Case No. VFA-0525, 27 DOE ¶ 80,237

October 13, 1999

DECISION AND ORDER

OF THE DEPARTMENT OF ENERGY

Appeal

Name of Appellant: BNFL, Inc.

Date of Filing: September 14, 1999

Case Number: VFA-0525

On September 14, 1999, BNFL, Inc. (Appellant) filed an Appeal from a final determination issued on August 11, 1999 by the Department of Energy’s Federal Energy Technology Center (the FETC). In that determination, the FETC released a number of documents in response to a June 28, 1999 Request for Information filed by the Appellant under the Freedom of Information Act (FOIA), 5 U.S.C. § 552(b), as implemented by the DOE in 10 C.F.R. Part 1004. In its determination, the FETC also withheld some responsive information under FOIA Exemptions 3, 4 and 5. This Appeal, if granted, would require FETC to release portions of the withheld information.

I. BACKGROUND

On June 28, 1999, the Appellant filed a Request for Information with DOE Headquarters’ Freedom of Information Office. That office forwarded the Appellant’s request to FETC and the DOE’s Oak Ridge Operations Office (Oak Ridge). On August 11, 1999, FETC issued a determination letter informing the Appellant that it had completed its portion of the search. The determination letter further informed the Appellant that it located a number of responsive documents. FETC released a large number of documents to the Appellant in their entirety. FETC, however, withheld some responsive information under FOIA Exemptions 3, 4 and 5.

The present Appeal was submitted on September 14, 1999, challenging several of FETC’s withholdings as well as the adequacy of the DOE’s search for responsive documents.(1) Specifically, the Appellant contends FETC:

1) failed to identify other authorizing officials having responsibility for the denial of records;

2) improperly withheld a memo under Exemption 4;

3) improperly withheld five documents under Exemption 5;

4) failed to explain why a discretionary release would not be appropriate for the withheld information; and,

5) failed to conduct an adequate search for responsive documents.

II. ANALYSIS

The FOIA generally requires that records held by federal agencies be released to the public upon request. 5 U.S.C. § 552(a)(3). However, the FOIA lists nine exemptions that set forth the types of information that an agency may withhold. 5 U.S.C. § 552(b)(1)-(b)(9); 10 C.F.R. § 1004.10(b)(1)- (b)(9). The only exemptions at issue in the present case are found at 5 U.S.C. § 552(b)(4) (Exemption 4) and 5 U.S.C. § 552(b)(5) (Exemption 5).

A. 10 C.F.R. § 1004.5(c)

The Appellant contends that FETC failed to comply with DOE FOIA regulation 10 C.F.R. § 1004.5(c) by failing to identify “any other Authorizing [or Denying] Officials having responsibility for the denial of records.” Appeal at 2. This contention is without merit. The determination letter only applied to that portion of the search conducted by FETC. Therefore, the only Authorizing or Denying Official involved in the determinations at issue was the Director of FETC, who signed the determination letter.

B. Adequacy of the Search

We have stated on numerous occasions that a FOIA request deserves a thorough and conscientious search for responsive documents, and we have not hesitated to remand a case where it is evident that the search conducted was in fact inadequate. See, e.g., Eugene Maples, 23 DOE ¶ 80,106 (1993); Native Americans for a Clean Environment, 23 DOE ¶ 80,149 (1993). To determine whether an agency's search was adequate, we must examine its actions under a "standard of reasonableness." McGehee v. CIA, 697 F.2d 1095, 1100-01 (D.C. Cir. 1983), modified in part on rehearing, 711 F.2d 1076 (D.C. Cir. 1983). This standard "does not require absolute exhaustion of the files; instead, it requires a search reasonably calculated to uncover the sought materials." Miller v. Department of State, 779 F.2d 1378, 1384-85 (8th Cir. 1985).

The Appellant contends that FETC's search must have been inadequate because it erred in processing other aspects of the determination. This contention is, in essence, mere speculation. "Mere speculation that as yet uncovered documents may exist does not undermine the finding that the agency conducted a reasonable search for them." Safecard Services, Inc. v. Department of Justice, 926 F.2d 1197, 1201 (D.C. Cir. 1991).

The Appellant also contends that the DOE needs to search the Headquarters Office of Patent Counsel (OPC) of the DOE Office of General Counsel. The Appellant’s attorney has indicated that he has had several conversations with various OPC representatives. These conversations apparently concerned the same subjects as the Appellant’s FOIA request. Under these circumstances, the OPC’s files should be included in the DOE’s search for responsive documents. Accordingly, we are remanding this portion of the Appeal to the DOE Headquarters Freedom of Information Office, which should coordinate this additional search for responsive documents.

