Case No. VFA-0507, 27 DOE ¶ 80,222

August 13, 1999

DECISION AND ORDER

OF THE DEPARTMENT OF ENERGY

Appeal

Name of Petitioner: ABC News

Date of Filing: July 14, 1999

Case Number: VFA-0507

On July 14, 1999, ABC News (hereinafter referred to as "ABC") filed an Appeal from a partial determination issued to it by the Department of Energy’s (DOE) Office of Inspector General (OIG). The OIG issued this determination in response to a request for information that ABC submitted under the Freedom of Information Act (FOIA), 5 U.S.C. § 552, as implemented by the DOE in 10 C.F.R. Part 1004. The Appeal, if granted, would require the OIG to release certain information that it withheld under the FOIA.

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 that set forth the types of information agencies are not required to release. Under the DOE’s regulations, a document that is exempt from disclosure under the FOIA shall nonetheless be released to the public whenever the DOE determines that disclosure is in the public interest. 10 C.F.R. § 1004.1.

I. Background

In its FOIA request, ABC sought access to documents relating to an OIG audit report regarding a grant to a university research foundation by the Oak Ridge Operations Office. In its determination, the OIG identified 38 documents as being responsive to ABC's request. Of these documents, 22 originated with the Oak Ridge Office, and that portion of ABC's request was referred to Oak Ridge for processing. Nine documents were released in their entirety, and seven were released with material withheld under Exemptions 5 or 6 of the FOIA. 5 U.S.C. § 552(b)(5) or (b)(6).

In its Appeal, ABC does not contest the OIG’s application of Exemption 6. Instead, it requests that we review the OIG's decision to withhold portions of Documents 16, 17, 19, 21 and 28 under Exemption 5. Specifically, ABC contends that this exemption "applies primarily to attorney-client

matters," and that since the withheld material does not fall under that category, it should be released. Appeal at 1. (1)

II. Analysis

Exemption 5 shields from mandatory disclosure “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). As such, the U.S. Supreme Court has construed it to "exempt those documents, and only those documents, that are normally privileged in the civil discovery context." NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 149 (1975) (Sears). Therefore, although this Exemption does encompass the attorney work-product and attorney-client privileges, it is well- settled that the Exemption also includes the deliberative process privilege. See, e.g., Sears; Coastal States Gas Corp. v. DOE, 617 F.2d 854 (D.C. Cir. 1980) (Coastal States). This privilege shields from mandatory disclosure communications that are “predecisional,” i.e., that were created during agency consideration of a proposed action, and "deliberative," in that they "make recommendations or expresses opinions on legal or policy matters." Vaughn v. Rosen, 523 F.2d 1136, 1143-44 (D.C. Cir. 1975). See also Darci L. Rock, 13 DOE ¶ 80,102 (1985); Texaco, Inc., 1 DOE ¶ 80,242 (1978). The privilege serves to insure open, uninhibited and robust debate of various options by eliminating the fear of disclosure of preliminary viewpoints. Coastal States, 617 F.2d at 866. Thus, by shielding predecisional deliberations from public scrutiny, the quality of final governmental decisions is enhanced. Sears, 421 U.S. 132, 149-51. Purely factual material, however, is generally not considered to be deliberative in nature, and must therefore be released unless it is inextricably intertwined with exempt material, or unless the selection of factual material for inclusion in the document reveals the agency's deliberative process. See, e.g., U.S. Solar Roof, 25 DOE ¶ 80,112 (1995).

In order to properly evaluate the OIG's application of Exemption 5, we conducted a de novo review of the withheld material. Document 16, entitled "Summary of Grants Closed in our Sample," is an OIG auditor's worksheet which summarizes the preliminary results of the audit team's review of certain "closed" grants. This document consists of spreadsheets detailing the planned and actual completion dates and other pertinent information for a number of grants administered by the Oak Ridge Office, and the auditor's notes concerning these grants. These notes include information concerning the status of funds and reporting, performance period dates, and the auditor's observations concerning each grant. The spreadsheets were provided to ABC without deletion. However, that portion of document 16 which comprises the auditor's notes was withheld in its entirety.

Our review of these notes leads us to conclude that portions of them are clearly predecisional and deliberative, and therefore exempt from mandatory disclosure. These notes were generated during an OIG review of the performance of the Oak Ridge Office concerning a number of grants, and include the preliminary impressions and opinions of the auditors about the grants. These opinions do not represent a final agency position concerning the performance of the Oak Ridge Office, but instead are a part of the process by which the auditors examined and evaluated various aspects of these grants. We therefore conclude that portions of these notes were properly withheld under Exemption 5. However, the notes also contain purely factual material, including the dates between which the grants "ran," the dates on which the final grant amounts were "drawn down," and whether or not final reports had been waived. This material is not inextricably intertwined with exempt material, and does not appear to reflect a deliberative process to the extent that release of this information would compromise that process. We find that this information is subject to the FOIA's mandatory disclosure provisions.

