Case No. VFA-0496, 27 DOE ¶ 80,210

June 7, 1999

DECISION AND ORDER

OF THE DEPARTMENT OF ENERGY

Appeal

Name of Petitioner:Sowell, Todd, Laffitte, Beard & Watson, L.L.C.

Date of Filing: May 10, 1999

Case Number: VFA-0496

Sowell, Todd, Laffitte, Beard & Watson, L.L.C. (Sowell Todd) filed an Appeal from a series of five determinations issued to the firm in March and April 1999, by a number of offices at Department of Energy (DOE) Headquarters and the DOE's Savannah River Operations Office (Savannah River). Those determinations, taken together, constitute the response to two requests for information that Sowell Todd filed with the DOE, dated November 23, 1998 and February 23, 1999, pursuant to the Freedom of Information Act (FOIA), 5 U.S.C. § 552. Altogether, the DOE identified more than 90 documents as responsive to the requests. Of that number, some were released to Sowell Todd in their entirety, some were withheld in whole or in part, and some have not yet been the subject of a determination regarding release. This Appeal, if granted, would require the DOE to release all responsive documents in their entirety.

The FOIA requires that documents held by federal agencies generally be released to the public upon request. The FOIA, however, lists nine exemptions that set forth the types of information that may be withheld at the discretion of the agency. 5 U.S.C. § 552(b). Those nine categories are repeated in the DOE regulations implementing the FOIA. 10 C.F.R. § 1004.10(b). The DOE regulations further provide that documents exempt from mandatory 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.

I. BACKGROUND

The November 19 request was directed by DOE Headquarters to the Office of the Inspector General (OIG) for response.(1) The OIG's determination is one of the five determinations that Sowell Todd has appealed. It was issued on March 23, 1999 (Case No. 9811230001) and it identified 63 documents as responsive to the request. Each of these documents was handled in one of four ways: (a) it was released in its entirety to Sowell Todd (five documents, including one released earlier); (b) it was referred to Savannah River, because that office created the document (some of these 25 documents contained OIG redactions under Exemptions 5, 6 or 7(C), or a combination of these exemptions, of the Freedom of Information Act (FOIA)); (c) it was referred to the Office of Worker and Community Transition, because that office created the document (two documents); or (d) it was withheld in whole or in part under Exemption 5, 6 or 7(C), or a combination thereof (31 documents).

On April 14, 1999, Savannah River issued a partial determination with respect to the 25 documents that OIG referred to it. Savannah River named this case SR-99-020, and this is the second of the five determinations that Sowell Todd has appealed. In its determination, Savannah River released to the requester eight of the 25 documents in their entirety. The remaining 17 documents are still under consideration at this time. Because each of the documents was either released in full or is not yet the subject of a determination regarding its release, we find no grounds exist upon which to appeal this determination. OHA's jurisdiction in FOIA appeals extends only to cases where there has been a denial of a request for records. See 10 C.F.R. § 1004.8(a); David E. Ridenour, 27 DOE ¶ 80,143 (1998). We shall therefore dismiss that portion of Sowell Todd's appeal which relates to this determination letter. (2)

The Office of Worker and Community Transition responded to the November 19 request on April 8, 1999, and this response is the third of the five determinations under consideration on this appeal. Because this office released in their entirety the two documents that had been referred to it, there is no issue ripe for appellate review. We will therefore dismiss that portion of Sowell Todd's appeal which relates to this determination letter.

The fourth and fifth determination letters that Sowell Todd has appealed arise from a separate request that the firm submitted to Savannah River on February 23, 1999. In this request, Sowell Todd sought any documents regarding Savannah River's Voluntary Separation Program (VSP) and a review conducted by Savannah River to determine if violations of the VSP had occurred. This request was assigned Case No. SR-99-013. In a partial response to this request, on March 30, 1999, Savannah River identified 30 responsive documents, and released 25 of them in their entirety. This letter is the fourth of the five determinations that Sowell Todd has appealed and it challenges the withholding of portions of three of the five remaining documents under Exemption 6 of the FOIA. The other two responsive documents originated at Headquarters and, for that reason, Savannah River referred them to Headquarters for a determination.(3) Headquarters assigned the referral Case No. 9904070001. The fifth determination letter that Sowell Todd has appealed to us is one dated April 12, 1999 that advises the firm that the Office of the Executive Secretariat (DOE Headquarters) had received the referral from Savannah River; it contains no determination regarding the release of the two referred documents. Because the documents have not yet the subject of a determination regarding their release, no determination exists upon which an appeal can be taken, as discussed above. We therefore shall dismiss that portion of Sowell Todd's appeal which relates to this fifth determination letter.

