Case No. VFA-0493, 27 DOE ¶ 80,209

May 28, 1999

DECISION AND ORDER

OF THE DEPARTMENT OF ENERGY

Appeal

Name of Appellant: Matthew Cherney, M.D.

Date of Filing: April 19, 1999

Case Number: VFA-0493

Matthew Cherney, M.D., (Dr. Cherney) filed this Appeal in response to a determination that the Department of Energy's Office of the Inspector General (OIG) issued to him on April 5, 1999. The determination dealt with a request for information that Dr. Cherney submitted pursuant to the Freedom of Information Act (FOIA), 5 U.S.C. § 552, as implemented by the Department at 10 C.F.R. Part 1004. In his Appeal, Dr. Cherney requests the release of responsive material. As explained below, we will remand Dr. Cherney's request to the OIG for a new determination.

I. Background

On March 9, 1999, Dr. Cherney filed a request under the FOIA for copies of documents relating to an inquiry conducted by the OIG. On April 5, the OIG advised Dr. Cherney that the documents would be withheld because the inquiry was still open. The OIG explained that:

A review of the responsive documents ... has been made.... The responsive documents are being withheld in their entirety pursuant to ... Exemption 7(A).... There has not been a final determination concerning this matter. Accordingly, Exemption 7(A) has been applied to the responsive documents. Release of the material at this time could prematurely reveal evidence and interfere with the ongoing enforcement proceeding.

II. Analysis

The basic policy of the FOIA is to promote disclosure of agency records. 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 by OIG 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 ... 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).

In order to qualify for exemption from disclosure under 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 enforcement proceeding. 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). We will consider the two criteria separately.

1. Whether the Documents Were Compiled for Law Enforcement Purposes

The threshold requirement in any Exemption 7 inquiry is whether the documents are compiled for "law enforcement purposes." 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). Dr. Cherney argues strenuously that the OIG is not a law enforcement agency, and that its files are therefore not compiled for law enforcement purposes. He contends that "OIG is not a law enforcement operation. They do audits, write reports and the like.... [OIG has] no capacity to act as law enforcement does. They cannot indict someone. They cannot arrest someone."

Dr. Cherney's arguments are beside the point. The determination as to whether a particular activity is for "law enforcement purposes" in terms of Exemption 7 does not turn on the agency's ability to issue indictments or make arrests. Instead, courts have reasoned that "law enforcement purposes" include not only investigations based on civil and criminal law, but statutes involving administrative and regulatory proceedings as well. Center for National Policy Review v. Weinberger, 502 F.2d 370 (D.C. Cir. 1973) (Center for National Policy Review). Consequently, courts have extended Exemption 7 protection to many activities other than traditional police work. We cite the following examples of successful assertions of Exemption 7: Center for National Policy Review (investigation by the Office of Civil Rights of the Department of Health, Education, and Welfare); Kay v. F.C.C. (867 F. Supp. 11 (D.D.C. 1994) (investigation by the Federal Communications Commission for determining whether a license holder violated FCC rules); Ehringhaus v. F.T.C., 525 F. Supp. 21 (D.D.C. 1980) (investigation by the Federal Trade Commission into cigarette advertising practices); Mittleman v. Office of Personnel Management, 76 F.3d 1240 (D.C. Cir. 1996) (background investigation for an individual's security clearance).

The OIG is charged with investigating and correcting waste, fraud, or abuse in programs and operations administered or financed by the DOE. See Inspector General Act of 1978, codified as amended at 5 U.S.C. app. §§ 2(1)-(2), 4(a)(1), (3)-(4), (d), 6(a)(1)-(4), 7(a), 9(a)(1)(E). Thus, we have consistently found that the OIG compiles information for law enforcement purposes within the meaning of Exemption 7. Scripps, 27 DOE at 80,648; Richard Levernier, 26 DOE ¶ 80,182 (1997); Keci Corporation, 26 DOE ¶ 80,149 (1997). Similarly, courts have found that the Inspector General's offices in other agencies exercise the requisite law enforcement functions to protect their investigatory files under Exemption 7. E.g., Rural Housing Alliance v. Department of Agriculture, 498 F.2d 73 (D.C. Cir. 1974). We therefore reject Dr. Cherney's arguments, and find that the OIG's inquiry file was compiled for law enforcement purposes.

