Case No. VFA-0519, 27 DOE ¶ 80,235

September 30, 1999

DECISION AND ORDER

OF THE DEPARTMENT OF ENERGY

Appeal

Name of Petitioner: Jurgis Paliulionis

Date of Filing: August 24, 1999

Case Number: VFA-0519

On August 24, 1999, Jurgis Paliulionis (Paliulionis) filed an Appeal from a determination that the Chicago Operations Office (CH) of the Department of Energy (DOE) issued to him. The determination responded to a request for information filed under the Freedom of Information Act (FOIA), 5 U.S.C. § 552, as implemented by the DOE in 10 C.F.R. Part 1004. In the determination, CH released some responsive information to Paliulionis. This Appeal, if granted, would require the DOE to release the remainder of the withheld information.

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 exempt from disclosure under the FOIA shall nonetheless be released to the public whenever the DOE determines that disclosure is not contrary to federal law and in the public interest. 10 C.F.R. § 1004.1.

I. Background

On June 2, 1999, Paliulionis filed a FOIA request with CH seeking all documentation relating to the Argonne Group Rewards and Recognition Plan for the previous 12 month period. In a determination letter, CH indicated that it located the documents responsive to Paliulionis’ request. CH released most of the responsive information. However, it withheld the specific amounts of incentive awards paid to Argonne Group employees under Exemption 6. In his Appeal, Paliulionis challenges the withholding of the amounts of the awards.

II. Analysis

A. Exemption 6

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).

In order to determine whether information may be withheld under Exemption 6, an agency must undertake a three-step analysis. First, the agency must determine whether a significant privacy interest would be invaded by the disclosure of the record. If no privacy interest is identified, the record may not be withheld pursuant to either exemption. Ripskis v. Department of HUD, 746 F.2d 1, 3 (D.C. Cir. 1984) (Ripskis). Second, the agency must determine whether release of the document would further the public interest by shedding light on the operations and activities of the government. See Hopkins v. Department of HUD, 929 F.2d 81, 88 (2d Cir. 1991); Department of Justice v. Reporters Comm. for Freedom of the Press, 489 U.S. 749 (1989) (Reporters Committee); FLRA v. Department of Treasury Financial Management Service, 884 F.2d 1446, 1451 (D.C. Cir. 1989), cert. denied, 110 S. Ct. 864 (1990). Finally, the agency must weigh the privacy interests it has identified against the public interest in order to determine whether the release of the record would constitute a clearly unwarranted invasion of personal privacy (the Exemption 6 standard). Reporters Committee, 489 U.S. at 762-770. See generally Ripskis, 746 F.2d at 3.

1. Privacy Interest

CH determined that there was a privacy interest in the specific amounts of each incentive award given to Argonne Group employees. According to CH, releasing the specific dollar amounts of the awards “would allow direct comparisons between employee awards and almost certainly incite jealousy in those employees receiving lower awards.” See Determination Letter at 2.

We have consistently determined “that there is a real and substantial threat to employees’ privacy if personal identifying information . . . were released.” Painting & Drywall Work Preservation Fund, Inc., 15 DOE ¶ 80, 115 at 80, 537 (1987). See also Painting & Drywall Work Preservation Fund, Inc., 16 DOE ¶ 80, 102 at 80, 504 (1987); International Brotherhood of Electrical Workers, 13 DOE ¶ 80, 120 at 80, 569 (1985); International Brotherhood of Electrical Workers, 13 DOE ¶ 80, 104 at 80, 519 (1985). A similar privacy interest is involved in this case. It is important to note that Paliulionis has already been provided with a document listing the names of those employees in the Argonne Group who received incentive awards. If a document listing the dollar amounts of those awards were disclosed to the requester, the awards could be directly linked to the employees who received them. Release of this material would reveal considerable personal financial information about each Argonne Group employee given an incentive award and would certainly constitute a serious invasion of personal privacy. In addition, Courts have similarly found that even releasing favorable information about an employee, such as details of an employee’s outstanding performance evaluation, can be protected on the basis that it “may well embarrass an individual or incite jealousy among co-workers.” See Ripskis v. Hud, 746 F.2d 1, 3 (D.C. Cir. 1984). These considerations govern our determination. We therefore find a significant privacy interest in the amounts of the incentive awards.

2. Public Interest in Disclosure

Having established the existence of a privacy interest, the next step is to determine whether there is a public interest in disclosure. The Supreme Court has held that there is a public interest in disclosure of information that “sheds light on the operations and activities of the government.” 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 his Appeal, Paliulionis stated that disclosure of the withheld information “would provide the [awards] process with a built-in system of checks and balances, which presently is lacking and would inspire others to follow suit . . . [T]he open process would have an adverse effect on the ability to manipulate and abuse the system, such as granting unjustified and gratuitous awards.” See Appeal Letter at 2.

We find that there is a minimal public interest in the release of the withheld information. Paliulionis has not demonstrated what public interest would be served by releasing the specific values of employees’ incentive awards. Simply alleging that disclosure of this information might affect the ability to manipulate and abuse the awards system does not justify releasing personal information. See Hopkins v. Department of Housing and Urban Dev., 929 F.2d 81, 88 (2d Cir. 1991) (invocation of a legitimate public interest cannot itself justify the release of personal information)). Therefore, we agree with CH and find that there is a minimal public interest in the disclosure of the responsive material.

3. The Balancing Test

In determining whether the disclosure of the amounts of the incentive awards could reasonably be expected to constitute an unwarranted invasion of personal privacy, 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).

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 specific amounts of the incentive awards. Therefore, we find that the public interest in disclosure of the withheld material is outweighed by the real and identifiable privacy interests of the Argonne Group employees.

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). We find that CH properly segregated and released all responsive information by withholding only the dollar amounts for each incentive award given.

It Is Therefore Ordered That:

(1) The Appeal filed by Jurgis Paliulionis on August 24, 1999, OHA Case No. VFA-0519, is hereby denied.

(2) This is a final order of the Department of Energy of 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 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: September 30, 1999