This appeal, then, concerns the material withheld from 34 documents that the DOE identified as responsive to Sowell Todd's November 19, 1998 and February 23, 1999 requests.(4) OIG withheld information under Exemptions 5, 6, and 7(C) from 31 documents in its March 23, 1999 determination letter. Savannah River withheld information under Exemption 6 from three additional documents in its March 30, 1999 determination letter. All other responsive documents have either been released to Sowell Todd or are documents on which no release determinations have been completed. We have notified the affected offices that they should complete processing those documents as soon as possible.

In its appeal Sowell Todd argues that the application of Exemption 7(C) to the documents is inappropriate since the documents were not collected for law enforcement purposes. Additionally, it argues that material withheld pursuant to Exemption 6 was inappropriately withheld since release of such material would not constitute an unwarranted invasion of personal privacy. Sowell Todd asserts that the release of the withheld material would be in the public interest. Lastly, Sowell Todd argues that the documents should be released in their entirety because the documents at issue will become the subject of "subsequent requests for substantially the same records under 5 U.S.C. § 552(2)(D)." Appeal Letter from Marcy W. Johnson, Sowell Todd, to Director, OHA (April 29, 1999) at 2.

II. ANALYSIS

We have reviewed each of the documents at issue in the present case. We find that OIG and Savannah River properly withheld pursuant to the FOIA the vast majority of the information redacted from the documents. However, we have also determined that there is a small amount of material that was not properly withheld pursuant to the exemptions cited in the OIG's determination letter.

As an initial matter, Sowell Todd has advanced a general argument that all of the documents should be released because they "are likely to become the subject of subsequent requests for substantially the same records under 5 U.S.C. § 552(2)(D)." Appeal Letter from Marcy W. Johnson, Sowell Todd, to Director, OHA (April 29, 1999) at 2. We were unable to find this statute. We assume, however, that Sowell Todd refers to 5 U.S.C. § 552(a)(2)(D) which states:

Each agency, in accordance with published rules shall make available for public inspection and copying . . . .copies of all records, regardless of form or format, which have been released to any person under paragraph (3) and which, because of the nature of their subject matter, the agency determines have become or are likely to become the subject of subsequent requests for substantially the same records . . .

5 U.S.C. § 552(a)(2)(D). This section provides that when agencies determine that previously released documents (including those released pursuant to the FOIA) might be the subject of future requests, such documents are to be made available for public inspection in an agency reading room or web site. This provision does not mandate that exemptions from mandatory disclosure become inapplicable to documents that are subjects of repeated FOIA requests. We therefore reject this argument.

A. Exemption 5

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 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 three traditional privileges that fall under this definition of exclusion: the attorney-client privilege, the attorney work-product privilege and the executive "deliberative process" or "predecisional" 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 of Exemption 5 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 ultimate 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, the document 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, 1078 (D.C. Cir. 1971).

OIG withheld, in whole or in part, eight documents pursuant to Exemption 5's deliberative process privilege. (5) OIG Document No. 2, is a draft copy of a document entitled "Summary Abstract Report of Inspection on Allegation Regarding Voluntary Separation Program, Inspection No. S97IS030, Report No. " (Abstract). OIG Document No. 2 also contains a separate sheet ("Report Reference Sheet") detailing comments about the draft. The Abstract and Report Reference Sheet are predecisional and deliberative. Consequently, we conclude that most of the material was properly protected by Exemption 5. However, the Report Reference Sheet does contain a small amount of segregable factual material consisting of column headings, which should have been released to Sowell Todd. Additionally, the Abstract has some segregable material consisting of all section titles, other than those referring to an individual, and the address and signature blocks. Consequently, on remand OIG should either release this material or issue another determination explaining why this material is exempt pursuant to the FOIA. (6)