2. Whether Release of the Documents Could Reasonably be Expected to

Interfere with Enforcement Proceedings

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. NLRB v. Robbins Tire and Rubber Co., 437 U.S. 214, 224 (1978) (NLRB);Solar Sources, 142 F.2d at 1037; Murray, Jacobs & Abel, 25 DOE ¶ 80,130 (1995) (Murray).

However, in asserting interference, the agency need not make a determination on a document-by- document basis. Instead, it may take a generic approach and “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.” 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). An acceptable category must be functional; that is, it must allow a court to trace a rational link between the nature of the document and the alleged likely interference. Crooker, 789 F.2d at 64, 67. If the category of records is of the type that could reasonably be expected to interfere with enforcement proceedings generally, the agency need not make any particularized, document-specific showing of interference. NLRB, 437 U.S. at 224.

It is important to note that even though an agency "need not justify its withholding on a document-by-document basis in court, [it] must itself review each document to determine the category in which it properly belongs." Bevis, 801 F.2d at 1389. Thus, when an agency elects to use the "generic" approach, it "has a three-fold task. First, it must define its categories functionally. Second, it must conduct a document-by-document review in order to assign the documents to the proper category. Finally, it must explain how the release of each category would interfere with enforcement proceedings." Bevis, 801 F.2d at 1389-90; Murray, Jacobs, and Abel, 25 DOE ¶ 80,130 at 80576 (1995).

We recognize that in categorizing the responsive material, "a tightrope must be walked: categories must be distinct enough to allow meaningful judicial review, yet not so distinct as prematurely to let the cat out of the investigative bag." Curran v. Department of Justice, 813 F.2d 473 at 475 (1st Cir. 1987). However, courts have provided guidance as to what constitutes an adequate "generic category" for purposes of Exemption 7(A). The general principle uniting these decisions is that the "functional" description of the withheld material must be sufficient to indicate the type of interference threatening the law enforcement proceeding. Crooker, 789 F.2d at 67.

Thus, describing material withheld under Exemption 7 as "details regarding initial allegations giving rise to this investigation; notification of [FBI Headquarters] of the allegations and ensuing investigation; interviews with witnesses and subjects; [and] investigative reports furnished to the prosecuting attorneys," constitutes sufficient functional categories. Spannaus v. Department of Justice, 813 F.2d 1285 at 1287, 1289 (4th Cir. 1987). Similarly, functional categories describing withheld material as "identities of possible witnesses and informants, reports on the location and viability of potential evidence, and polygraph reports" are sufficient. Bevis, 801 F.2d at 1390.

On the other hand, categories describing material "only as 'teletypes,' 'airtels,' or 'letters'" are insufficient. Id. In following these principles, the U.S. District Court for the District of Columbia has determined that:

The ... descriptions of the materials withheld pursuant to Exemption 7(A) [as] "an administrative inquiry file which is currently pending" and "records or information [in an investigation file] that were garnered from an administrative inquiry ... which is still pending" ... are patently inadequate to permit the Court to determine whether Exemption 7(A) was properly invoked.

Putnam v. Department of Justice, 873 F. Supp. 705, 714 (D.D.C. 1995) (Putnam).

III. Conclusion

In its determination letter, OIG stated that it was withholding all responsive documents on the ground that "there has not been a final determination concerning this matter." We find that this explanation for withholding under Exemption 7(A), like the one rejected by the court in Putnam, does not describe a functional category or categories with sufficient detail to permit us to determine the type of interference threatening the law enforcement proceeding. Firearms Training Systems, 21 DOE ¶ 80,119 (1991); Stephen Quakenbush, 16 DOE ¶ 80,125 (1987). Because OIG did not conduct a document-by-document review to assign each document to a functional category, and did not explain how the release of information from a functional category would interfere with a law enforcement proceeding, we will remand this matter for a new determination.

It Is Therefore Ordered That:

(1) The Appeal filed by Matthew Cherney, M.D., Case No. VFA-0493, is hereby granted as set forth in Paragraph 2 below.

(2) This matter is hereby remanded to the Director of the Office of the Inspector General, which shall issue a new determination in accordance with the instructions 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: May 28, 1999