Case No. VFA-0502, 27 DOE ¶ 80,221

August 12, 1999

DECISION AND ORDER

OF THE DEPARTMENT OF ENERGY

Appeal

Name of Petitioner:Charles E. Washington

Date of Filing:July 1, 1999

Case Number: VFA-0502

On July 1, 1999, Charles E. Washington (the Appellant) completed the filing of an Appeal regarding four determinations that various offices of the Department of Energy’s headquarters location issued to him.(1) In those determinations, documents were released to the Appellant as a result of his four requests for information that the Appellant filed under the Freedom of Information Act (FOIA), 5 U.S.C. § 552, as implemented by DOE in 10 C.F.R. Part 1004. Some of these documents were released in whole, and some were redacted under Exemption 6 of the FOIA. In his Appeal, the Appellant asserts that DOE’s searches for records were inadequate and that its deletions were incorrect.(2) If granted, this Appeal would require the DOE to conduct further searches and/or release the withheld information.

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).

Background

Four information requests are involved in this Appeal. In a July 17, 1998 request for information, the Appellant sought personnel information regarding three named DOE employees. In an August 5, 1998 request for information, the Appellant sought personnel information regarding three DOE offices, the Office of Nonproliferation and National Security, the Office of Energy Intelligence and the Office of Counterintelligence. In an August 31, 1998 request for information, he sought information on civil rights practices and trends in these three DOE offices. In an October 29, 1998

request for information, he sought information on the ombudsman for DOE’s Office of Economic Impact and Diversity. He was issued determinations for each of these requests on November 9, 1998, March 31, 1999, May 27, 1999, and March 24, 1999, respectively.(3)

In his Appeal, the Appellant complains about the length of time the DOE offices took to issue their determinations. We note that the remedy for this delay was the Appellant’s right to sue in federal court; under law, 20 days after DOE received each FOIA request and the Appellant failed to receive a determination, he could have deemed his administrative remedies exhausted and utilized his right to a review in a district court of the United States. 5 U.S.C. § 552(a)(4)(B), (6)(A)(i), (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). However, on receiving each determination as described earlier, he was required to exhaust his administrative remedies by filing an appeal with this Office.(4)

Analysis

I. July 17, 1998 request

In his July 17, 1998 request for information, the Appellant sought personnel information held by DOE regarding three employees, Notra Trulock, John Bloodsworth, and Edward Curran. For the two latter employees, DOE possessed little such information because these employees were detailed from other agencies.(5) Regarding Notra Trulock, the Appellant received several documents in their entirety, but other documents regarding Mr. Trulock were redacted in part under FOIA Exemption 6. The following information was redacted: social security number, date of birth, birthplace, home address, home telephone number, private sector earnings, private sector supervisors’ names and phone numbers, references, and information regarding any prior employment problems, arrests or convictions, relatives employed in the federal government and federal debt. In addition, the DOE withheld the name of one of Mr. Trulock’s federal supervisors and the name of the Federal Bureau of Investigation supervisor of Mr. Curran who signed the Interagency Personnel Agreement detailing Mr. Curran to DOE.

The Appellant challenged the adequacy of the search by asserting that the search should have uncovered an “original version of Mr. Bloodsworth’s detail paperwork, not the one that was subsequently changed to make him Deputy Director of Counterintelligence.” See Letter from Appellant to Dawn L. Goldstein (June 24, 1999).

We have held that a FOIA request deserves a thorough and conscientious search for responsive documents. When we have found that a search was inadequate, we have consistently remanded the case and ordered a further search for responsive documents. E.g., Native Americans for a Clean Environment, 23 DOE ¶ 80,149 (1993); Marlene R. Flor, 23 DOE ¶ 80,130 (1993); Eugene Maples, 23 DOE ¶ 80,106 (1993). However, the FOIA requires that a search be reasonable, not exhaustive. "The standard of reasonableness that we apply to the agency search procedures does not require absolute exhaustion of 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).

