Kristine Anne Horpedahl, Case No. VFA-0485, April 30, 1999

Case No. VFA-0485, 27 DOE ¶ 80,202

April 30, 1999

DECISION AND ORDER

OF THE DEPARTMENT OF ENERGY

Appeal

Name of Petitioner: Kristine Anne Horpedahl

Date of Filing: March 22, 1999

Case Number: VFA-0485

On March 22, 1999, Kristine Anne Horpedahl (Horpedahl) filed an Appeal with the Office of Hearings and Appeals (OHA) of the Department of Energy (DOE) in response to a determination that DOE’s Office of the Inspector General (OIG) issued to Horpedahl on March 9, 1999. The determination concerned a request for information that Horpedahl submitted pursuant to the Freedom of Information Act (FOIA), 5 U.S.C. § 552, as implemented by DOE in 10 C.F.R. Part 1004. The Appeal, if granted, would result in the release of any existing responsive material to Horpedahl.

I. Background

On January 27, 1999, Horpedahl filed a FOIA request with the OIG for “a copy of the OIG Administrative Report to Management, MRD File, IG-98-INV-08, Case No. I96AL021 and any other OIG documentation naming [Horpedahl].” Letter from Horpedahl to OIG (January 27, 1999) (Request Letter). On March 9, 1999, the OIG advised Horpedahl that the case file that she requested was still open, and that she should resubmit her request after the case closed. Letter from OIG to Horpedahl (March 9, 1999) (Determination Letter). The OIG went on to state that it had reviewed the case file documents, and “[a]t this time, those documents are being withheld in their entirety pursuant to . . . Exemption 7(A).” Id. According to the OIG, “[r]elease of the withheld material at this time could prematurely reveal evidence and interfere with the ongoing enforcement proceeding.” Id. In addition, pursuant to DOE regulations, the OIG further determined that it was not in the public interest to release the investigative information. Id. Horpedahl then filed this Appeal. Letter from Horpedahl to Director, OHA (March 22, 1999).

II. Analysis

The FOIA generally requires that agency records be released to the public upon request. 5 U.S.C. § 552(a)(3). However, the FOIA provides nine exemptions for specific types of information that the agency may withhold at its discretion. 5 U.S.C. § 552(b)(1)-(b)(9); 10 C.F.R. § 1004.10(b)(1)-(b)(9).

The exemption asserted in this case, Exemption 7(A), permits an agency to withhold at its discretion “records or information compiled for law enforcement purposes, but only to the extent that the production of such law enforcement records or information (A) could reasonably be expected to interfere with enforcement proceedings.” 5 U.S.C. § 552(b)(7)(A); 10 C.F.R. § 1004.10(b)(7)(I). DOE regulations further provide that a document exempt from disclosure under the FOIA shall nonetheless be released to the public, whenever the DOE determines that disclosure is in the public interest. 10 C.F.R. § 1004.1.

A. Exemption 7(A)

In order to qualify for exemption from disclosure under FOIA Exemption 7(A), an investigatory record must meet two criteria: (1) it must be compiled for law enforcement purposes, and (2) its release could reasonably be expected to interfere with an ongoing enforcement proceeding. See Solar Sources, Inc. v. U. S., 142 F.3d 1033, 1037 (7th Cir. 1998) (Solar Sources); North v. Walsh, 881 F.2d 1088, 1097 (D.C. Cir. 1989); Bevis v. Department Of State, 801 F.2d 1386, 1388 (D.C. Cir. 1986) (Bevis).

The threshold requirement in any Exemption 7 inquiry is whether the documents are compiled for law enforcement purposes, i.e., as part of or in connection with an agency law enforcement proceeding. See Scripps Institute of Oceanography, 27 DOE ¶ 80,160 (1998) (Scripps); William Payne, 26 DOE ¶ 80,144 (1996); F.B.I. v. Abramson, 456 U.S. 615, 622 (1982). We have consistently found that the OIG compiles information for law enforcement purposes within the meaning of Exemption 7. SeeScripps, 27 DOE at 80,648; Richard Levernier, 26 DOE ¶ 80,182 (1997); Keci Corporation, 26 DOE ¶ 80,149 (1997). The OIG informed us that it accumulated the requested information as part of an ongoing enforcement proceeding. See Memorandum of Telephone Conversation between Jackie Becker, OIG, and Valerie Vance Adeyeye, OHA (March 30, 1999). Therefore, we find that the responsive documents were compiled for law enforcement purposes.

