Case No. VFA-0516, 27 DOE ¶ 80,229

September 7, 1999

DECISION AND ORDER

OF THE DEPARTMENT OF ENERGY

Appeal

Name of Petitioner:David E. Ridenour, P.E.

Date of Filing: August 9, 1999

Case Number: VFA-0516

David E. Ridenour, P.E., filed an Appeal from a determination the Department of Energy Office of Inspector General (DOE/IG) issued to him on July 8, 1999. The determination responded to a March 27, 1998 request Ridenour submitted to the DOE. If we were to grant this Appeal, we would require DOE/IG to release, in their entirety, all documents responsive to Ridenour's request.

The FOIA requires that documents held by federal agencies generally be released to the public upon request. The FOIA, however, lists nine exemptions that set forth the types of information that may be withheld at the discretion of the agency. 5 U.S.C. § 552(b). Those nine categories are repeated in the DOE regulations implementing the FOIA. 10 C.F.R. § 1004.10(b). The DOE regulations further provide that documents exempt from mandatory 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

Ridenour requested from the DOE “a copy of the directives under which the DOE IG conducts and/or reports the results of IG investigations. These documents are usually referred to as the 'IG Investigations Manual(s)' or 'IG Investigative Procedures.'” Letter from David E. Ridenour, P.E., to Abel Lopez, Director, FOIA/Privacy Act Division, DOE (March 27, 1998). In its response to Ridenour's request, the DOE/IG identified 41 documents as responsive to the request. These documents, together, comprise the “Investigations Manual” of the DOE/IG's Office of Investigations. Of the 41 documents, 27 were released to Ridenour in their entirety, while 14 were released with material redacted. Some of the redacted information orginated at other federal agencies or the DOE Office of General Counsel and was therefore referred to those agencies and that office for review. The other redacted information was withheld by the DOE/IG under FOIA Exemption 7(E). In his Appeal, Ridenour asserts that DOE/IG should release all of the redacted information.

II. Analysis

First, regarding the information that the DOE/IG has referred elsewhere for review, any issues arising are not yet ripe for review. The Office of Hearings and Appeals has jurisdiction to consider Freedom of Information Act Appeals when “the Authorizing Officer has denied a request for records in whole or in part or has responded that there are no documents responsive to the request . . . or when the Freedom of Information Officer has denied a request for waiver of fees.” 10 C.F.R. § 1004.8(a).

This means that we do not exercise FOIA Appeal jurisdiction if a DOE office has not issued a determination in response to a FOIA request. Thus, to the extent that the DOE/IG has simply referred Ridenour's request to other offices, it has not issued a determination that Ridenour can appeal to the OHA. We do have jurisdiction over the DOE/IG's determination to withhold information under FOIA Exemption 7(E). We review this determination below.

A. Exemption 7(E) of the FOIA

Exemption 7(E) of the FOIA protects “records or information compiled for law enforcement purposes . . . [that] would disclose techniques and procedures for law enforcement investigations or prosecutions, or would disclose guidelines for law enforcement investigations or prosecutions if such disclosure could reasonably be expected to risk circumvention of the law.” 5 U.S.C. § 552(b)(7)(E).

The threshold test for withholding information under Exemption 7 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, 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). Thus, we conclude that the “Investigations Manual” of the DOE/IG's Office of Investigations was compiled for law enforcement purposes.

Exemption 7(E) contains two clauses, each of which provides a separate basis for withholding. The first exempts information that “would disclose techniques and procedures for law enforcement investigations or prosecutions” and the second covers information that “would disclose guidelines for law enforcement investigations or prosecutions if such disclosure could reasonably be expected to risk circumvention of the law.” 5 U.S.C. § 552(b)(7)(E). In its response to Ridenour's FOIA request, the DOE/IG relied upon the first clause as the basis for withholding certain information.

The first clause of Exemption 7(E), unlike the second clause and some other FOIA exemptions, does not require a particular harm (such as circumvention of the law) be cited in order to justify its application. See Fisher v. Department of Justice, 772 F. Supp. 7, 12 n.9 (D.D.C. 1991) (“Law enforcement agencies' 'non-investigatory' law enforcement records, to the extent that they can be fairly regarded as reflecting techniques or procedures, are now entitled to categorical protection under Exemption 7.”) Nonetheless, only techniques or procedures that are not well known to the public are entitled to Exemption 7(E) protection. See Albuquerque Publishing Co. v. Department of Justice, 726 F. Supp. 851, 858 (D. Ariz. 1989) (“[T]he government should avoid burdening the Court with an in camera inspection of information pertaining to techniques that are commonly described or depicted in movies, popular novels, stories or magazines, or on television. These would include, it would seem to us, techniques such as eavesdropping, wiretapping, and surreptitious tape recording and photographing. Instead, the government should release such information to plaintiff voluntarily.”).

