Case No. VFA-0487, 27 DOE ¶ 80,201

April 22, 1999

DECISION AND ORDER

OF THE DEPARTMENT OF ENERGY

Appeal

Name of Appellant: Puget Sound Energy, Inc.

Date of Filing: March 25, 1999

Case Number: VFA-0487

On March 25, 1999, Puget Sound Energy, Inc. (Appellant) filed an Appeal from a final determination issued on January 5, 1999 by the Department of Energy’s Bonneville Power Administration (BPA).(1) This Appeal, if granted, would require BPA to release the withheld information and to conduct an additional search for responsive documents.

I. BACKGROUND

On December 30, 1998, the Appellant submitted a FOIA request to the BPA. On February 24, 1999, BPA issued a determination letter releasing 29 documents responsive to the Appellant's request. However, BPA withheld, under Exemption 5 of the FOIA, 9 documents that were responsive to the Appellant's request. On March 24, 1999, the appellant submitted the present Appeal, challenging the extent of the search that BPA conducted for responsive documents and BPA's application of Exemption 5 to the 9 withheld documents.(2)

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., Eugene Maples, 23 DOE ¶ 80,106 (1993);Native Americans for a Clean Environment, 23 DOE ¶ 80,149 (1993). To determine whether an agency's search was adequate, we must examine its actions under a "standard of reasonableness." McGehee v. CIA, 697 F.2d 1095, 1100-01 (D.C. Cir. 1983), modified in part on rehearing, 711 F.2d 1076 (D.C. Cir. 1983). This standard "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).

The Appellant contends that BPA's search was inadequate. Specifically, it asserts that: (1) BPA's search produced a smaller number of documents than the Appellant expected to receive; (2) the "documents tended to have been generated within very short time-frames in different years;" and (3) most of the material appears to come from only a small group of people. Appeal at 2, 7.

None of these arguments consists of anything but speculation. "Mere speculation that as yet uncovered documents may exist does not undermine the finding that the agency conducted a reasonable search for them." Safecard Services, Inc. v. Department of Justice, 926 F.2d 1197, 1201 (D.C. Cir. 1991). The adequacy of a search cannot be judged on the basis of whether it produced the number of documents that expected by the requester. The search in the present case identified 38 responsive documents, which, on its face, does not appear to be an inordinately small number of documents.

We reviewed the search conducted by BPA and found it to be adequate. The search was conducted by Tim Johnson, Esq., a BPA attorney with extensive knowledge of the subject matter area. Mr. Johnson informed us that he sent a memorandum to all BPA employees involved in evaluating the issues that were the subject of the request, instructing them to inform him of any documents that might be responsive to the request. As a result, 38 responsive documents were identified. Accordingly, we reject the Apellant's claim that BPA's search for responsive documents was inadequate.

B. Exemption 5

The FOIA requires that federal agencies generally release documents to the public upon request. Following an appropriate request, the FOIA requires agencies to search their records for responsive documents. 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).

BPA has withheld nine documents under the deliberative process privilege. The Appellant challenges these withholdings claiming that BPA must relate each withheld document to a particular decision in order to claim that it was predecisional. Appeal at 7-8. This contention is without merit. In order to determine whether a document is predecisonal, an agency does not have to specifically identify a particular agency decision, but rather must merely indicate "what deliberative process is involved, and the role played by the documents in issue in the course of that process." Coastal States, 617 F.2d at 868. As the Supreme Court has held:

Our emphasis on the need to protect pre-decisional documents does not mean that the existence of the privilege turns on the ability of an agency to identify a specific decision in connection with which a memorandum is prepared. Agencies are, and properly should be, engaged in a continuing process of examining their policies; this process will generate memoranda containing recommendations which do not ripen into agency decisions; and the lower courts should be wary of interfering with this process.

Sears, 421 U.S. at 151 n. 18.

After reviewing the nine withheld documents, we are convinced that BPA properly applied Exemption 5 to them. Each of the documents reflects internal communications consisting solely of candid and frank discussions of policy, political, practical, legal and economic implications of a potential large- scale business transaction. The frank and candid discussions include the weighing of various strategic and tactical aspects of the policies being considered. They are thus clearly pre-decisional and deliberative in nature and are clearly the type of information that Exemption 5's deliberative process privilege was designed to protect.

The DOE regulations provide that the DOE should release to the public material exempt from mandatory disclosure under the FOIA if the DOE determines that federal law permits disclosure and it is in the public interest. 10 C.F.R. § 1004.1. Notwithstanding our finding that BPA properly applied Exemption 5, we must consider whether the public interest nevertheless demands disclosure pursuant to 10 C.F.R. § 1004.1. In applying this regulation, we note that the Department of Justice has reviewed its administration of the FOIA and adopted a "foreseeable harm" standard for defending FOIA exemptions. Memorandum from the Attorney General to Heads of Departments and Agencies, Subject: The Freedom of Information Act (October 4, 1993) (Reno Memorandum). The Reno Memorandum indicates that whether or not there is a legally correct application of an exemption, it is the policy of the Department of Justice to defend the assertion of a FOIA exemption only in those cases where the agency articulates a reasonably foreseeable harm to an interest protected by that exemption. See Reno Memorandum at 1, 2. With regard to the material properly withheld in this matter pursuant to Exemption 5, the requested information consists of the opinions of individuals regarding different aspects of BPA decisions about potential new business projects and the legal and political ramifications pertaining to these projects. The release of this information would in our opinion have a chilling effect on the willingness of employees and managers to make candid statements of opinion and seriously impede BPA employees' ability to engage in candid discussions about important decisions. Consequently, we find that this harm satisfies the reasonably foreseeable harm standard articulated by the Attorney General and that the release of the requested documents would not be in the public interest.

III. Conclusion

Since the Appellant has not shown that the search for responsive documents conducted by BPA was inadequate and since we have concluded that BPA properly withheld nine documents under Exemption 5, we find that the present Appeal shall be denied.

It Is Therefore Ordered That:

(1) The Appeal filed by Puget Sound Energy, Inc. on March 25, 1999, Case No. VFA-0487, is hereby denied.

(2) 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 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: April 22, 1999

(1)BPA is a self-financing federal agency created to market power generated by federal dams on the Columbia River system. BPA also owns and operates approximately 80 percent of the bulk electric transmission system (e.g., power lines) in the Pacific Northwest. BPA markets both electric power and electric transmission service to various customers in the Pacific Northwest.

(2)In its Appeal, the Appellant also argues that it did not receive a timely response to its FOIA Request from BPA. The DOE regulations do not give us jurisdiction to oversee time delays in processing FOIA requests. However, if a requester does not receive a response within the 20-day deadline provided by statute, the requester is deemed to have exhausted his administrative remedies and has a right to a review in a district court of the United States. 5 U.S.C. § 552(a)(4)(B), (6)(A)(i), (6)(C)(i); cf. Pollack v. Department of Justice, 49 F. 3d 115, 118-19 (4th Cir. 1995), cert. denied, 516 U.S. 843 (1995) (case decided under prior 10-day deadline).