OIG Document No. 36 consists of two almost identical memoranda, one of which has been signed, transmitting a copy of a draft document entitled "Report on Inspection of an Allegation Regarding the Voluntary Separation Program at the Savannah River Operations Office" (Report). The memoranda do not appear to contain any deliberative material. Thus, the memoranda themselves are not withholdable pursuant to Exemption 5. The draft Report, however, contains predecisional, deliberative material that is protectable under Exemption 5. There is some segregable factual material, such as the title page and table of contents (other than the listings under "Findings and Recommendations"), which may be released. Additionally, most of the section titles in the Report may also be released except for those that are withholdable in the table of contents. On remand, OIG should either release this material or issue another determination explaining why this material may be withheld pursuant to the FOIA.

OIG Document No. 37 is two copies of a memorandum from Savannah River to OIG transmitting its one-page response to the draft Report. (7) While most of the memorandum itself contains predecisional, deliberative material describing Savannah River's opinions regarding the draft Report, there is some segregable non-deliberative material. Specifically, the address block, the first paragraph, as well as the last paragraph and all material below it on page one of the memorandum, consists of non-deliberative material not protectable pursuant to Exemption 5. With regard to the one-page response, the page titles and the first sentence are also non-deliberative and can be released. On remand, OIG should either release this material or issue another determination explaining why the material is withholdable under the FOIA.

OIG Document No. 51 consists of three pages describing suggested changes to the draft Report along with a copy of the draft Report with some suggested changes handwritten into the draft. The first

three pages describing the suggested changes are predecisional and deliberative and are properly protected by Exemption 5. The handwritten comments on the draft Report are also protectable under Exemption 5. The remainder of the draft Report was properly withheld under Exemption 5 with the exceptions noted earlier (segregable material in the title page, table of contents and section headings).

OIG Document No. 54 consists of a draft copy of the Report and Abstract. As described earlier, these are basically predecisional, deliberative documents, which are properly protected by Exemption 5. However, there is a small amount of segregable factual material that can be separated as described in our discussion of OIG Document Nos. 2 and 36. On remand, OIG should either release this material or issue another determination letter explaining why this material can be withheld under the FOIA.

OIG Document No. 56 is a document entitled "Disposition Review: WSRC Voluntary Separation Program." Three sentences of this document were withheld pursuant to Exemption 5.(8) These sentences describe opinions of the author regarding the inspection and as such are predecisional and deliberative. Consequently, we find that OIG properly withheld them pursuant to Exemption 5. OIG Document No. 59 is a Memorandum of Interview authored by an OIG investigator. Two paragraphs were withheld pursuant to Exemption 5. The paragraphs consists of a report indicating with whom the inspector spoke and the substance of their conversations. This material is not deliberative and as such is not protectable under Exemption 5. On remand, OIG should either release the material withheld in OIG Document No. 59 pursuant to Exemption 5 or issue another determination explaining why this material may be withheld under the FOIA.

OIG Document No. 62 is a one page handwritten note that contains various items apparently relating to the inspection at Savannah River. Because it is unclear from the document itself if these items represent information obtained in the inspection or represent opinions of the author, we will remand this document to OIG so that, on remand, it may issue a more detailed determination explaining why this document should be protected under Exemption 5 or another FOIA exemption. If OIG decides that no FOIA exemption is applicable, then the document should be released.

