Case No. VFA-0500, 27 DOE ¶ 80,213

June 30, 1999

DECISION AND ORDER

OF THE DEPARTMENT OF ENERGY

Appeal

Name of Petitioner: STAND of Amarillo, Inc.

Date of Filing: June 3, 1999

Case Number: VFA-0500

On June 3, 1999, STAND of Amarillo, Inc. (STAND), filed an Appeal from a determination issued by the Department of Energy's Rocky Flats Field Office (DOE/RF). The determination responded to a request for information filed under the Freedom of Information Act (FOIA), 5 U.S.C. § 552, as implemented by the Department of Energy (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. 5 U.S.C. § 552(a)(6)(A). However, Congress has provided nine exemptions to the FOIA setting forth the types of information agencies are not required to release. 5 U.S.C. § 552(a)(6)(B). Under the DOE’s regulations, a document exempt from disclosure under the FOIA shall nonetheless be released to the public whenever the DOE determines that disclosure is not contrary to federal law and in the public interest. 10 C.F.R. § 1004.1.

I. Background

On June 22, 1998, STAND requested from DOE/RF

the following information regarding the evaluation of the Pantex plant(1) for long term storage of plutonium metals and oxides presently at the Department of Energy's Rocky Flats Environmental Technology Site (RFETS). This evaluation was reported in the February 29, 1998 Kaiser Hill Corporation letter: “Acceleration Strategy for Integrated Nuclear Material Disposition.” For all items the documents requested are for the period February 1, 1997 to June 22, 1998.

1. A copy of all documents evaluating the storage of plutonium metals and oxides at the Pantex Plant.
2. A copy of the project proposal or equivalent document for evaluating storing of plutonium metals and oxides at the Pantex Plant.
3. A copy of all correspondence--email, letters, memorandums--regarding the storage of plutonium metals and oxides at the Pantex Plant and/or the relocation of the Plutonium Stabilization and Packaging System; between DOE's Rocky Flats Field Office and/or its contractors and the DOE's Albuquerque Operations Office, Amarillo Area Office and/or its contractors.

Letter from Don Moniak, STAND, to Freedom of Information Officer, DOE/RF (June 22, 1998).

On April 20, 1999, DOE/RF sent a response to STAND stating that it located one document responsive to STAND's request, entitled “Should Rocky Flats Environmental Technology Site Pursue Accelerated Shipments of Non-Pit Plutonium Metal to Pantex.” Letter from Jessie M. Roberson, DOE/RF, to Don Moniak, STAND (April 20, 1999). However, it withheld this document in its entirety from STAND, citing FOIA Exemption 5. Id. On June 3, 1999, STAND filed the present appeal, contesting both the withholding of this document and the adequacy of DOE/RF's search for responsive documents. Appeal at 1-2.

II. Analysis

A. Withholding of Document Under FOIA Exemption 5

Exemption 5 of the FOIA exempts from mandatory disclosure documents that are “inter-agency memoranda 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). The three principal privileges that fall under this definition of exclusion are the attorney-client privilege, the attorney work product privilege, and the “deliberative process” privilege. Coastal States Gas Corp. v. Department of Energy, 617 F.2d 854, 862 (D.C. Cir. 1980) (Coastal States). In the present case, DOE/RF relied upon the deliberative process privilege of Exemption 5.

The deliberative process privilege shields from public disclosure records reflecting the predecisional, consultative process of an agency. Benedetto Enterprises, Inc., 19 DOE ¶ 80,106 (1989); Darci L. Rock, 13 DOE ¶ 80,102 (1985). Predecisional materials are not exempt merely because they are prepared prior to a final action, policy, or interpretation. These materials must be a part of the agency's deliberative process by which decisions are made. Vaughn v. Rosen, 523 F.2d 1136, 1144 (D.C. Cir. 1975). This privilege was developed primarily to promote frank and independent discussion among those responsible for making government decisions. EPA v. Mink, 410 U.S. 73, 87 (1973) (quoting Kaiser Aluminum & Chem. Corp. v. United States, 157 F. Supp. 939 (Cl. Ct. 1958)). The ultimate purpose of the exemption is to protect the quality of agency decisions. NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 151 (1975).