We found out from the person responsible for this determination that there was only one detail agreement for Mr. Bloodsworth in the personnel files. Any draft agreements are typically destroyed once a final one was signed. See Record of Telephone Conversation between Marilyn Greene, HEPS, and Dawn L. Goldstein (July 8, 1999). However, Ms. Greene also believed that it was possible that the Office of Nonproliferation and National Security may have some responsive documents on file. See Email from Marilyn Greene to Dawn L. Goldstein (July 12, 1999). In addition, Ms. Greene believed that the persons responsible for hiring Mr. Curran and Mr. Bloodsworth may have a copy of a resume or similar responsive document utilized in the hiring process. See Record of Telephone Conversation between Dawn L. Goldstein and Marilyn Greene (July 9, 1999). Ms. Greene also informed us that she does not believe that Mr. Curran’s and Mr. Bloodsworth’s Standard Form 52s (which she stated the DOE possesses) were released, even though these items would be responsive. Finally, HR did not release Mr. Bloodsworth’s Interagency Personnel Agreement which it possesses. See Record of Telephone Conversation between Marilyn Greene and Dawn L. Goldstein; Email from Marilyn Greene to Dawn L. Goldstein (July 21, 1999). For these reasons, we are remanding this search to the DOE FOI and Privacy Acts Division so that it may coordinate a further search for relevant materials with the Office of Nonproliferation and National Security or any other offices that may hold responsive documents, such as the Executive Secretariat. All material relevant to the Appellant’s request must be identified.

In addition to the Appellant’s contention regarding the adequacy of the search for this request, the Appellant also appealed the withholding of various data from Mr. Trulock’s SF-171 that were redacted under Exemption 6 of the FOIA. 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) (Washington Post). All withheld information was located in the employee’s personnel file.

In order to determine whether an agency may withhold a record under Exemption 6, it must undertake a three-step analysis. First, the agency must determine whether or not a substantial privacy interest would be invaded by the disclosure of the record. If the agency identifies no privacy interest or a de minimis privacy interest is identified, the record may not be withheld pursuant to Exemption 6. 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 Department of Justice v. Reporters Committee for Freedom of the Press, 489 U.S. 749, 772-73 (1989) (Reporters Committee). Finally, the agency must weigh the privacy interests it identified against the public interest in order to determine whether release of the record would constitute a clearly unwarranted invasion of personal privacy. Ripskis, 746 F.2d at 3.

In applying the balancing portion of the Exemption 6 test, we must examine the types of information redacted, identify any privacy interest involved, and weigh that against any public interest in the material as defined by the Supreme Court. According to the Determination Letter, disclosure of the withheld information, which included his social security number, home address, home telephone number, private sector earnings, private sector supervisors’ names and phone numbers, references, and information regarding any prior employment problems, arrest or convictions, relatives employed in the federal government or federal debt, would result in a clearly unwarranted invasion of personal privacy of Mr. Trulock within the meaning of Exemption 6. The DOE withheld identifying information from the personnel records because of a concern that its release might allow someone to access Mr. Trulock’s financial and credit information, and subject him to unsolicited communications, embarrassment and other personal intrusions. In such circumstances, the courts have consistently recognized significant privacy interests. We find that Mr. Trulock has a privacy interest in the above-listed information. See Department of Defense v. Federal Labor Relations Auth., 510 U.S. 487, 497-501 (1994) (home addresses); Reporters Committee, 489 U.S. 747, 767 (1989) (criminal history); Barvick v. Cisneros, 941 F. Supp. 1015 (D. Kan. 1996) (home addresses and telephone numbers, dates of birth, maiden names, life insurance and annuity information); Oliva v. HUD, 756 F. Supp. 105 (E.D.N.Y. 1991) (social security numbers); Douglas L. Miller, 13 DOE ¶ 80,122 at 80,575 (1985) (reasons for leaving prior employment, criminal history) .