Applicable to material exempt under the FOIA generally, but particularly important with regard to Exemption 7(E), is the provision of the DOE regulations specifying that the DOE should release to the public material exempt from mandatory disclosure under the FOIA if the DOE determines that federal law permits disclosure and it is in the public interest. 10 C.F.R. § 1004.1. In applying this regulation, we note that the Department of Justice has reviewed its administration of the FOIA and adopted a "foreseeable harm" standard for defending FOIA exemptions. Memorandum from the Attorney General to Heads of Departments and Agencies, Subject: The Freedom of Information Act (October 4, 1993) (Reno Memorandum). The Reno Memorandum indicates that whether or not there is a legally correct application of an exemption, it is the policy of the Department of Justice to defend the assertion of a FOIA exemption only in those cases where the agency articulates a reasonably foreseeable harm to an interest protected by that exemption. See Reno Memorandum at 1, 2.

The Department of Justice has provided federal agencies with the following guidance regarding the relevance of the Reno Memorandum to the application of Exemption 7(E):

Exemption 7(E) is characteristically an exemption that protects, in the words of Attorney General Reno's FOIA Memorandum of October 4, 1993, “only a governmental interest.” As Attorney General Reno's FOIA Memorandum points out, such information is particularly well suited for discretionary disclosure when such disclosure can be made without “foreseeable harm.” The very broad, nonharm-based nature of Exemption 7(E)'s first clause leaves much room for discretionary disclosure upon application of the “foreseeable harm” standard.

Office of Information and Privacy, U.S. Department of Justice, Justice Department Guide to the Freedom of Information Act 406-07 (1998) (pre-publication copy).

B. Application of Exemption 7(E) to Information Withheld by DOE/IG

We have examined the information withheld by the DOE/IG under Exemption 7(E) and find that much of it does not meet the above requirements for application of the exemption. For example, information on page 2-4 of Document 9 describes the provisions of a federal statute. We cannot see how this information could possibly disclose a law enforcement technique or procedure, and certainly information contained in a federal statute, if not well known publicly, is readily available to the public. Similar information is contained on page 2-C-1 of the same document; page 5-F-2 of Document 15; pages 7-36 and 7-38 through 7-48 of Document 19; and pages 8-18, 8-21, 8-A-1, and 8-A-2 of Document 21.

Other information, though arguably disclosing a law enforcement technique or procedure, such as those concerning use of deadly force (page 3-22 of Document 11), oaths (pages 7-12 and 7-13 of Document 19), and Miranda-type warnings (page 7-D-1 through 7-F-1 of Document 19), fall into the category of “techniques that are commonly described or depicted in movies, popular novels, stories or magazines, or on television,” Albuquerque Publishing, 726 F. Supp. at 858, are well known to the public, and are therefore outside the protection of Exemption 7(E).

Finally, to the extent that the information withheld by the DOE/IG would disclose techniques and procedures for law enforcement investigations or prosecutions, and those techniques or procedures are not well known to the public, the information should nonetheless be discretionarily released by the DOE/IG in accordance with the Reno Memorandum unless DOE/IG can articulate a reasonably foreseeable harm to an interest protected by Exemption 7(E) that would result from release of the information. Examples of information that might be safely released relate to employee appearance and grooming (Document 11, page 3-4), firearm care and safety (Document 11, pages 3-12, 3-18, 3-20, 3-21, 3-24, 3-25), general discussion of affidavits and their admissibility in administrative and court proceedings (Document 19, page 7-9), the standard format for reports of investigation, administrative reports to management, and office of investigations weekly OIG activity reports (Document 27, pages 11-5 through 11-8, 11-A-1, and 11-B-1; Document 31, page 13-J-1), and include a number of blank forms (e.g., Document 21, pages 8-E-2 and 8-L-1; Document 23, pages 9-A-1, 9-A-2, and 9-B-1; Document 29, page 12-A-2; Document 33, 14-I-1). We believe, however, that the DOE/IG is best equipped to review the information it has withheld, and articulate the reasonably foreseeable harm to an interest protected by Exemption 7(E) that would result from its release.

We recognize that the interests protected by Exemption 7(E) are extremely important ones and that material covered by the exemption should not be released lightly. Nevertheless, federal courts and the Office of the Attorney General have place significant limitations on the extent to which agencies can utilize this exemption. We therefore will remand this matter to the DOE/IG to (1) release the material we have found above would not qualify for withholding under Exemption 7(E), or to explain why that information may be withheld pursuant to the FOIA(1)and (2) with respect to that information covered by Exemption 7(E), release the material to the extent that doing so would not result in an articulable and reasonably foreseeable harm to an interest protected by Exemption 7(E). In all other respects, the present Appeal will be denied.

It Is Therefore Ordered That:

(1) The Appeal filed by David E. Ridenour, P.E., on August 9, 1999, Case No. VFA-0516, 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 Inspector General 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: September 7, 1999

(1)On remand, the IG should also consider whether it would be more appropriate to apply the second clause of Exemption 7(E), which protects “guidelines for law enforcement investigations or prosecutions,” to the material withheld, in view of the fact that the manual in several places (e.g., introduction to Document 19, page 8-9 of Document 21) refers to its contents as “guidelines.”