Case No. VFA-0527, 27 DOE ¶ 80,239

October 18, 1999

DECISION AND ORDER

OF THE DEPARTMENT OF ENERGY

Appeal

Name of Appellant:Matthew Cherney, M.D.

Date of Filing:September 23, 1999

Case Number: VFA-0527

Matthew Cherney, M.D., filed this Appeal in response to a determination issued to him by the Department of Energy's Office of the Inspector General (OIG) on September 23, 1999. The determination deals with a request for information that Dr. Cherney submitted pursuant to the Freedom of Information Act (FOIA), 5 U.S.C. § 552, as implemented by the Department of Energy at 10 C.F.R. Part 1004. In his Appeal, Dr. Cherney requests the release of responsive material. As explained below, we will deny Dr. Cherney's Appeal.

I. Background

On March 9, 1999, Dr. Cherney filed a request under the FOIA for copies of documents relating to an inquiry conducted by the OIG. On April 5, the OIG advised Dr. Cherney that it had located responsive documents, but would withhold them from release pursuant to Exemption 7(A) of the FOIA. Exemption 7(A) authorizes the withholding of "records or information compiled for law enforcement purposes, but only to the extent that production of such law enforcement records or information ... could reasonably be expected to interfere with enforcement proceedings." 5 U.S.C. § 552(b)(7)(A).

In its April 5 determination, the OIG explained that:

A review of the responsive documents ... has been made.... The responsive documents are being withheld in their entirety pursuant to ... Exemption 7(A).... There has not been a final determination concerning this matter. Accordingly, Exemption 7(A) has been applied to the responsive documents. Release of the material at this time could prematurely reveal evidence and interfere with the ongoing enforcement proceeding.

Dr. Cherney appealed this determination. In reviewing his Appeal, we found that the OIG's explanation for withholding under Exemption 7(A) was inadequate in view of the principles enunciated in Bevis v. Department Of State, 801 F.2d 1386, 1388 (D.C. Cir. 1986) (Bevis).

In Bevis, the court ruled that an agency withholding records under Exemption 7(A) "need not justify its withholding on a document-by-document basis," but instead may group the documents in categories. Bevis, 801 F.2d at 1389. Moreover, when an agency elects to describe records by this approach, it "has a three-fold task. First, it must define its categories functionally. Second, it must conduct a document-by-document review in order to assign the documents to the proper category. Finally, it must explain how the release of each category would interfere with enforcement proceedings." Bevis, 801 F.2d at 1389-90.

In our review of the April 5 determination, we found that the determination letter did not assign each responsive document to a functional category. We therefore granted the Appeal and remanded Dr. Cherney's request for a new determination. Matthew Cherney, M.D., 27 DOE ¶ 80,209 (May 28, 1999) (the May 28 decision).

On remand, OIG issued a new determination letter on September 23, 1999. In this determination, OIG continued to assert that the responsive documents are protected from withholding by Exemption 7(A). In addition, OIG grouped the responsive documents into nine functional categories. This determination is the subject of the present Appeal.

II. Analysis

Dr. Cherney's Appeal consists of five numbered items. Items 2, 3, and 4 consist of complaints about the performance of OIG and the Office of Hearings and Appeals. In regard to these items, we note that:

Under the FOIA an individual may only obtain access to records "written or transcribed to perpetuate knowledge or events" ... Therefore, FOIA neither requires an agency to answer questions disguised as a FOIA request ... or to create documents or opinions in response to an individual's request for information.

Hudgins v. IRS, 620 F. Supp. 19, 21 (D.D.C. 1985) (citations omitted). Accordingly, we will regard these complaints as outside the scope of an appeal under the FOIA.

Item 1 of the Appeal states in full that "there is no identifiable category into which congressional correspondence, documents of public record previously ordered released, fits. Let's have any and all congressional correspondence without delay -- as previously ordered."

In response to this item, we contacted personnel at OIG and asked them if there was any congressional correspondence among the records identified as responsive to Dr. Cherney's reqeust. They informed us that there were no items that could be described as "congressional correspondence." We need not, therefore, determine whether congressional correspondence should be released, or whether it fits into any of the functional categories specified in the September 9 determination letter.(1)

Item 5 of the Appeal states in full that "the decision itself is improper, as it is unsigned." However, Dr. Cherney did not include a copy of the determination letter with his Appeal. We contacted Dr. Cherney to request a copy of the determination letter. He requested that we obtain a copy from OIG. When we received a copy from OIG, we noted that the determination was clearly signed by Sandra L. Schneider, the Assistant Inspector General for Inspections of OIG. Since Dr. Cherney's assertion lacks merit, we will give it no further consideration.

III. Conclusion

Dr. Cherney's Appeal rests on the assumptions that (1) the OIG has copies of congressional correspondence that are responsive to his request and (2) the determination letter is unsigned. Since both assumptions lack merit, we will deny the Appeal.

It Is Therefore Ordered That:

(1) The Appeal filed by Matthew Cherney, M.D., Case No. VFA-0521, 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 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 18, 1999

(1)Contrary to Dr. Cherney's assertion, the Office of Hearings and Appeals has not ordered OIG to release congressional correspondence. In our review of a previous Appeal by Dr. Cherney, the DOE's Office of Power Technologies informed us that it might have copies of congressional correspondence that it had not considered in its original response to him. We remanded the request to the Office of Power Technologies for a search for responsive records in its file of congressional correspondence, but did not order their release. Matthew Cherney, M.D., 27 DOE ¶ 80,212 (June 24, 1999) (the June 24 decision). In contrast to the June 24 decision, the present decision considers the determination of the OIG, and does not involve records in the possession of the Office of Power Technologies.