilege.” Id.

A series of decisions by the District of Columbia Circuit illustrates how the deliberative process privilege can protect factual matter. In Montrose Chemical Corp. v. Train, 491 F.2d 63 (D.C. Cir. 1974), the requester sought summaries of an administrative record that aides had prepared for the administrator of the Environmental Protection Agency. The summaries had been compiled to help the administrator determine whether the pesticide DDT was harmful to the environment. The court upheld the agency’s decision to withhold the summaries under Exemption 5. In its decision, the court reasoned that “when a summary of factual material on the public record is prepared by the staff of an agency administrator, for his use in making a complex decision, such a summary is part of the deliberative process, and is exempt from disclosure under Exemption 5 of the FOIA.” Montrose Chemical, 491 F.2d. at 71.

Similarly, in Russell v. Department of the Air Force, 682 F. 2d 1045 (D.C. Cir. 1982), and Dudman v. Department of the Air Force, 815 F. 2d 1565 (D.C. Cir. 1987), the court shielded draft versions of official Air Force histories. The histories covered operations conducted during the Vietnam War. In protecting the drafts from disclosure, the court found that they were produced to inform future policy decisions. Russell, 682 F.2d at 1046, 1047; Dudman Communications, 815 F.2d at 1566.

On the other hand, in Playboy Enterprises, Inc. v. Department of Justice, 677 F.2d 931 (D.C. Cir. 1982), the court held that the FOIA required the disclosure of a report. The report had been compiled by staff members of the Department of Justice at the request of the Attorney General to inform the Senate Judiciary Committee concerning activities of a certain FBI informant

In Mapother v. Department of Justice, 3 F.3d 1533 (D.C. Cir. 1993), the court shielded from disclosure a report on Kurt Waldheim’s activities during World War II. The Justice Department had compiled the report for the Attorney General in deciding whether Waldheim was eligible to enter the United States. In holding that the Waldheim Report was properly withheld under Exemption 5, the D.C. Circuit explained its reasoning in the cases cited above.

It is true that the products of such labors can loosely be characterized as factual, in the sense that the issues ultimately being addressed have a prominent factual component: What is the evidence indicating that DDT is dangerous? What actions did the Air Force undertake, and what results did it achieve in a certain set of operations? Was substantial evidence adduced on a particular point at trial? In cases such as this, however, the selection of the facts thought to be relevant clearly involves “the formulation or exercise of … policy-oriented judgment” or “the process by whichpolicy is formulated,” Petroleum Info. Corp., 976 F.2d at 1435 (emphasis in the original), in the sense that it requires “exercises of discretion and judgment calls,” id. at 1435….

As our later cases make plain, the key to Montrose Chemical was not the relationship between the requested summaries and the public record, but that between the summaries and the decision announced by the EPA Administrator. See Playboy Enterprises, 677 F.2d at 936 (distinguishing Montrose Chemicals on grounds that it involved “a complex decision in an adjudicatory proceeding” as opposed to an investigative report “prepared only to inform”); Petroleum Info. Corp., 976 F.2d at 1437 (a “salient characteristic” of information eligible for protection under deliberative process privilege is its “association with a significant policy decision”) (emphasis in the original). Like the information requested in Montrose Chemical, the majority of the … factual material [requested in Mapother] was assembled through an exercise of judgment in extracting pertinent material from a vast number of documents for the benefit of an official called upon to take discretionary action. Therefore, we conclude that the Department properly withheld the product of this process.

Mapother, 3 F.3d at 1539. In summary, when a draft document is requested, the nature of the final document must be examined carefully to determine the applicability of Exemption 5. If the SWEIS were prepared “only to inform,” then materials used to prepare it, such as the Data Report, would be analogous to the report in Playboy Enterprises. It would not therefore be shielded by Exemption 5. If, however, the SWEIS is part of a process by which policy is formulated, then the Data Report is analogous to the material protected in Montrose Chemical, Russell, Dudman Communications, and Mapother. In other words, disclosure of the Data Report would reveal the deliberative process, and it could be shielded under Exemption 5.

Nothing in the determination letter from the Albuquerque Office addresses whether the SWEIS is an informational or policy document. We are therefore unable to determine from the record available to us whether Exemption 5 is applicable to the Data Report. Consequently, we will remand this matter to the Albuquerque Office for further proceedings consistent with this Decision.

It Is Therefore Ordered That:

(1) The Appeal filed by the Los Alamos Study Group, Case No. VFA-0481, is hereby granted as set forth in paragraph (2) below, and is denied in all other respects.

(2) This matter is hereby remanded to the Freedom of Information Act Official of the Albuquerque Operations Office of the Department of Energy for further action in accordance with the directions set forth in this Decision.

(3) This is a final Order of the Department of Energy from 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 either 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: March 22, 1999