As noted above, once we identify a privacy interest, we must then determine whether there is a FOIA-defined public interest in release of the withheld material. In Reporters Committee, the Supreme Court greatly narrowed the scope of the public interest in the context of the FOIA. Justice Stevens, writing for the Court, distinguished between the general benefits to the public that may result from the release of information, and those benefits that Congress sought to provide the public when it enacted the FOIA. He found that in the FOIA context, the public interest in disclosure must be measured in terms of its relation to the FOIA's core purpose. Reporters Committee, 489 U.S. at 773. The Court identified the core purpose of the FOIA as "public understanding of the operations or activities of the Government." Id. at 775. Consequently, the Court held, only information that contributes significantly to the public's understanding of the operations or activities of the Government is within "the ambit of the public interest which the FOIA was enacted to serve." Id. The Court therefore found that unless the public would learn something directly about the workings of government from the release of a document, its disclosure is not "affected with the public interest." Id.; see also National Ass’n of Retired Employees v. Horner, 879 F.2d 873, 879 (D.C. Cir. 1989), cert. denied, 494 U.S. 1078 (1990).

The only public interest that the Appellant has suggested in the withheld information is that it may shed some light on whether Mr. Trulock is properly qualified for his current position and whether he was chosen fairly for his current position. The high-level position which he occupies is Director of the DOE Office of Intelligence. Although there is some level of public interest in the hiring process for this position, little of the withheld information would shed any light on this process. The employee’s social security number, date of birth, birthplace, home address, home telephone number, private sector earnings, private sector supervisors’ names and phone numbers, and amount of federal debt do not provide any information that may be used to determine the propriety of his hiring. However, we find that there is some small amount of public interest, due to the high-level nature of the position, in the employee’s references and information regarding any prior employment problems, arrests or convictions and relatives employed in the federal government.

The Exemption 6 balancing test presupposes that there is some public interest to balance. Thus, where there is no public interest to balance, as with the majority of information here, the privacy interest in non-disclosure, however small, must prevail. Maynard v. Central Intelligence Agency, 986 F.2d 547, 566 n.21 (1st Cir. 1993); Federal Labor Relations Auth. v. Department of Defense, 984 F.2d 370, 374 (10th Cir. 1993). Accordingly, we find that the DOE employee’s privacy interest in his social security number, date of birth, birthplace, home address, home telephone number, private sector earnings, private sector supervisors’ names and phone numbers, and amount of federal debt outweighs the lack of a FOIA-defined public interest, and that this information was properly withheld from disclosure. With regard to the remainder of the information, including his references, any prior employment problems, arrests or convictions and relatives employed in the federal government, we have examined this withheld information and found the privacy interest in this information to heavily outweigh the public interest in its release. Accordingly, we uphold all of HR’s withholdings, with the exception of two.

HEPS redacted Mr. Curran’s Federal Bureau of Investigation supervisor’s name from the Interagency Personnel Agreement detailing Mr. Curran to DOE. In addition, HEPS redacted the identity of Mr. Trulock’s supervisor at his federal position between 1995 and 1998 from a page of his SF-171. Ms. Greene was unable to tell us who had made these two deletions or why they had been made. A determination must adequately justify the withholding of a document by explaining briefly how the claimed exemption applies to the document. Paul W. Fox, 25 DOE ¶ 80,150 (1995).(6) Since this has not been done, and we are unable to infer the basis for the decision, we must remand this portion of the determination to HEPS to either release the withheld information or provide an adequate reason why the information is exempt from release.

II. August 5, 1998 request

In this request, the Appellant seeks various information about the Office of Nonproliferation and National Security, the Office of Energy Intelligence and the Office of Counterintelligence. On March 31, 1999, he received a response for ten out of the eleven items of his request. As stated above, a response to the eleventh item will be issued soon. Regarding the first ten, the Appellant argues that HEPS’ choice to provide statistical extracts to respond to his requests rather than releasing original documents was a violation of the FOIA.