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, 1077-78 (D.C. Cir. 1971).

In the present case, DOE/RF cited Exemption 5 in withholding the one responsive document it had located, a draft report entitled “Should Rocky Flats Environmental Technology Site Pursue Accelerated Shipments of Non-Pit Plutonium Metal to Pantex.” In its letter to STAND, DOE/RF stated that “the disclosure of deliberative data would inhibit frank and open discussion of the matter, would hinder the Government's ability to reach sound and well reasoned resolutions, and is likely to result in public confusion about the rationale(s) for Departmental actions.”

STAND argues in its Appeal that (1) the draft report “is neither a memo or a letter;” (2) the draft report cannot be predecisional and deliberative as it is dated after DOE had reached a decision on where to ship non-pit plutonium; (3) under the National Environmental Policy Act (NEPA), any proposal to send non-pit plutonium to Pantex would have required a change to a public Record of Decision; and (4) there is a strong public interest in the DOE's decisions as to where to ship plutonium. Appeal at 1-2; Memorandum from Don Moniak, STAND, to Steven Goering, OHA (June 21, 1999). After reviewing a copy of the report in question, we reach the following conclusions regarding the Appellant's arguments.

First, we disagree with the appellant that the draft report is not a memorandum, as it clearly is a written communication intended to convey ideas between RFETS personnel. Moreover, while the text of Exemption 5 refers to “memoranda or letters,” the courts have extended the exemption to all “documents . . . normally privileged in the civil discovery context,” Sears, 421 U.S. at 149 (emphasis added). Analysis in the courts focuses on the nature of the content of a document rather than whether the document is accurately characterized as a memorandum or letter.

Second, that the report in question may have been drafted after the agency announced a decision on where to ship RFETS's non-pit plutonium does not preclude the application of Exemption 5. As the Supreme Court has stated,

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. In the present case, the document in question clearly reflects the deliberations of RFETS on an alternative for storage of non-pit plutonium, and those deliberations should be shielded by Exemption 5 whether they preceded a particular pronouncement of agency policy, or whether they postdated that pronouncement and merely reflected RFETS's “continuing process of examining their policies.” Similarly, whether those deliberations were conducted in compliance with NEPA does not alter their status as deliberation, and thus does not enter into our determination as to the applicability of FOIA Exemption 5.

Finally, under 10 C.F.R. § 1004.1, material determined to be exempt from mandatory disclosure under the FOIA may be released if disclosure is determined to be in the public interest. Regarding information withheld under the deliberative process privilege, we find that the public interest is served by the frank and open expression of views by agency employees. The release of this deliberative material could have a chilling effect upon this expression. The ability and willingness of personnel to make honest and open recommendations concerning similar matters in the future could well be compromised. If personnel were inhibited in providing information and recommendations, the agency would be deprived of the benefit of their open and candid opinions. This would stifle the free exchange of ideas and opinions which is essential to the sound functioning of DOE programs. Fulbright & Jaworski, 15 DOE ¶ 80,122 at 80,560 (1987). Consequently, we conclude that release of the withheld material protected under Exemption 5 would result in foreseeable harm to the interests that are protected by the deliberative process privilege. FAS Engineering, Inc., 27 DOE ¶ 80,126 at 80,562 (1998); see Memorandum from Janet Reno, Attorney General, to Heads of Departments and Agencies (October 4, 1993) (stating that the Department of Justice will 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).

We agree with STAND that there is a high public interest in DOE's decision as to where plutonium from RFETS should be shipped. We also note the Appellant's concern that the DOE's deliberations “failed to involved known stakeholders.” Memorandum from Don Moniak, STAND, to Steven Goering, OHA (June 21, 1999). But we must distinguish these interests from the public's interest in ideas and opinions an agency may bandy about in its internal deliberations, but which the agency has never incorporated into its policy.

