Case No. VFA-0498, 27 DOE ¶ 80,218

July 20, 1999

DECISION AND ORDER

OF THE DEPARTMENT OF ENERGY

Appeal

Name of Petitioner: Jeffrey Walburn

Date of Filing: June 14, 1999

Case Number: VFA-0498

This Decision and Order concerns an Appeal that Jeffrey Walburn filed from a determination issued by the Department of Energy’s (DOE) Office of Inspector General (OIG). In this determination, OIG granted in part a request for information that Mr. Walburn filed pursuant to the Freedom of Information Act (FOIA), 5 U.S.C. § 552, as implemented by the DOE in 10 C.F.R. Part 1004. 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 which set forth the types of information agencies are not required to release.

In his FOIA request, Mr. Walburn asked for copies of any and all documents contained in investigation file number I98RR059. In its determination, OIG released certain documents in part, withholding segments of those documents pursuant to Exemptions 6 and 7(C) of the FOIA. Exemption 6 protects from disclosure "[p]ersonnel and medical and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy . . . " Exemption 7(C) provides that "records or information compiled for law enforcement purposes" may be withheld from disclosure, but only to the extent that the production of such documents "could reasonably be expected to constitute an unwarranted invasion of personal privacy . . . " In addition to the material withheld under these exemptions, OIG went on to state that "[d]ocuments 4, 9 through 36 and 38 through 40 are not being processed back to you since these documents were either written by you or addressed to you." Determination at 2.

In his Appeal, Mr. Walburn contests the OIG's "withholding" of documents 10, 21 through 23, 30 through 36, and 38. According to the determination letter, all of these documents were either generated by Mr. Walburn or addressed to him. Mr. Walburn subsequently informed us that he does not have copies of these documents. See memorandum of June 30, 1999 telephone conversation between Mr. Walburn and

Robert Palmer, OHA Staff Attorney. In response to Mr. Walburn's Appeal, OIG informed us that it wished to review these documents to determine whether they should be released under the FOIA.(1) See memorandum of July 7, 1999 telephone conversation between Robert Palmer, OHA Staff Attorney, and Ruby Isla, OIG.

We believe that OIG's policy in FOIA matters regarding documents previously provided to, or originating from, a FOIA requester is reasonable and in most instances reflects the wishes of the requester. However, in this case, the requester has made it clear that he seeks copies of all responsive documents, including those that he authored or that were previously provided to him. Since the FOIA does not exempt such documents from its provisions, we will remand this matter to the OIG for a determination regarding these materials. On remand, OIG should consider making available to Mr. Walburn copies of any relevant documents that were previously and properly provided to him. Any applicable FOIA exemptions have probably been waived with respect to such information. See, e.g., Hanford Advisory Board, 26 DOE ¶ 80,216 (1997). With regard to documents written by Mr. Walburn, we have previously found that the DOE may sometimes withhold information that is exempt under the FOIA, even if that material was authored by the requester. See, e.g., David E. Ridenour, 27 DOE ¶ 80,143 (1998). If OIG seeks to invoke Exemptions 6 or 7 with respect to documents he authored, however, it should take into account the source of the withheld material in assessing the privacy interests that are involved.

It Is Therefore Ordered That:

(1) The Appeal filed by Jeffrey Walburn, Case No. VFA-0498, is hereby granted as specified in Paragraph (2) below, and is denied in all other respects.

(2) This matter is hereby remanded to the Office of the Inspector General for further action in accordance with the instructions set forth in the above Decision and Order.

(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: July 20, 1999

(1)Apparently, such a review did not occur during OIG's consideration of Mr. Walburn's request because it was believed that the documents were already in his possession.