We spoke to HEPS and found out that it chose to release information to the Appellant in the form of computer printouts and statistical extracts, rather than the underlying personnel documentation, because it would have redacted much of that documentation in order to withhold information exempt under Exemption 6. It also believed that it would be more straightforward to simply provide answers to the Appellant rather than all of the underlying data. See Record of Telephone Conversation between Marilyn Greene, HEPS, and Dawn L. Goldstein (July 1, 1999). We find that it was logical, reasonable and customer-friendly for HEPS to take this position. However, the Appellant now makes clear that he does wish to see all responsive documents, and under the FOIA, he is entitled to receive a copy of all responsive, non-exempt documents. Therefore, we will remand this portion of the case for a further determination. HEPS should either promptly release all additional, responsive information or explain the reason for the withholding of any such information.(7)

III. August 31, 1998 request

In this request, the Appellant requested information regarding DOE records about civil rights practices and trends since 1992 in the Office of Nonproliferation and National Security (NN), its predecessor organization, and subordinate organizations. In a May 27, 1999 response, he received nine documents in their entirety. Since the Appellant is generally appealing the adequacy of the searches that were done for the four requests, we contacted Tyrone Levi of the DOE’s Office of Economic Impact and Diversity (ED), who was responsible for coordinating the response to this request, to determine how the search was conducted.

Tyrone Levi informed us that all information of the type sought is kept within the Office of Civil Rights and a list of this information is kept in computer systems. The computer records showed that ED possessed nine responsive documents and all of these documents were then released to the Appellant. See Record of Telephone Conversation between Tyrone Levi, ED, and Dawn L. Goldstein (August 4, 1999). It appears that this search was forwarded to the appropriate office in possession of responsive documents. We therefore find that ED conducted an adequate search of records in its possession.

IV. October 29, 1998 request

In this request, the Appellant requested various items of information about the Ombudsman for ED, such as the position description, travel budget and number of cases handled. In the March 24, 1999 response, he received six documents with redactions. Some of the information requested by the Appellant was not found in ED’s search. The Appellant is appealing both the redactions and the adequacy of the search.

Regarding the redactions, for the same reasons discussed in the analysis of the July 17, 1999 request, we find that the redactions made from the current Ombudsman’s SF-171 form were correct. Regarding the adequacy of the search, the appellant has argued that DOE should possess three of the requested items.(8) First, no travel budget for the Ombudsman was discovered. Gloria Smith, who conducted ED’s search, informed us that the Ombudsman had no separate travel budget of her own, because her travel funds were part of ED’s general travel funds. This is a reasonable explanation for ED’s not possessing a travel budget for the Ombudsman. See Record of Telephone Conversation between Gloria Smith, ED, and Dawn L. Goldstein (July 7, 1999). Second, ED did not provide any records regarding the number of cases handled by the Ombudsman. Ms. Smith explained to us that the Ombudsman uses an informal, confidential process, and for this reason, no records regarding the number of cases handled are kept. Id. This also appears to be a reasonable explanation for the lack of records regarding this request. Third, ED did not provide information about other funding used by the Ombudsman. Ms. Smith explained that any other funding was not broken out in any records specifically for the Ombudsman and therefore this information could not be located. Id. This too appears to be a reasonable explanation for the lack of records on this issue. We therefore find ED’s search to have been adequate.

In conclusion, we are remanding this matter for new searches for responsive material by the FOI and Privacy Acts Division Office and HEPS in the limited respects noted above. In addition, HEPS must release some of the redacted information or provide a justification for its withholding. HEPS must also release additional non-exempt information responsive to the August 5, 1998 request. We have however upheld the adequacy of the searches by ED. Therefore, we will partially grant the Appeal.(9)

It Is Therefore Ordered That:

(1) The Appeal filed by Charles E. Washington on June 24, 1999, Case No. VFA-0502, 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 FOI and Privacy Act Division and to the Office of Headquarters and Executive Personnel Services 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: August 12, 1999

(1)1/ We note that due to the number of issues involved and the difficulty we encountered in obtaining required information, we requested a 15-work-day extension of time from Mr. Washington to issue our Decision and Order, which he granted. See Record of Telephone Conversation between Dawn L. Goldstein, Office of Hearings and Appeals, and Appellant (July 19, 1999).