B. Exemptions 6 and 7(C)

1. OIG Documents

OIG withheld portions of 25 documents pursuant to both Exemptions 6 and 7(C).(9) In these documents, OIG withheld identifying information such as, names, job titles and salary information mentioned in these documents. (10)

Exemption 6 shields from disclosure "[p]ersonnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy." 5 U.S.C. § 552(b)(6); 10 C.F.R. § 1004.10(b)(6). The purpose of Exemption 6 is to "protect individuals from the injury and embarrassment that can result from the unnecessary disclosure of personal information." Department of State v. Washington Post Co., 456 U.S. 595, 599 (1982). Exemption 7(C) allows an agency to withhold "records or information compiled for law enforcement purposes, if release of such law enforcement records or information . . . could reasonably be expected to constitute an unwarranted invasion of personal privacy . . . ." 5 U.S.C. § 552(b)(7)(C); 10 C.F.R. § 1004.10(b)(7)(iii).

In order to determine whether a record may be withheld under either Exemption 6 or 7(C), an agency must undertake a three-step analysis. First, the agency must determine whether or not a significant privacy interest would be compromised by the disclosure of the record. If no privacy interest is identified, the record may not be withheld pursuant to either of the exemptions. See Ripskis v. Department of Hous. and Urban Dev., 746 F.2d 1, 3 (D.C. Cir. 1984) (Ripskis). Second, the agency must determine whether or not release of the document would further the public interest by shedding light on the operations and activities of the Government. See Reporters Committee for Freedom of the Press v. Department of Justice, 489 U.S. 749 (1989) (Reporters Committee). Finally, the agency must weigh the privacy interests it has identified against the public interest in order to determine whether release of the record either (1) would constitute a clearly unwarranted invasion of personal privacy (the Exemption 6 standard), or (2) could reasonably be expected to constitute an unwarranted

invasion of personal privacy (the Exemption 7(C) standard). See generally Ripskis, 746 F.2d at 3 (Exemption 6); Stone v. FBI, 727 F. Supp. 662, 663-64 (D.D.C. 1990) (Exemption 7(C)).

We have previously considered cases in which both Exemption 6 and 7(C) were invoked, and we stated that in such cases, provided the Exemption 7 threshold requiring a valid law enforcement purpose is met, we would analyze the withholding only under Exemption 7(C), the broader of the two exemptions. See, e.g., K.D. Moseley, 22 DOE ¶ 80,124 (1992). Since, as discussed below, all of the documents involved here were compiled for law enforcement purposes, any document that satisfies Exemption 7(C)'s "reasonableness" standard may be protected. Conversely, documents not protected by Exemption 7(C) will be unable to satisfy Exemption 6's more restrictive requirement that they constitute a clearly unwarranted invasion of personal privacy.

The threshold test for withholding information under Exemption 7(C) is whether such information is compiled as part of or in connection with an agency law enforcement proceeding. FBI v. Abramson, 456 U.S. 615, 622 (1982). Sowell Todd asserts that OIG is not a law enforcement agency and thus Exemption 7(C) may not be invoked to withhold material in the OIG documents.

The scope of Exemption 7 encompasses enforcement of both civil and criminal statutes. Rural Housing Alliance v. Department of Agriculture, 498 F.2d 73, 81 & n.46 (D.C. Cir. 1974). By law, OIG is charged with investigating waste, fraud, and abuse in programs and operations administered or financed by the DOE. 5 U.S.C. Appendix 3 § 4. OIG is therefore a classic example of an organization with a clear law enforcement mandate. Ortiz v. Department of Health and Human Services, 70 F.3d 729, 732-33 (2d Cir. 1995) (Ortiz) and cases cited therein. In the present case, the OIG Documents were created pursuant to an investigation of alleged misconduct concerning the Voluntary Separation Program at DOE's facility at Savannah River. Consequently, the OIG Documents at issue were created for a law enforcement purpose.(11)

(i) Privacy Interest

Because of the obvious possibility of harassment, intimidation, or other personal intrusions, the courts have consistently recognized significant privacy interests in the identities of individuals mentioned in law enforcement files, whether they be suspects, witnesses or investigators. See, e.g., Fitzgibbon v. CIA, 911 F.2d 755, 767 (D.C. Cir. 1990); Computer Professionals for Social Responsibility v. United States Secret Service, 72 F.3d 897, 904 (D.C. Cir. 1996) (Computer Professionals). Accordingly, we find that the individuals whose identities were withheld in this case have significant privacy interests in maintaining their confidentiality.

