Case No. VFA-0518, 27 DOE ¶ 80,232

September 22, 1999

DECISION AND ORDER

OF THE DEPARTMENT OF ENERGY

Appeal

Name of Petitioner: Technology & Management Services, Inc.

Date of Filing: August 20, 1999

Case Number: VFA-0518

On August 20, 1999, Technology & Management Services, Inc. (TMS) filed an Appeal from a determination issued to it by the Assistant Inspector General for Investigations, Office of the Inspector General (the OIG). The OIG issued this determination in response to a request for information 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 additional information to TMS.

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

I. Background

In its request, TMS sought access to “any and all statements, memoranda or other documentation which refers to" (i) allegations that TMS or any of its employees has charged the DOE improperly pursuant to any contract being performed for the DOE, (ii) Roger Legassie or any other employee in connection with a specified contract or subcontract, (iii) Barbara McKee, SoBran, Inc., or SoBran, Inc. President Amos Otis in connection with the allegations referred to above, and (iv), OIG guidelines and procedures for verifying that allegations of impropriety are factually based and made in good faith.

The OIG conducted a search and identified 120 documents as responsive to TMS' request. Twenty-five of these documents were released in their entirety, fifty-one

documents were released with portions withheld pursuant to Exemptions 6 and 7(C) of the FOIA, and four were released with portions withheld pursuant to Exemptions 5, 6 and 7(C). (1)

Under Exemption 5, "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" may be withheld. 5 U.S.C. § 552(b)(5). In applying Exemption 5, the OIG stated that this provision "protects the deliberative and consultative process of government," and that the material withheld under the exemption is "predecisional deliberative data that was subject to further review and possible change." OIG Determination at 2. Exemption 6 protects from mandatory disclosure “personnel and medical and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy . . . ” 5 U.S.C. § 552(b)(6). Exemption 7(C) provides that “records or information compiled for law enforcement purposes” may be withheld from disclosure, but only to the extent that the production of such documents “could reasonably be expected to constitute an unwarranted invasion of personal privacy . . . ” 5 U.S.C. § 552(b)(7)(C). The OIG stated that it withheld "[n]ames and information that would tend to disclose the identity of . . . subjects, witnesses, sources of information, and other individuals" involved in the OIG's investigation of the allegations against TMS. OIG determination at 2. The OIG added that these individuals are entitled to privacy protections under Exemptions 6 and 7(C) so that they will be free from possible "harassment, intimidation and other personal intrusions." Id.

In its Appeal, TMS contests the adequacy of the OIG's determination with respect to Exemption 5, and the OIG's application of Exemptions 5, 6 and 7(C) in withholding portions of the responsive documents. TMS further contends that, even if the withheld material is subject to these exemptions, the information should be released in the public interest. (2)

II. Analysis

A. Exemption 5

1. Adequacy of the Determination

It is well established that a FOIA determination must contain a reasonably specific justification for withholding material pursuant to an FOIA request. See Deborah L. Abrahamson, 23 DOE ¶ 80,147 (1993). A specific justification is necessary to permit the requesting party to prepare a reasoned appeal and to allow this Office to perform an effective review of the initial agency determination. We have not hesitated to remand a determination letter where the issuing office has not explained its reasons for applying an exemption, but has instead merely restated the language of the exemption. See, e.g., Richard W. Miller, 25 DOE ¶ 80,120 (1995).

In its appeal, TMS argues that the OIG's justification for withholding material under Exemption 5 is "totally conclusory," and "contains nothing more than the test to be applied with regard to . . . Exemption 5." We do not agree. In the determination, the OIG does state that the withheld material is predecisional and deliberative, which is essentially the standard for applying this exemption, but it then goes to include its reason for this finding, i.e., that the information did not set forth a final agency position on the issues at hand, but was instead "subject to further review and possible change." Avoiding the confusion that might result from the release of preliminary or tentative agency opinions and findings is a legitimate justification for applying Exemption 5. We conclude that the OIG adequately explained its determination with respect to this exemption.

2. The OIG's Application of Exemption 5

As we stated previously, 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 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). Accordingly, the exemption has been held to encompass the attorney work-product, attorney-client and deliberative process privileges. See, e.g., Sears; Coastal States Gas Corp. v. DOE, 617 F.2d 854 (D.C. Cir. 1980) (Coastal States). The deliberative process privilege shields from mandatory disclosure communications that are “predecisional,” i.e., that were made 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. at 149-51.

In its appeal, TMS contends that the material withheld from documents 4, 27, 82 and 92 is neither predecisional nor deliberative, and that the DOE has waived any applicable privilege under Exemption 5. Document 4 is a Memorandum of Investigative Activity dated July 30, 1997, that was authored by an OIG investigator. This document consists of the investigator's notes of an interview with an individual concerning one of the allegations against TMS, and the investigator's preliminary opinions as to the validity of the allegations. Document 27 is a letter dated February 10, 1997, from a DOE employee to an Assistant U.S. Attorney for the Eastern District of Virginia. Document 82 is a memorandum from the OIG investigator to an OIG official setting forth the investigator's recommendation as to whether the investigation should continue. Document 92 is a Memorandum of Investigative Activity dated December 2, 1997. In each case, the material withheld from these documents under Exemption 5 is nonfactual in nature and is composed of the preliminary opinions of the individuals concerned as to the validity of the allegations or as to the future course of the investigation. The withheld material is predecisional in that it was generated prior to any DOE finding concerning the allegations against TMS, and deliberative in that it sets forth the opinions and recommendations of the investigator and other individuals.(3)

Finally, we reject TMS' contention that the OIG has waived any privilege under Exemption 5. This argument is based on Washington Post Co. v. Department of the Air Force, 617 F. Supp. 602 (1985), in which the United States District Court for the District of Columbia held that by releasing a summary that presented, in outline form, the entire substantive content of a document, the Air Force waived any Exemption 5 privilege with respect to that document. That case is inapposite to the matter before us, since the documents released to TMS in redacted form do not constitute summaries that set forth the entire substantive contents of the original documents. We find that the OIG has not waived privilege with respect to these documents.