The public is only marginally concerned with reasons supporting a policy which an agency has rejected, or with reasons which might have supplied, but did not supply, the basis for a policy which was actually adopted on a different ground. In contrast, the public is vitally concerned with the reasons which did supply the basis for an agency policy actually adopted.

Sears, 421 U.S. at 152.

In sum, after reviewing the document in question, we find that it contains material that reflects RFETS's deliberative process and is therefore exempt from disclosure under the FOIA. However, this does not justify withholding the document in its entirety. Exemption 5 covers only the subjective, deliberative portion of a 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, 1077-78 (D.C. Cir. 1971). We therefore must remand this matter to DOE/RF, and order it to issue a new determination to the appellant releasing the factual, non-deliberative portions of this document.

B. Adequacy of DOE/RF's Search for Responsive Documents

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., Butler, Vines and Babb, P.L.L.C., 25 DOE ¶ 80,152 (1995). The FOIA, however, requires that a search be reasonable, not exhaustive. "[T]he standard of reasonableness which we apply to agency search procedures 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); accord Weisberg v. Department of Justice, 745 F.2d 1476, 1485 (D.C. Cir. 1984). In cases such as these, "[t]he issue is not whether any further documents might conceivably exist but rather whether the government's search for responsive documents was adequate." Perry v. Block, 684 F.2d 121, 128 (D.C. Cir. 1982).

The DOE/RF FOIA Officer informed us that it identified two locations where documents responsive to STAND's request might be located: in the offices of Kaiser-Hill Company, the DOE prime contractor responsible for managing RFETS, and in the office of DOE/RF's Assistant Manager for Material Stabilization & Disposition. The FOIA Officer therefore forwarded the request to both offices. Personnel in the latter office responded that it had located no documents responsive to the request.(2) Kaiser-Hill responded that it had located one document, the draft report discussed above. To obtain more detail on the search conducted at Kaiser-Hill, we contacted the individual at the company responsible for searching for responsive documents. She explained that she identified one department within Kaiser-Hill (Nuclear Operations) and separate operations managed by three Kaiser-Hill subcontractors as possible locations of responsive documents. Each of the three subcontractors responded that it did not locate responsive documents, and the document ultimately located by Kaiser-Hill was found within the Nuclear Operations department of the company.

We find that the search for responsive documents coordinated by the DOE/RF FOIA Officer extended to the offices within DOE/RF and RFETS where it is reasonable to believe those documents would be located. We therefore conclude that DOE/RF’s search was reasonably calculated to uncover the documents sought by the Appellant.

C. Conclusion

For the reasons stated above, we are remanding this matter to DOE/RF for the limited purpose of issuing a new determination to the appellant either releasing the factual, non-deliberative portions of the document it withheld, or explaining why that information may be withheld pursuant to another FOIA Exemption. With respect to any other issues the Appellant has raised, we will deny the Appeal.

It Is Therefore Ordered That:

(1) The Appeal filed by STAND of Amarillo, Inc., Case No. VFA-0500, is granted as set forth in paragraph (2) below, and is in all other respects denied.

(2) This matter is hereby remanded to the Department of Energy's Rocky Flats Field Office for further proceedings in accordance with the instructions set forth in this Decision and Order.

(3) This is a final order of the Department of Energy from which any aggrieved party may seek judicial review. 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: June 30, 1999

(1)The Pantex Plant, located near Amarillo, Texas, is a DOE facility that assembles and disassembles nuclear weapons.

(2)In the course of evaluating STAND's Appeal, we requested that the Appellant provide copies of two letters from Kaiser-Hill that it had cited in its Appeal. Each of these letters is on Kaiser-Hill letterhead and is addressed to the former Deputy Manager of DOE/RF, and each references earlier letters from the Deputy Manager regarding storage and shipment of plutonium and DOE/RF's plutonium stabilization and packaging system. We contacted DOE/RF to check whether either of the letters from the Deputy Manager might be responsive to STAND's request. DOE/RF confirmed that neither letter mentions the Pantex Plant, and therefore would not be responsive to the Appellant's FOIA request.