Case No. VFA-0510, 27 DOE ¶ 80,226

August 31, 1999

DECISION AND ORDER

OF THE DEPARTMENT OF ENERGY

Appeal

Name of Petitioner:Sowell Todd Lafitte Beard and Watson LLC

Date of Filing: August 3, 1999

Case Number: VFA-0510

On August 3, 1999, Sowell Todd Lafitte Beard and Watson LLC (Sowell) completed the filing of 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 Authorizing Official of the Savannah River Operations Office of the DOE (Authorizing Official) issued that determination on June 25, 1999. This Appeal, if granted, would require that the DOE release information withheld pursuant to FOIA Exemptions 5, 6 and 7(C). 5 U.S.C. § 552(b)(5), (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 November 19, 1998, Sowell filed a request with the DOE for all information concerning the Westinghouse Savannah River Company's voluntary separation program. The Authorizing Official released several documents in their entirety, but withheld names, social security numbers, and home addresses of non-federal employees from 15 documents pursuant to FOIA Exemption 6. The Authorizing Official also stated in his determination letter that the DOE's Office of Inspector General (OIG) deleted information from four of the documents pursuant to FOIA Exemptions 5, 6 and 7(C).

II. Analysis

In its Appeal, Sowell states that the DOE should release the withheld information. Specifically, Sowell states that release of the information will reveal whether the DOE had properly performed its statutory duties regarding a DOE voluntary separation program at the Savannah River Operations Office.

A. Exemption 5

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 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) (footnote omitted). The courts have identified several privileges that fall under this definition. These privileges include the attorney-client privilege, the attorney work-product privilege and the executive "deliberative process" or "predecisional" privilege. Coastal States Gas Corp. v. Department of Energy, 617 F.2d 854, 862 (D.C. Cir. 1980) (Coastal States). Only the "deliberative process" privilege is at issue here.

The "deliberative process" privilege of Exemption 5 permits the government to withhold documents that reflect advisory opinions, recommendations, and deliberations comprising part of the process by which government formulates decisions and policies. Sears, 421 U.S. at 150. The ultimate purpose of the exemption is to protect the quality of agency decisions by promoting frank and independent discussion among those responsible for making governmental decisions. Sears, 421 U.S. at 151. See EPA v. Mink, 410 U.S. 73, 87 (1973) (quoting Kaiser Aluminum & Chem. Corp. v. United States, 157 F. Supp. 939, 946 (Ct. Cl. 1958)) (Mink).

In order for Exemption 5 to shield a document, it 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 (D.C. Cir. 1971).

The OIG, pursuant to Exemption 5, redacted handwritten notes from three documents. We reviewed these handwritten notes and found that they contain some mathematical calculations and editorial comments made during OIG's investigation of the matter. We find that this redacted information is both predecisional and deliberative pursuant to Exemption 5. Furthermore, these redactions do not contain any segregable factual information. Accordingly, we must deny this portion of Sowell's appeal.

B. Exemption 6 and 7(C)

The majority of the documents contained information withheld pursuant to Exemption 6 alone. As stated above, these redactions included names, social security numbers, and home addresses of non-federal employees. Only three documents contained information withheld pursuant to both Exemptions 6 and 7(C). In these three documents the OIG redacted names and other information that could be used to identify individuals.

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).

1. The Privacy Interest

As stated above, the majority of documents contained information withheld pursuant to Exemption 6 alone. With regard to these documents, the Authorizing Official determined that there was a privacy interest in the identity of Westinghouse employees and other contractor employees, their social security numbers and home addresses. We agree that substantial privacy interests exist in this type of personal information concerning private citizens due to the great potential that a commercial entity could misappropriate names and addresses for commercial purposes. The courts have also reached this conclusion. See Sheet Metal Workers v. Department Of Veterans Affairs, 135 F.3d 891 (3rd Cir. 1998) (the disclosure of names, social security numbers, or addresses of government contractor employees would constitute an unwarranted invasion of personal privacy); Painting and Drywall Work Preservation Fund v. Department of Housing and Urban Dev., 936 F.2d 1300 (D.C. Cir. 1991) (the release of contractor employees names and addresses would constitute a substantial invasion of privacy). Therefore, we find that there is a substantial privacy interest in the identities of contractor employees, their social security numbers and home addresses.

We will now consider the OIG's redactions made pursuant to both Exemptions 6 and 7(C). The documents withheld pursuant to Exemptions 6 and 7(C) were compiled pursuant to an investigation of the voluntary separation program at Savannah River. In prior cases in which both Exemption 6 and 7(C) were invoked, we stated that 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). If we find that the OIG compiled three documents for law enforcement purposes, any of these documents that satisfy 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 compiled pursuant to an investigation of the voluntary separation program at Savannah River. Consequently, the OIG documents at issue were compiled for a law enforcement purpose.

We find that the OIG's redactions pursuant to both Exemptions 6 and 7(C) were proper. The OIG redacted the names of individuals who were contacted in the OIG's investigation. 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). We agree that there is a privacy interest for these individuals providing information to government investigators.

2. The Public Interest

Having established the existence of a privacy interest, the next step is to determine whether there is a public interest in disclosure of the information. The Supreme Court has held that there is a public interest in disclosure of information that “sheds light on an agency’s performance of its statutory duties.” Reporters Committee, 489 U.S. at 773. See Marlene Flor, 26 DOE ¶ 80,104 at 80,511 (1996) (Flor). The requester has the burden of establishing that disclosure would serve the public interest. Flor, 26 DOE at 80,511 (quoting Carter v. Department of Commerce, 830 F.2d 388 (D.C. Cir. 1987)). In its Appeal, Sowell states that release of the withheld information will reveal much regarding a DOE voluntary separation program at the Savannah River Operations Office.

We find that there is a minimal public interest in the release of the withheld information. Sowell has not demonstrated how the disclosure of specific names, addresses and social security numbers of non-federal employees or the names of OIG's investigative sources will reveal anything of importance regarding the voluntary separation program or how it would serve the public interest. Also, revealing the names of private citizens, their addresses and social security numbers will not contribute significantly to the public's understanding of government activities. Accordingly, we agree with the Authorizing Official and find that there is a minimal public interest in the disclosure of the material withheld pursuant to Exemption 6.

3. The Balancing Test

In determining whether documents may be withheld pursuant to either Exemption 6 or 7(C) courts have used a balancing test, weighing the privacy interests that would be infringed against the public interest in disclosure. Reporters Committee, 489 U.S. at 762 (1989); Safecard, 926 F.2d 1197 (D.C. Cir. 1991). We have concluded above that there is a substantial privacy interest at stake in this case. Moreover, we found that there is only a minimal public interest in the release of the names of the contractor employees or investigative sources. Therefore, we find that the public interest in disclosure of the information withheld pursuant to Exemption 6 or 7(C) is outweighed by the real and identifiable privacy interests of the named individuals.

C. Segregability

The FOIA requires that “[a]ny reasonably segregable portion of a record shall be provided to any person requesting such record after deletion of the portions which are exempt. . . .” 5 U.S.C. § 552(b) (1982). Since the Authorizing Official withheld only names, addresses and social security numbers, and the OIG also withheld only names and identifying information, we find that there is no reasonably segregable, factual, nonexempt material available for disclosure.

It Is Therefore Ordered That:

(1) The Freedom of Information Act Appeal Sowell Todd Lafitte Beard and Watson LLC filed on August 3, 1999 (Case Number VFA-0510) is hereby denied.

(2) 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: August 31, 1999