Case No. VFA-0537, 27 DOE ¶ 80,243

November 24, 1999

DECISION AND ORDER

OF THE DEPARTMENT OF ENERGY

Appeal

Name of Appellant:STAND, Inc.

Date of Filing:November 3, 1999

Case Number: VFA-0537

Serious Texans Against Nuclear Dumping, Inc. (STAND) files this Appeal in response to a determination issued to it by the Department of Energy's Albuquerque Operations Office (Albuquerque). The determination deals with a request that STAND 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 its Appeal, STAND requests the release of material responsive to its request. As explained below, we will remand the request for further processing.

BACKGROUND

STAND requested from Albuquerque a copy of a document called the "Baseline Risk Assessment" (the Assessment). The objective of the Assessment is "to analyze the Pantex Plant site conditions in the absence of remedial action and to provide human health and environmental baseline data to be used in alternative remedial action evaluation."(1)

Albuquerque responded that it would not release any of the Assessment, claiming it was protected from release by the provisions of 5 U.S.C. § 552(b)(5) (Exemption 5). STAND then filed the present Appeal with the Office of Hearings and Appeals.

EXEMPTION 5

The FOIA generally requires that all federal agency records be made available to the public, subject to certain specified exemptions. The Act provides, however, for nine categories of records that are exempt from mandatory disclosure. At issue in this case is Exemption 5 of the FOIA, which exempts "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). This provision exempts "those documents, and only those documents, normally privileged in the civil discovery context." NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 149 (1975) (Sears).

Included within the boundaries of Exemption 5 is the "predecisional" privilege, sometimes referred to as the "executive" or "deliberative process" privilege. Coastal States Gas Corporation v. Department of Energy, 617 F.2d 854, 862 (D.C. Cir. 1980) (Coastal States). The predecisional privilege permits the agency to withhold records that reflect advisory opinions, recommendations, and deliberations comprising part of the process by which government decisions and policies are formulated. Sears, 421 U.S. at 150. It is intended to promote frank and independent discussion among those responsible for making governmental decisions. EPA v. Mink, 410 U.S. 73, 87 (1973) (Mink); Kaiser Aluminum & Chemical Corp. v. United States, 157 F. Supp. 939 (Ct. Cl. 1958)).

In order to be shielded by Exemption 5, a record 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 predecisional privilege of Exemption 5 covers records that typically reflect the personal opinion of the writer rather than the final policy of the agency. Id. Consequently, the privilege does not generally protect records containing purely factual matters.

There are, however, exceptions to this general rule. The first exception is for records in which factual information was selected from a larger collection of facts as part of the agency's deliberative process, and the release of either the collection of facts or the selected facts would reveal that deliberative process. Montrose v. Train, 491 F.2d 63 (D.C. Cir. 1974); Dudman Communications v. Department of Air Force, 815 F.2d 1564 (D.C. Cir. 1987). The second exception is for factual information that is so inextricably intertwined with deliberative material that its exposure would reveal the agency's deliberative process. Wolfe v. HHS, 839 F.2d 769, 774-76 (D.C. Cir. 1988). Factual matter that does not fall within either of these two categories does not generally qualify for protection under Exemption 5.

In addition to providing categories of records exempt from mandatory disclosure, the FOIA requires that “any reasonably segregable portion of a record shall be provided to any person requesting such record after deletion of the portions which are exempt under this subsection.” 5 U.S.C. § 552(b). Thus, if a document contains both predecisional matter and factual matter that is not otherwise exempt from release, the factual matter must be segregated and released to the requester.

ALBUQUERQUE'S DETERMINATION LETTER

In its determination letter issued to STAND, Albuquerque explained its rationale for withholding as follows:

The document you are requesting is, indeed, in draft form and is currently in the process of being finalized. Therefore, this document is being withheld in its entirety pursuant to ... Exemption 5 of the FOIA which permits the withholding of predecisional information....

Current reviews between Texas Natural Resources Conservation Commission and the U.S. Department of Energy ... have involved extensive revisions. Premature release of this draft would have a chilling effect on the deliberative process being used in finalizing this document as it would likely inhibit creative thoughts and candid expression of ideas within the organizations involved, thereby undermining these organizations' abilities to perform their functions. After all reviews are complete, this document will be finalized and a copy will be placed in the DOE Reading Room in Amarillo, Texas.

The ... DOE regulations provide that documents exempt from mandatory disclosure under the FOIA shall be released regardless of their exempt status, unless the DOE determines that disclosure is contrary to public interest. For the reasons described above, I have determined that release of this information is not in the public interest.

CONCLUSION

The Determination Letter did not address the issues of whether the Assessment contains any releasable factual matter. Accordingly, we will remand this case to Albuquerque. On remand, Albuquerque shall review the withheld documents and segregate and release all factual portions of the Assessment, or issue a new determination that justifies their withholding.

It Is Therefore Ordered That:

(1) The Appeal filed by STAND, Inc. on November 3, 1999, (Case No. VFA-0537) is hereby granted as set forth in Paragraph (2) below.

(2) This matter is remanded to Albuquerque Operations Office for further processing in accordance with the instructions provided in this Decision.

(3) 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: November 24, 1999

(1) This description is given in a document titled "Draft Baseline Risk Assessment Work Plan," which STAND submitted with its Appeal.