Case No. VFA-0490, 27 DOE ¶ 80,203

May 5, 1999

DECISION AND ORDER

OF THE DEPARTMENT OF ENERGY

Appeal

Name of Petitioner: Roy Chavez

Date of Filing: April 6, 1999

Case Number: VFA-0490

On April 6, 1999, Roy Chavez filed an Appeal from a determination issued to him by the Director of the FOIA /Privacy Act Division of the Department of Energy's (DOE) Office of the Executive Secretariat (hereinafter referred to as "the Director"). This determination was issued in response to a request for information that was processed under the Freedom of Information Act (FOIA), 5 U.S.C § 552, and the Privacy Act, 5 U.S.C. § 552a, as implemented by the DOE in 10 C.F.R. Parts 1004 and 1008, respectively.

The FOIA generally requires that documents held by the federal government be released to the public upon request. However, Congress has provided nine exemptions to the FOIA that set forth the types of information agencies are not required to release. 5 U.S.C. § 552(b)(1)-(b)(7); 10 C.F.R. § 1004.10(b)(1)-(b)(9).

The Privacy Act was enacted to prevent the unnecessary dissemination of personal information compiled about individuals by federal agencies. The Act also requires each agency to permit a requester to gain access to information pertaining to him which is contained in any system of records maintained by the agency. 5 U.S.C. § 552a(d). However, under the Privacy Act, agencies may provide that some systems of records are not subject to the Act's disclosure provisions, but only to the extent that those records fall under certain specified exemptions. 5 U.S.C. § 552a(j), (k).

I. Background

This proceeding was initiated by Mr. Chavez's request under the Privacy Act for a copy of his security clearance file. To afford him greater access to his records, the request was processed under both the Privacy Act and the FOIA. The DOE's Office of Safeguards and Security located this file in the DOE-43 "Personnel Security Clearance Files" system of records. The DOE has provided that this system of records is excepted from the disclosure provisions of the Privacy Act to the extent that the records contain

information that is subject to the Act's exemptions. 10 C.F.R. § 1008.12(b)(3)(ii). In his determination, the Director released to Mr. Chavez copies of all of the documents in his file except one. This one document, a memorandum of a telephone conversation between two DOE employees, was withheld in its entirety under Exemption k(5) of the Privacy Act, 5 U.S.C. § 552a(k)(5), and Exemption 7(D) of the FOIA, 5 U.S.C. § 552(b)(7)(D). Exemption k(5) of the Privacy Act permits the withholding of "investigatory material compiled solely for the purpose of determining suitability, eligibility or qualifications for Federal civilian employment, . . . or access to classified information, but only to the extent that the disclosure of such material would reveal the identity of a source who furnished information to the Government under an express promise that the identity of the source would be held in confidence . . . " 5 U.S.C. § 552a(k)(5). Exemption 7(D) of the FOIA provides that "records or information compiled for law enforcement purposes" may be withheld, "but only to the extent that the production of such" documents "could reasonably be expected to disclose the identity of a confidential source . . . which furnished information on a confidential basis . . . and, in the case of a record or information compiled by . . . an agency conducting a lawful national security intelligence investigation, information furnished by a confidential source." 5 U.S.C. § 552(b)(7)(D). The Director concluded that release of the withheld document would disclose both the identity of a source who requested and was promised confidentiality, and the information that that source provided in confidence.

II. Analysis

In his Appeal, Mr. Chavez contests the Director's application of Exemption k(5) of the Privacy Act. (1) Specifically, he contends that release of the memorandum would not reveal the identity of a confidential source because he is already aware of the source's identity, that the confidentiality agreement has been waived by the source's wide dissemination of information concerning the source's contact with the other DOE employee described in the memorandum, and that the continued withholding of the memorandum deprives him of his Privacy Act right to correct erroneous information in his file and of his constitutional right to due process under the Fifth Amendment. For the reasons set forth below, we reject Mr. Chavez's claims, and find that the Director properly withheld the memorandum under Exemption k(5).