(ii) Public Interest in Disclosure

In its appeal, Sowell Todd argues that release of all the withheld information in the documents would be in the public interest but does not specifically articulate how disclosure would be in the public interest. In Reporters Committee, the Supreme Court found that in FOIA contexts, the public interest in disclosure must be measured in terms of its relation to the FOIA's basic purpose. Reporters Committee, 489 U.S. at 772. The Court identified the basic purpose of the FOIA as "'to open agency action to the light of public scrutiny.'" Id. (quoting Department of Air Force v. Rose, 425 U.S. 352, 372 (1976)). Therefore, the Court held that official information that sheds light on an agency's performance of its statutory duties falls squarely within the FOIA's statutory purpose. Id. at 773. The Court further found that information about private citizens that is contained in government files but reveals little or nothing about an agency's own conduct does not further the basic purpose of the FOIA. Id. After examining the documents in question, it is not apparent that release of the individuals' names and identifying information would contribute to the public's understanding of the DOE's behavior or performance in carrying out its duties. Thus, in the present case, we conclude there is little or no public interest in the disclosure of the names and identifying information withheld in the documents at issue in the present case.

(iii) The Balancing Test

Because release of the individuals' names or other identifying information could reasonably be expected to subject them to harassment or intimidation or other personal intrusions, we find that significant privacy interests exist for these individuals. After weighing the significant privacy interests present in this case against little or no public interest, we find that release of information revealing the individuals' identities could reasonably be expected to constitute an unwarranted invasion of personal privacy. Consequently, we find that the OIG properly withheld the information redacted from OIG Document Nos. 4, 5, 13, 14, 18, 21-24, 27-31, 33, 34, 41, 45, 47-50, 56, 59 and 63 under Exemptions 6 and 7(C).

2. SR Documents

Savannah River withheld the names of individuals from SR Document Nos. 11d, 13 and 13a pursuant to Exemption 6 alone. SR Document No. 11d is a letter responding to the OIG's inspection of Savannah River's Voluntary Separation Program. This letter explains the process of how a particular person's application for the Voluntary Separation Program was handled. SR Documents Nos. 13 and 13a consist of a letter and attachment in which another individual's subcontracting costs have been deemed to be unallowable and the charges have been withdrawn from Westinghouse Savannah River Corporation (WSRC), the Management and Operating contractor at Savannah River. Only the individuals' names are withheld in each of these documents.

The individual named in SR Document 11d has a strong privacy interest in keeping his or her identity private especially in light of the fact that his or her name is mentioned in response to an OIG investigation. The individual mentioned in SR Document Nos. 13 and 13a has a lesser privacy interest in not having his or her name associated with the improper charging of WSRC for costs related to the individual's services. As discussed above, we balance these privacy interests against whether or not release of the documents would further the public interest by shedding light on the operations and activities of the Government. In this case, we find no public interest which would be furthered by release of the names withheld in the SR Documents since the names would add little or no additional information about DOE's own conduct. Because release of the withheld names in SR Document Nos. 11d, 13 and 13a would not further the public interest and because the individuals have privacy interests in keeping their names private, we find that release of the names in the SR Documents would constitute a clearly unwarranted invasion of personal privacy. Consequently, we believe that Savannah River properly applied Exemption 6 to SR Documents Nos. 11d, 13 and 13a.

C. The Public Interest in Disclosure of the Withheld Material

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 OIG properly applied Exemption 5 to a portion of the requested information, we must consider whether the public interest nevertheless demands disclosure of the Exemption 5 material 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 and recommendations of OIG investigators regarding an OIG inspection. The release of this information would in our opinion impair the willingness of OIG investigators to make frank statements of opinion on sensitive issues such as whether individuals or DOE entities have committed violations of DOE regulations. Therefore such release would seriously impede OIG's ability to investigate fraud, waste and abuse in DOE programs. Consequently, we find that this harm satisfies the reasonably foreseeable harm standard articulated by the Attorney General and that the release of the material protected pursuant to Exemption 5 contained in the requested documents would not be in the public interest. We need not make a determination of this sort with respect to the information withheld under Exemptions 6 and 7(C) because, as discussed above, we have already considered the public interest in release of that information.