In order to withhold documents compiled for law enforcement purposes, the agency must show that disclosure of particular kinds of investigatory records while a case is pending would generally interfere with enforcement proceedings. Solar Sources, 142 F.3d at 1037; Murray, Jacobs & Abel, 25 DOE ¶ 80,130 (1995) (Murray); NLRB v. Robbins Tire and Rubber Co., 437 U.S. 214, 224 (1978) (NLRB). It is well-established that the agency may justify its withholdings by reference to generic categories of documents, rather than on a document-by-document basis. See, e.g., Bevis, 801 F.2d at 1389; Murray, 25 DOE at 80,575; North v. Walsh, 881 F.2d 1088, 1097 n.10 (D.C. Cir. 1989). The courts have allowed agencies to take a generic approach and to “group documents into relevant categories that are sufficiently distinct to allow a court to grasp how each . . . category of documents, if disclosed, would interfere with the investigation.” See Bevis, 801 F.2d at 1389, quoting Crooker v. Bureau of Alcohol, Tobacco and Firearms, 789 F.2d 64, 67 (D.C. Cir. 1986) (Crooker).

In Bevis, the court described a three-step process that an agency must use to make a generic determination pursuant to Exemption 7(A). We restated that process in Murray:

First, the government must define its categories functionally. Second, it must conduct a document by document review in order to assign documents to the proper category. Finally, it must explain how the release of each category would interfere with enforcement proceedings.

Murray, 25 DOE at 80,575-576. According to the court, in order for a category to be acceptable in a functional sense, it must allow the court to trace a rational link between the nature of the document and the alleged likely interference. Bevis, 801 F.2d at 1389, quoting Crooker, 789 F.2d at 64, 67. Thus, in order to use the generic approach, the OIG must establish a connection between the categories of documents that Horpedahl requested and alleged interference with the investigation if those documents were disclosed.

B. The Determination Letter

As an initial matter, we note that the Determination Letter did not name any categories of documents. Thus, we have no indication that the OIG has defined any categories in this case. We note that the Determination Letter referred only to the “case file documents.” There was no mention of the second part of Horpedahl’s request (i.e., other OIG documents that referred to her by name).

As previously stated, an agency must justify its withholdings under Exemption 7(A) either by document or by categories of documents. However, the determination letter made no reference to a document-by-document analysis or to a category analysis. Nonetheless, even though the OIG did not define any relevant categories in this case, we are permitted to infer two categories for purposes of a Bevis analysis. We have previously classified each item in an appellant’s request as a separate category. For instance, in Murray, the appellant listed six items in its request, and OHA interpreted each numbered item as a category. See Murray, 25 DOE at 80,573-574. In the instant case, Horpedahl requested two items: (1) the investigative case file, and (2) all other OIG documents mentioning her name. Thus, for the purpose of this analysis, we shall treat each item as a category.

1. The Investigative Case File

We find that the OIG properly withheld the investigative case file from the requester.(1) The case file contains information relating to an ongoing enforcement proceeding. That information, if disclosed, could logically be expected to “impede an appropriate resolution of the investigation” by prematurely revealing evidence, prematurely disclosing enforcement efforts, or providing individuals involved in the investigation an opportunity to fabricate or destroy evidence or intimidate witnesses. Determination Letter at 1-2. Thus, we find that there is a rational link between the investigative material in the file and the alleged interference with the proceeding that is likely to occur if the contents are released.

2. Any Other OIG Documents Naming the Requester

We find that the Determination Letter is insufficient as regards this category of documents. This office has previously stated that “an authorizing official must clearly specify the categories of documents upon which he is making his determinations of interference.” Murray, 25 DOE at 80,577. The OIG did not indicate whether it is in possession of any responsive material that is not contained in the investigative file. In fact, the OIG did not address this category at all. Accordingly, we shall remand this matter to the OIG for release of any existing, non-exempt responsive material, or for issuance of a written justification for further withholding.

It Is Therefore Ordered That:

(1) The Appeal filed on March 22, 1999 by Kristine Anne Horpedahl, OHA Case No. VFA-0492, is hereby granted as set forth in paragraph (2) below and denied in all other respects.

(2) This case is hereby remanded to the Office of the Inspector General, which shall promptly issue a new determination in accordance with the guidance set forth in the above 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 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: April 30, 1999

(1)We have previously stated that in cases in which we uphold a determination that the release of a category of documents would interfere with an enforcement proceeding, no review of portions of individual documents for segregability is necessary. See Murray, 25 DOE at 80,577.