In previous cases, we have stated that a requester's alleged knowledge of the identity of a source is irrelevant to a determination of the applicability of Exemption k(5). Dale R. Callaghan, 20 DOE ¶ 80,150 (1990); Jeffrey L. Turek, 11 DOE ¶ 80,142 (1983). See also Volz v. Department of Justice, 619 F.2d 49 (10th Cir. 1980) (Volz). In Volz, the court said

It is clear that the primary purposes of the exemption [k(5)] are to protect the privacy of confidential informants and facilitate governmental access to investigatory material which would not be made available absent a promise of confidentiality . . . These purposes would not be realized if disclosure could be compelled merely because the one seeking disclosure is aware that the source has given information of some sort to the agency. Not only the fact that an individual has talked to the agency but also the information thus obtained is protected from disclosure.

Id. at 50 (citations omitted). Mr. Chavez has not convinced us that the holdings in these cases are incorrect. We therefore conclude that his alleged knowledge of the identity of the source is irrelevant to the issue of whether the Director properly applied Exemption k(5).

Mr. Chavez's next contention is that confidentiality was waived when the person whom he believes to be the source wrote about communications with the other DOE employee mentioned in the withheld memorandum, and widely disseminated those writings. We find this argument to be equally unavailing. In Nemetz v. Department of the Treasury, 446 F. Supp 102 (N.D. Ill. 1978), the court held that a source did not waive confidentiality under Exemption k(5) when he discussed the content of the withheld information with the requester's attorney, stating that "[i]f an individual is to waive the express protections of [k(5)], it must be unequivocal. [The source] may have revealed a large portion of the contents of his interview to the [requester's] attorney, but he expressly refused to give a written authorization for release." Id. at 106. See also Lesar v. Department of Justice, 636 F.2d 472, 491 (D.C. Cir. 1980) (no waiver of confidentiality under analogous Exemption 7(D) of the FOIA where confidential information has become public). In the case before us, the source asked for and was promised confidentiality before providing information to the DOE. Moreover, the Director had contacted the source, who reiterated a desire for confidentiality. Determination Letter at 2. Under these circumstances, we cannot find a waiver of confidentiality.

Finally, Mr. Chavez argues that the withholding of the memorandum denies him his right under the Privacy Act to correct erroneous information in his personnel security file, and his constitutional right to be apprised of the charges against him. Although the Privacy Act does grant individuals access to government files containing information about them, that access is circumscribed by other provisions of the Act. As we previously stated, the Act permits agencies to protect certain systems of records from disclosure to the extent that those records contain information that falls under one of the Act's exemptions. 5 U.S.C. § 552a(j), (k). The withheld document is contained in the system of records denominated as DOE-43, "Personnel Security Clearance Files," which has been excepted from the access provisions of the Act pursuant to Exemption k(5). 10 C.F.R. § 1008.12(b)(3)(ii). Therefore, the withheld memorandum is not subject to disclosure or amendment under the Act. Any other result would effectively eviscerate Exemption k(5). The requester "can have access to the records, except parts identifying [the source] . . . unless they are otherwise exempted . . . There is some impediment by operation of the exemptions but that must be accepted unless the exceptions are to be destroyed." Hernandez v. Alexander, 671 F.2d 402, 408 (10th Cir. 1982).

We find Mr. Chavez's constitutional argument to be equally without merit. The record does not indicate that any disciplinary proceeding against Mr. Chavez has been initiated. Therefore, no formal charges, of which Mr. Chavez would have to be apprised, have been brought. Should such charges be brought, the extent to which he will be advised of material in his security clearance file is an issue that will have to be considered carefully. The Director's determination withholding the memorandum at this time does not deprive Mr. Chavez of life, liberty or property without due process of law pursuant to the Fifth Amendment of the Constitution. For the reasons set forth above, we will deny Mr. Chavez's Appeal.

It Is Therefore Ordered That:

(1) The Privacy Act Appeal filed by Roy Chavez on April 6, 1999 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 5 U.S.C. § 552a(g). 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: May 5, 1999

(1)Mr. Chavez does not contest the Director's determination with regard to Exemption 7(D) of the FOIA. However, we have reviewed the Director's application of that Exemption, and we conclude that he properly withheld the memorandum under 7(D).