Case No. VFA-0504, 27 DOE ¶ 80,217

July 14, 1999

DECISION AND ORDER

OF THE DEPARTMENT OF ENERGY

Appeal

Name of Appellant: David A. Lappa

Date of Filing: June 16, 1999

Case Number: VFA-0504

On June 16, 1999, David A. Lappa (Appellant) filed an Appeal from final determinations issued to him on April 14, 1999, May 18, 1999, and May 19, 1999, by the Department of Energy’s Oakland Operations Office (Oakland). This Appeal, if granted, would require Oakland to release the withheld information and to grant the Appellant a fee waiver.

I. BACKGROUND

The Appellant submitted a FOIA request, which included a request for a fee waiver, to Oakland on December 17, 1998. On April 14, 1999, Oakland issued a determination letter denying the Appellant's request for a fee wavier. On May 18, 1999 and May 19, 1999, Oakland issued two determination letters releasing a number of responsive documents to the Appellant. However, Oakland withheld some information responsive to the Appellant's request under Exemption 5 of the FOIA. On June 16, 1999, the Appellant submitted the present Appeal, challenging Oakland's application of Exemption 5 to the withheld information, and denial of the fee waiver request.

II. ANALYSIS

The FOIA requires that federal agencies generally release documents to the public upon request. Following an appropriate request, the FOIA requires agencies to search their records for responsive documents. 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 Exemption 5 incorporates those “privileges which the Government enjoys under the relevant statutory and case law in the pre-trial discovery context.” Renegotiation Board v. Grumman Aircraft Engineering Corp., 421 U.S. 168, 184 (1975); see also NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 149 (1975) (Sears).

Oakland has withheld information under the deliberative process and attorney-client privileges. The Appellant challenges these withholdings, claiming that the withheld documents cannot be withheld under Exemption 5 because (1) they would normally be disclosed in litigation, (2) they are factual in nature, and (3) their authors eventually concurred with a final decision.

The Appellant's contentions are based upon inaccurate interpretations of the case law and overly broad and unsupported assumptions. Accordingly, we find that they are without merit. However, our review of Oakland's determination reveals that it is inadequate in several aspects.

Following an appropriate request, the FOIA requires agencies to search their records for responsive documents. After conducting a search for responsive documents under the FOIA, the statute requires that the agency provide the requester with a written determination notifying the requester of the results of that search and, if applicable, of the agency’s intentions to withhold any of the responsive information under one or more of the nine statutory exemptions to the FOIA. 5 U.S.C. § 552(a)(6)(A)(i). The statute further requires that the agency provide the requester with an opportunity to appeal any adverse determination. Id.

The written determination letter serves to inform the requester of the results of the agency’s search for responsive documents and of any withholdings that the agency intends to make. In doing so, the determination letter allows the requester to decide whether the agency’s response to its request was adequate and proper. It also provides this office with a record upon which to base its consideration of an administrative appeal.

It therefore follows that the agency has an obligation to ensure that its determination letters adequately describe the results of searches, clearly indicate which information was withheld, and specify the exemption(s) or privileges under which information was withheld. Burlin McKinney, 25 DOE ¶ 80,205 at 80,767 (1996). Without an adequately informative determination letter, the requester and the review authority must speculate about the adequacy and appropriateness of the agency’s determinations. Id.

While the determination letters issued to the Appellant clearly indicate that responsive documents were withheld under Exemption 5's deliberative process and attorney-client privileges, they did not sufficiently identify the documents they withheld. Nor did the determination letters indicate which of the two claimed privileges was applied to a particular document. Moreover, while the determination letters briefly explained why Oakland applied the deliberative process privilege, they did not explain why Oakland applied the attorney-client privilege. As a result, we are left without information that we need in order to determine whether Oakland’s application of Exemption 5 was adequate.

Accordingly, we shall remand this matter to Oakland with instructions to issue a new determination letter. The new determination letter must specifically identify all information that Oakland withheld under Exemption 5 and must clarify which information is being withheld under each claimed privilege. Moreover, the new determination letter must provide a sufficient explanation of its application of the attorney-client privilege.

The FOIA provides that fees be assessed in response to FOIA requests. 5 U.S.C. §552(a)(4). However, the FOIA also mandates that fees be waived or reduced "if disclosure of the information is in the public interest because it is likely to contribute significantly to public understanding of the operations or activities of the Government and is not primarily in the commercial interest of the requester." 5 U.S.C. §552(a)(4)(A)(3).

On April 14, 1999, Oakland issued a determination letter denying the Appellant's request for a fee waiver. Oakland's determination letter merely stated that the Appellant "did not meet the standard for a waiver of fees." The determination letter did not explain why Oakland had concluded that the appellant had not met the standard. Accordingly, we find that this determination was also inadequate. Therefore, we are remanding this portion of the Appeal as well. On remand, Oakland must either grant the Appellant's request for a fee waiver or explain why the Appellant does not meet the standard for a fee waiver.

III. Conclusion

Because we found Oakland's determinations were inadequate, we are remanding this matter to that office for further processing in accordance with the guidance and instructions set forth above.

It Is Therefore Ordered That:

(1) The Appeal filed by David A. Lappa on June 16, 1999, Case No. VFA-0504, is hereby granted in part as set forth in Paragraph (2) below, and denied in all other aspects.

(2) This matter is hereby remanded to the Oakland Operations Office for further processing in accordance with the guidance and instructions set forth above.

(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 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: July 14, 1999