It Is Therefore Ordered That:

(1) The Appeal filed by Sowell, Todd, Laffitte, Beard & Watson, L.L.C. on May 6, 1998, Case No. VFA-0496, is hereby dismissed with respect to the determinations that the DOE's Savannah River Operations Office issued on April 14, 1999 and the DOE's Office of Worker and Community Transition issued on April 8, 1999. The Appeal is also dismissed with regard to the letter issued on April 12, 1999 by the Office of the Executive Secretariat. The Appeal is hereby granted in part as set forth in Paragraph (2) and is denied in all other respects.

(2) This matter is remanded to the Department of Energy's Office of Inspector General for further consideration in accordance with the instructions contained in the foregoing 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: June 7, 1999

(1)This request was also directed to Savannah River, which responded separately on January 25, 1999, in Case No. SR-98-073, with the release of three documents. Sowell Todd has not appealed this determination.

(2)If a requester does not receive a response at the end of the 20-day period, the requester may deem his administrative remedies as exhausted 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), and (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) (decided under prior 10-day deadline).

(3)In a final response to the February 23, 1999 request, Savannah River issued a determination on April 12, 1999, in which it identified another document responsive to the request. That document was withheld in part under Exemption 5 of the FOIA. Sowell Todd has not appealed this determination.

(4)The documents as to which OIG issued a determination regarding in its March 23, 1999 letter and that are the subject of this appeal will be referred to as "OIG Documents." The documents on which SR issued a final determination in its March 30, 1999 letter and which are the subject of this appeal will be refereed to as "SR Documents." This appeal will review the DOE's determinations regarding OIG Document Nos. 2, 4, 5, 13, 14, 18, 21-24, 27-31, 33, 34, 36, 37, 41, 45, 47-51, 54, 56, 59, 62 and 63 as well as SR Document Nos. 11d, 13 and 13a.

(5)OIG Document Nos. 2, 36, 37, 51, 54 and 62 were withheld in their entirety pursuant to Exemption 5. OIG Document Nos. 56 and 59 were withheld in part pursuant to Exemption 5.

(6)OIG informed us that its policy with regard to draft documents deemed responsive to a FOIA request is to generally withhold them in their entirety since the material that is releasable, specifically, portions of the drafts that are expressly incorporated into the final version of a document, are already in the possession in the requester when he or she receives the final version of the document. The OIG determination letter informs the requester that if he or she wishes a redacted portion of a draft document OIG will promptly issue a redacted version of the draft document. Because we are remanding this matter to OIG so that non-deliberative material can be released to Sowell Todd, OIG should also review all of the material withheld pursuant to Exemption 5 as described in its determination letter and release any material that has been expressly adopted in any final versions of OIG documents articulating a final agency position. See Sears, 421 U.S. at 161 (documents lose protection of deliberative process privilege if such documents are expressly adopted or incorporated by reference).

(7)One of the copies is signed by the manager at Savannah River.

(8)Other portions of this document as well as OIG Document No. 59 were withheld pursuant to Exemptions 6 and 7(C). These withholdings are discussed in the next section infra.

(9)The OIG documents which had material withheld pursuant to Exemptions 6 and 7(C) were OIG Document Nos. 4, 5, 13, 14, 18, 21-24, 27-31, 33, 34, 41, 45, 47-50, 56, 59 and 63. This material consists of documents such as Memoranda of Interviews with various individuals, OIG memoranda to the file and the working papers of OIG investigators.

(10)One handwritten sentence withheld at the bottom of OIG Document No. 22 does not relate to any individual and as such does not implicate any privacy interest. Consequently, it is not protectable pursuant to Exemption 6 or 7(C). However, because the withheld segment refers to an investigator's deliberative, predecisional analysis of the investigation, we find that it may nevertheless be withheld pursuant to Exemption 5.

(11)Because the SR documents were withheld pursuant to Exemption 6 alone we will specifically discuss the applicability of Exemption 6 to those documents infra.