Robert A. Speir, Case No. VFA0541, January 5, 2000

Case No. VFA-0541, 27 DOE ¶ 80,251

January 5, 2000

DECISION AND ORDER

OF THE DEPARTMENT OF ENERGY

Appeal

Name of Petitioner:Robert A. Speir

Date of Filing:December 7, 1999

Case Number: VFA-0541

On December 7, 1999, the Office of Hearings and Appeals (OHA) received a Freedom of Information Act (FOIA) Appeal filed by Robert A. Speir appealing a determination by the Department of Energy’s (DOE) Office of Inspector General (the IG). (1) That determination was issued by the IG on November 4, 1999 in response to a request for information submitted by Speir in accordance with the provisions of the FOIA, 5 U.S.C. § 552, as implemented by the DOE in 10 C.F.R. Part 1004. This Appeal, if granted, would require the IG to release any responsive documents it is withholding.

I. Background

The request sought access to documents containing information about the following four items:

(1) Copies of all records given to any member of Congress or congressional committee related to Speir's receipt of a cash award from the Project on Government Oversight;

(2) All internal records related to DOE consideration of the requests by members of Congress for materials, documents and records related to Speir's receipt of a cash award from the Project on Government Oversight, and also records related to any DOE review regarding the appropriateness of the award;

(3) Records relating to Speir's receipt of a cash award from the Project on Government Oversight provided to the Department of Justice or any other element of the Executive Branch of the Federal Government; and

(4) Copies of records of any contact with members of the press as related to this award.

On November 4, 1999, the IG issued a determination letter withholding an unknown quantity of responsive documents in their entirety under FOIA Exemption 7(A). (2)

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 exemption at issue in the present case is found at 5 U.S.C. § 552(b)(7)(a) (1994 & Supp. II 1996). 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. " Id.

The threshold requirement in any Exemption 7 inquiry is whether the documents are compiled for law enforcement purposes, i.e., as part of or in connection with an agency law enforcement proceeding. See F.B.I. v. Abramson, 456 U.S. 615, 622 (1982); William Payne, 26 DOE ¶ 80,144 (1996) (Payne). In order to withhold information under Exemption 7, an organization must have statutory authority to enforce a violation of a law or regulation within its authority. Church of Scientology v. Department of the Army, 611 F.2d 738, 748 (9th Cir. 1979) (remanding to Naval Investigative Service to show that investigation involved enforcement of statute or regulation within its authority).

The IG is such an organization. The IG is charged with investigating and correcting waste, fraud, or abuse in programs and operations administered or financed by the DOE. 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). Accordingly, we have consistently found that the IG compiles information for law enforcement purposes within the meaning of Exemption 7. Richard Levernier, 26 DOE ¶ 80,182 (1997); Keci Corporation, 26 DOE ¶ 80,149 (1997). The courts have similarly found that the Inspector General's offices in other agencies exercise the requisite law enforcement functions to protect their investigatory files under Exemption 7. E.g., Rural Housing Alliance v. Department of Agriculture, 498 F.2d 73 (D.C. Cir. 1974). Therefore, we find that the documents at issue in this case satisfy the threshold test for application of Exemption 7.

Determining the applicability of Exemption 7(A) in particular requires a two-step analysis focusing on: (1) whether a law enforcement proceeding is pending or prospective; and (2) whether release of information about it could reasonably be expected to cause some articulable harm to the pending enforcement proceeding. See Miller v. USDA, 13 F.3d 260, 263 (8th Cir. 1993)(agency must make a specific showing of why disclosure of documents could reasonably be expected to interfere with enforcement proceedings); Crooker v. ATF, 789 F.2d 64, 65-67 (D.C. Cir. 1986) (agency had failed to demonstrate that disclosure would interfere with enforcement proceedings); Grasso v. IRS, 785 F.2d 70, 77 (3rd Cir. 1986) ("government must show, by more than conclusory statement, how the particular kinds of investigatory records requested would interfere with a pending enforcement proceeding").

In applying these standards in the past, the courts have found that agencies are not required to make a particularized, case-by-case showing of interference with their investigations. Rather, a generic determination of likely interference is sufficient. See Murray, Jacobs & Abel, 25 DOE ¶ 80,130 (1995) (Murray); NRLB v. Robbins Tire and Rubber Co., 437 U.S. 214, 224 (1978); Crancer v. United States Dep't of Justice, 999 F.2d 1302, 1306 (8th Cir. 1993). It is important to note that even though an agency "need not justify its withholding on a document-by-document basis in court, [it] must itself review each document to determine the category in which it properly belongs." Bevis v. United States Dep't of State, 801 F.2d 1386, 1389 (D.C. Cir. 1986) (Bevis). Thus, when an agency elects to use the "generic" 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; Murray, 25 DOE at 80,576.

Both the statute and the DOE's FOIA regulations require the agency to provide a reasonably specific justification for any withholdings. 5 U.S.C. § 552(a)(6), 10 C.F.R. § 1004.7(b)(1); Mead Data Central, Inc. v. Department of the Air Force, 566 F.2d 242 (D.C. Cir. 1977); National Parks & Conservation Ass'n v. Kleppe, 547 F.2d 673 (D.C. Cir. 1976) (Kleppe); Digital City Communications, Inc., 26 DOE ¶ 80,149 at 80,657 (1997); Data Technology Industries, 4 DOE ¶ 80,118 (1979). A reasonably specific justification of a withholding allows both the requester and this Office to determine whether the claimed exemption was accurately applied. Tri-State Drilling, Inc., 26 DOE ¶ 80,202 at 80,816 (1997). It also aids the requester in formulating a meaningful appeal and this Office in reviewing that appeal. Wisconsin Project on Nuclear Arms Control, 22 DOE ¶ 80,109 at 80,517 (1992).

Turning to the present appeal, we find that the IG has failed to provide a sufficient justification of its withholdings under Exemption 7(A). The IG's determination letter does not provide any description of the documents it is withholding. As a result, we are unable to determine how release of the withheld information could reasonably be expected to interfere with the investigation.

Accordingly, we are remanding this portion of the Appeal to the IG. On remand, the IG should release the withheld information, withhold it under an alternative FOIA exemption, or issue a new determination letter which includes a description of the withheld documents that is sufficient to provide a reviewer with an opportunity to grasp how disclosure of the documents could reasonably be expected to interfere with an on-going investigation.

It Is Therefore Ordered That:

(1) The Appeal filed by Robert A. Speir on December 7, 1999, Case Number VFA-0541, is hereby granted in part and remanded to the Office of Inspector General which shall promptly implement the instructions set forth above.

(2) The portion of the Appeal concerning the timeliness of DOE's response to Speir's FOIA requests is dismissed.

(3) The Appeal is denied in all other aspects.

(4) 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: January 5, 2000

(1) Apparently, several other DOE offices are conducting separate searches for documents responsive to Speir's requests. The determination letter issued by the IG, and our review of the present Appeal, concern only the IG's withholdings under Exemption 7(A) of those responsive documents in its possession.

(2) Speir's Appeal also challenges the timeliness of DOE's response to his FOIA requests. However, this office does not have jurisdiction to consider Appeals concerning the timeliness of the agency's response to FOIA requests. 10 C.F.R. § 1004.8(a). Accordingly, we will dismiss that portion of the present appeal concerning the timeliness of DOE's response to Speir's FOIA requests.