Case No. VFA-0501, 27 DOE ¶ 80,214

July 1, 1999

DECISION AND ORDER

OF THE DEPARTMENT OF ENERGY

Appeal

Name of Petitioner:American Friends Service Committee

Date of Filing:June 4, 1999

Case Number: VFA-0501

On June 4, 1999, American Friends Service Committee (AFSC) filed an Appeal from a determination issued to it in response to a request for documents submitted 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 Assistant Inspector General for Inspections of the Office of Inspector General (AIG) issued that determination on May 3, 1999. This Appeal, if granted, would require that the DOE conduct a further search for responsive documents and release information withheld pursuant to FOIA Exemptions 6 and 7(C), 5 U.S.C. § 552(b)(6), (7)(C).

The FOIA requires that a federal agency generally release documents to the public upon request. The FOIA, however, lists nine exemptions that set forth the types of information that a federal agency may withhold at its discretion. 5 U.S.C. § 552(b); 10 C.F.R. § 1004.10(b). The DOE regulations further provide that the DOE shall nonetheless release to the public a document exempt from disclosure under the FOIA whenever the DOE determines that disclosure is in the public interest. 10 C.F.R. § 1004.1.

I. Background

On June 13, 1997 and March 3, 1998, the AFSC filed requests with the DOE for all documentation from 1969 to the present concerning the deposit, presence and/or impact of radioactive materials at the Industrial Excess Landfill site in Uniontown, Ohio. The AIG released two documents in their entirety, but withheld information in 13 documents pursuant to FOIA Exemptions 5, 6 or 7(C). 5 U.S.C. § 552(b).

II. Analysis

In its Appeal, AFSC states that the DOE should conduct a further search for responsive information since several DOE offices have yet to respond to the FOIA request. In addition, AFSC contends that the DOE applied Exemptions 6 and 7(C) in an overly broad manner. Specifically, AFSC states that the AIG should not have redacted information from the titles of three documents and other information, such as the name of a government agency and a discussion topic, that do not relate to personal privacy interests.

A. Adequacy of the Search

We have confirmed, as AFSC states in its appeal, that various DOE offices have not yet completed determinations concerning the releasability of responsive information. See Record of June 23, 1999 Telephone Conversation between Joan Ogbazghi, FOIA and Privacy Act Division, and Leonard M. Tao, OHA Staff Attorney. Since final determinations have not been made on a portion of the AFSC request, the adequacy of the search portion of this appeal is not ripe for our review. See 10 C.F.R. § 1004.8(a). Accordingly, we must dismiss that portion of this appeal as not yet ripe for adjudication.

B. Exemption 6 and 7(C)

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; Stone v. FBI, 727 F. Supp. 662, 663-64 (D.D.C. 1990) .

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). 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, the Office of Inspector General (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 Industrial Excess Landfill site in Uniontown, Ohio. Consequently, the OIG documents at issue were created for a law enforcement purpose.

By and large, the redactions that were made were proper. AIG redacted from the titles of three documents the names of individuals who were contacted in the OIG's investigation (redactions the AFSC incorrectly assumed contained releasable factual information). 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 providing information to government investigators. Safecard Services, Inc. v. S.E.C., 926 F.2d 1197 (D.C. Cir. 1991) (Safecard); KTVY-TV v. United States, 919 F.2d 1465, 1469 (10th Cir. 1990) (KTVY- TV) (finding that withholding identity necessary to avoid harassment of individual); Cucarro v. Secretary of Labor, 770 F.2d 355, 359 (3d Cir. 1985) (Cucarro); James L. Schwab, 21 DOE ¶ 80,117 at 80,556 (1991); Lloyd R. Makey, 20 DOE ¶ 80,109 (1990). The AIG states that the individuals named in the responsive documents have a privacy interest in remaining "free from intrusions into their professional and private lives." We agree that there is a privacy interest for these individuals providing information to government investigators.

However, in our review, we have discovered a repeated deletion that is questionable. There are several instances, such as in Document 15, where the AIG redacted the name of a government agency. It is not clear what connection the name of the government agency has to the privacy interest of any of the named individuals. Accordingly, we must remand this matter to the AIG for a new determination to either release the name of the government agency or provide an adequate justification for its withholding.

It Is Therefore Ordered That:

(1) The Freedom of Information Act Appeal the American Friends Service Committee filed on June 4, 1999 (Case Number VFA-0501) is hereby granted as set forth in paragraph (2) below, and is denied in all other respects.

(2) This matter is hereby remanded to the Assistant Inspector General for Inspections of the Office of Inspector General of the Department of Energy for further action in accordance with the directions set forth in this Decision.

(3) 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. § 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 1, 1999