Document 17, entitled "Open Questions Resulting from grant files reviewed at the Oak Ridge Operations Office," consists of questions posed by the OIG auditors to Oak Ridge concerning various grants. These questions arose during the auditors' review of the grants, and concern actions taken by Oak Ridge during its administration of the grants. The redacted document released to ABC consists of the cover page and the various headings on subsequent pages. Since these questions are a part of the process by which the auditors collected information about how the grants were administered, they are predecisional and deliberative. Although this document does contain some factual material about the grants, that material was provided by the auditors as a basis for the questions that they posed. We therefore find that release of these facts would reveal the deliberative process of which these questions are a part. The OIG properly applied Exemption 5 in withholding portions of Document 17.

Document 19 consists of audit worksheets concerning grants that had been inactive for more than nine months. The auditors' opinions as to why these grants were still open and what needed to be done to close them were not released to ABC. The OIG properly withheld this predecisional and deliberative information under Exemption 5.

Document 21 consists of spreadsheets concerning these inactive grants. One of the 11 columns of information set forth in these spreadsheets was withheld from ABC. This column, entitled "Reasons for Inactivity," sets forth the auditors' preliminary opinions as to why the individual grants have been inactive. This information is predecisional and deliberative in that it sets forth the auditors' views as to why the grants had not been closed out and does not represent an agency finding on this issue. The OIG did not err in redacting this material from the copy of Document 21 provided to ABC. However, the final four pages of this document comprise the auditors' notes concerning the grants. These notes, like those in document 16, contain factual information concerning the amount of money expended pursuant to the grants. We do not find this factual information to be deliberative in nature, and we conclude that it should be released to ABC.

Document 28 is entitled "Individual Meetings with Grants Administration Officials (Contract Specialists) at the Oak Ridge Operations Office." This document is a memorialization of notes taken by the auditors during interviews with the individual Grants Administration Officials at Oak Ridge. The portion of this document that the OIG withheld under Exemption 5 is a paragraph at the bottom of page one and the top of page two entitled "Conclusion." This paragraph sets forth the auditors' opinion, based on the interviews, as to why the inactive grants had not been closed out, and their reaction to some of the statements made by the interviewees. The OIG properly withheld this predecisional and deliberative information under Exemption 5.

The fact that material requested falls within a statutory exemption does not necessarily preclude release of the material to the requester. The DOE regulations implementing the FOIA provide that “[t]o the extent permitted by other laws, the DOE will make records available which it is authorized to withhold under 5 U.S.C. § 552 whenever it determines that such disclosure is in the public interest.” 10 C.F.R. § 1004.1.

We find that release of the properly withheld material would not be in the public interest. Although the public does have a general interest in learning about the manner in which its government operates, we find that interest to be attenuated by the fact that the properly withheld portions of the documents are composed mainly of predecisional, nonfactual recommendations and opinions, and would therefore be of limited educational value. Any slight benefit that would accrue from the release of the properly withheld material is substantially outweighed by the chilling effect that such a release would have on the willingness of DOE employees to make open and honest recommendations on policy matters. Accordingly, we conclude that release of this information would result in foreseeable harm to the interests that are protected by the deliberative process privilege. See FOIA Update, U.S. Department of Justice, Office of Information and Privacy (Spring 1994); Memorandum from Janet Reno, Attorney General, to Heads of Departments and Agencies (October 4, 1993) (in order to withhold material, agency must first determine that release would foreseeably harm basic institutional interests that underlie the deliberative process privilege).

III. Conclusion

For the reasons set forth above, we find that the OIG properly withheld portions of Documents 16, 17, 19, 21 and 28. However, because Documents 16 and 21 contain factual information that should have been provided to ABC, we will remand this matter to the OIG. On remand, the OIG should review these two documents in accordance with the guidelines set forth above, and issue a new determination to ABC.

It Is Therefore Ordered That:

(1) The Appeal filed by ABC News on July 14, 1999 is hereby granted as set forth in paragraph (2) below, and is in all other respects denied.

(2) This matter is hereby remanded to the Office of Inspector General for further proceedings consistent with the guidelines set forth in this Decision and Order.

(3) This is a final Decision and 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 located, or in the District of Columbia.

George B. Breznay

Director

Office of Hearings and Appeals

Date: August 13, 1999

(1)ABC also requests further information concerning the OIG's response as to Documents 32 and 35. The requester points out that in the determination letter, Document 32 is listed both as being released in its entirety and as being released with material withheld under Exemption 6. In addition, ABC states that Document 35 consists only of the cover page and preface of a report, and asks if the entire report will be released.

In a telephone conversation with Robert Palmer of this Office on August 5, 1999, Ruby Isla of the OIG said that document 32 was erroneously listed in the determination letter as being released in its entirety, and that the investigator who obtained document 35 for the OIG only requested the title page and the preface. These pages therefore constitute a complete release of all of the report that is in the OIG's possession.