3. The Public Interest

The fact that this material 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 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 withheld portions of these communications 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 withheld material is far 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 the withheld information would result in foreseeable harm to the interests that are protected by the deliberative process privilege. See 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). For these reasons, we find that the OIG properly applied Exemption 5 in this matter.

B. Exemptions 6 and 7(C)

We have previously considered cases in which both Exemption 6 and 7(C) were invoked and we have stated that in such cases we would analyze the withholding only under Exemption 7(C), the broader of the two exemptions. See, e.g., Valley Times, 23 DOE ¶ 80,154 (1993) (Valley Times). Exemption 6 allows an agency to withhold information if its release would constitute a “clearly” unwarranted invasion of personal privacy.

5 U.S.C. § 552(b)(6); 10 C.F.R. § 1004.10(b)(6). By contrast, Exemption 7(C) allows an agency to withhold records or information compiled for law enforcement purposes, if its release could constitute a “reasonably” unwarranted invasion of personal privacy. 5 U.S.C. § 552(b)(7)(C); 10 C.F.R. § 1004.10(b)(7)(iii). In such cases, it is only necessary to address the application of Exemption 7(C) to the withheld material since the information was compiled for law enforcement purposes and any material which satisfies Exemption 7(C)’s “reasonableness” standard will be protected. Similarly, information not protected by Exemption 7(C) will be unable to satisfy Exemption 6's more restrictive requirement that the release of the information constitutes a “clearly” unwarranted invasion of personal privacy.

The threshold test under Exemption 7(C) is whether the withheld 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 Exemption 7 “law enforcement” exception to mandatory release of information under the FOIA encompasses compliance with both civil and criminal statutes. Rural Housing Alliance v. Department of Agriculture, 498 F.2d 73, 81 & n.46 (D.C. Cir. 1974). The OIG is charged with investigating and correcting waste, fraud or abuse in programs administered or financed by the DOE. See Inspector General Act of 1978, codified as amended at 5 U.S.C. App. §§ 2(1)-(2), 4(a)(1), (3)-(4), (d), 6(a)(1)-(4), 7(a), 9(a)(1)(E). The documents provided to TMS in redacted form were generated in the course of an OIG investigation into allegations of improper conduct by a DOE contractor. The documents were therefore compiled for law enforcement purposes within the meaning of Exemption 7(C).

In determining whether the release of law enforcement records could reasonably be expected to constitute an unwarranted invasion of personal privacy, the courts have used a balancing test which weighs the privacy interests that would be infringed against the public’s interest in disclosure. Department of Justice v. Reporters Committee for Freedom of the Press, 489 U.S. 749, 762 (1989). In this case, TMS maintains that disclosure of the information withheld under Exemptions 6 and 7(C) would further the public interest in "maintaining the sanctity of the governmental investigatory process." Appeal at 1. The firm claims that the DOE's investigation of TMS was abusive in that it took an inordinately lengthy amount of time to complete and interfered with its contractual relationships, while resulting in no civil or criminal prosecutions. TMS therefore suggests that the information is needed in order to expose official misfeasance or malfeasance in the investigatory process.

At the outset, we note that the names of the OIG employees who participated in the investigation were provided to TMS. The information that the firm seeks would identify witnesses who spoke to the OIG about the allegations against TMS, and others who cooperated in the investigation. While we agree with TMS that the public has a significant interest in maintaining the integrity of the government's investigatory processes, we find that this goal may best be achieved by withholding information of this kind, not by releasing it. Revealing the identity of individuals who cooperate with OIG investigations could subject the individuals to harassment, retaliation, or invasions of privacy. See, e.g., Valley Times, 23 DOE at 80,632; James L. Schwab,

21 DOE ¶ 80,117 (1991) . Potential witnesses in future OIG inquiries would therefore be much less likely to cooperate if they knew that their identities could later be revealed to the subject of the investigation. Moreover, release of the withheld information, by itself, would add little to the public's understanding of the investigatory process. While TMS could conceivably use the information to gain some insight into how the investigation was conducted, we find that interest to be outweighed by the very serious impact that disclosure could have on the OIG's ability to obtain needed information in future investigations. We therefore conclude that the OIG properly applied Exemptions 6 and 7(C) in withholding the information in question.

It Is Therefore Ordered That:

(1) The Freedom of Information Act Appeal filed by Technology & Management Services on August 20, 1999 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 located, or in the District of Columbia.

George B. Breznay

Director

Office of Hearings and Appeals

Date: September 22, 1999

(1)The remaining forty responsive documents were generated by other offices and agencies, and the documents were referred to these offices and agencies for review.

(2)TMS also requests that it be provided with a Vaughn index, i.e. an index identifying each responsive document, the exemption under which it is being withheld and an explanation of why that exemption is applicable. On previous occasions, we have stated that, although such an index may be required of the agency when it is in litigation with a FOIA requester, this degree of specificity is not required at the administrative stages of a FOIA request. See, e.g., Rockwell International, 21 DOE ¶ 80,105 at 80,527 (1991); Natural Resources Defense Council, 20 DOE ¶ 80,145 at 80,627 (1990). At the administrative level, determinations need only include a general description of the withheld material and a statement of the reason for the withholding. Therefore, we reject the Appellant's request for a Vaughn index.

(3)Because of a settlement agreement that was reached between the DOE and TMS on January 11, 1999, no final OIG report was issued. However, OIG has informed us that such a report would have been issued in the absence of a settlement.