(2)2/ In his Appeal, the Appellant also requested the names and titles of all employees providing or withholding data. In the four determination letters, the Appellant received the names and titles of the Authorizing or Denying Officials responsible for the determination.

(3)3/ The March 31, 1999 response to his August 5, 1998 request was a partial response, which made a determination regarding ten of the eleven items of his request. A final determination with regard to the eleventh document should be forthcoming. See Email from Marilyn Greene, Office of Headquarters and Executive Personnel Services (HEPS), to Dawn L. Goldstein (July 12, 1999). However, the March 31, 1999 determination is reviewable at this time with respect to the ten items for which the DOE issued a final determination.

(4)4/ The Appellant delayed in filing his appeal with respect to three of the DOE determinations beyond the thirty-day deadline specified in our regulations. See 10 C.F.R. § 1004.8(a). We note with regard to the November 9, 1998 determination, he was informed that he should send his appeal to the Office of Hearings and Appeals. Instead, he sent it to the office that issued the determination, the Office of Human Resources Management (HR). Although HR should have forwarded the appeal immediately to this Office, it failed to do so, creating a significant delay. The Appellant was again informed of the requirements to appeal a FOIA determination in the March 24, 1999 determination, yet he did not attempt to appeal the three determinations he had received by contacting this Office until June 9, 1999, when this Office received his appeal letter. (We note that the March 31, 1999 FOIA determination from HEPS failed to inform the Appellant of his appeal rights. See 10 C.F.R. § 1004.7(b)(4).) Even then, the Appellant failed to comply with the requirement to include the determination letters with his appeal until June 24, 1999, when the Office received copies of three of the four determinations from him. See 10 C.F.R. § 1004.8(b). (We received the fourth determination from the issuing office on July 1, 1999.) We have spoken with each of the three offices issuing determinations and none has suggested that its response to his appeal would be any different, if his appeal had been timely. Given the foregoing circumstances, we have chosen in our discretion to accept the appeal of these three determinations.

(5)5/ The Appellant contends in his Appeal that he was denied these two employees’ employment information and salaries because of Exemption 6. However, as explained, the DOE has not taken this exemption with regard to this information; instead it stated that it does not possess such information. The Appellant may be able to obtain these employees’ employment information and salaries by filing FOIA requests at their employing agencies.

(6)6/ In fact, the redaction of the name of Mr. Trulock’s federal supervisor may even have been an accident on HR’s part, since the November 9, 1998 determination letter only refers to the deletions of the names of private sector supervisors.

(7)7/ In addition, we inquired, regarding item number three of this request, as to why DOE released salary amounts for some detailees and not others. In addition, one of the answers to this item appears to be incorrect, because it listed a GS-15 employee having a salary of $53,276. The lowest GS-15 salary is well above that amount. Ms. Greene agreed to look into this matter, correct any errors and either release any additional responsive information DOE possesses or justify its withholding. See Record of Telephone Conversation between Marilyn Greene and Dawn L. Goldstein (July 23, 1999).

(8)8/ The Appellant also asserted in a June 21, 1999 letter to the Office of Hearings and Appeals that the name of the Ombudsman was withheld. That name, Shirley Thomas, in fact was provided to the Appellant in the determination of this request.

(9)9/ In addition, we note that the Appellant complained that the DOE offices responsible for the determinations failed to segregate non-exempt information. We do not find that to be the case. All the redactions made were to specific blocks of information within personnel records and therefore all non-exempt information appears to have been properly segregated.