C. Exemption 4

FETC withheld three documents under Exemption 4. The Appellant is only appealing FETC's withholding portions of one of these three documents. Portions of this document, which was prepared by FETC officials using information supplied to them by the Appellant's subsidiary, were withheld because they contained confidential commercial information submitted by a person to the DOE. However, our review of this withholding revealed that the information that FETC withheld from the Appellant under Exemption 4, was submitted to FETC by the Manufacturing Sciences Corporation (MSC). MSC is a subsidiary of the Appellant. (2) It is well settled that under the FOIA, a privilege cannot be asserted against a requester if it is the party to be protected by the privilege. See Department of Justice v. Reporters Comm. For Freedom of the Press, 489 U.S. 749, 771 (1989); Department of Justice v. Julian, 486 U.S. 1 (1988). Accordingly, we are remanding this portion of the Appeal to FETC, which should either promptly release this information to the Appellant or withhold it under another appropriate FOIA exemption.

D. Exemption 5

FETC withheld portions of six documents under Exemption 5. The Appellant contests the application of Exemption 5 to five of the six documents. These contested documents are identified as: (1) a Price Negotiation Memorandum (post-negotiation summary) dated 5/15/95, (2) a Price Negotiation Memorandum (pre-negotiation plan) dated 5/15/95, (3) a Price Negotiation Memorandum (pre-negotiation plan) dated 1/22/97, (4) correspondence from Jarr to Malhotra re: Covofinish Invention Being Used Under ORO Contract, and (5) correspondence dated 7/18/97 from Jarr to Marchick re: Covofinish Claim Re: DOE Rights in Patent No. 5,458,745.

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 Exemption 5 incorporates those “privileges which the Government enjoys under the relevant statutory and case law in the pre-trial discovery context.” Renegotiation Board v. Grumman Aircraft Engineering Corp., 421 U.S. 168, 184 (1975); see also NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 149 (1975) (Sears). The determination letter indicates that FETC has withheld information from these five documents under the deliberative process privilege. It is well settled that the executive or deliberative process privilege is among the privileges that fall under this exclusion. Coastal States Gas Corp. v. Department of Energy, 617 F.2d 854, 862 (D.C. Cir. 1980).

The deliberative process privilege 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 purpose of the privilege 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 the deliberative process 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). Our review of the withheld information indicates that FETC failed to segregate a great deal of non-deliberative factual information from its withholdings.

The DOE regulations provide 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. Accordingly, even if a document can properly be withheld under Exemption 5, we must consider whether the public interest nevertheless demands disclosure pursuant to 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.

Upon reviewing the information withheld by FETC under Exemption 5, it appeared that much of this information could be released to the public without revealing the agency's deliberations. The determination letter does not provide any indication or justification for withholding this information. Therefore, FETC has failed to articulate any foreseeable harm to a protected interest. On remand, FETC should review that information again and either release any information that could not reasonable be expected to harm a protected interest or clearly explain how release of that information could reasonably be expected to cause such harm.

On remand, FETC should review each of the five contested documents and should release all factual or descriptive information, sufficiently justify any withholding under Exemption 5, or consider withholding it under other exemptions. (3)

III. CONCLUSION

We are remanding part of the present Appeal to FETC. On remand, FETC shall either release the information it withheld under Exemptions 4 and 5 or provide a new justification for withholding. If FETC continues to withhold information under Exemption 5, it must explain which Exemption 5 privilege it is applying. In doing so, it must provide more than a simple restatement of the applicable test. Instead, it should include a statement of the reason for any withholding, a brief explanation of how the exemption applies to the matter withheld and an explanation of how the information it is withholding could reasonably be expected to cause harm if released to the public. 10 C.F.R. § 1004.7(b)(1); William H. Payne, 26 DOE ¶ 80,221 at 80,861 (1997); Davis Wright & Jones, 19 DOE ¶ 80,104 at 80,510 (1989). In addition, we are remanding part of the present Appeal to the Headquarters Freedom of Information Office for an additional search for responsive documents. The rest of the Appeal will be denied.

It Is Therefore Ordered That:

(1) The Appeal filed by BNFL, Inc., Case No. VFA-0525, is hereby granted in part as set forth in Paragraph (2) below and denied in all other aspects.

(2) The Appeal is hereby remanded to the Federal Energy Technology Center and to the Headquarters Freedom of Information Office for further processing in accordance with the instructions set forth above.

(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 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: October 13, 1999

(1)The Appeal does not contest any of FETC's withholdings under Exemption 3.

(2)The Appellant's attorney indicates that he is also representing MSC. As MSC's representative, he has assured us that MSC has provided its consent to release this information to its parent.

(3)Some of this information might be appropriately withheld under the confidential commercial information privilege discussed at length in Federal Open Market Comm. v. Merrill, 443 U.S. 340 (1979).