Case No. VFA-0542, 27 DOE ¶ 80,252

January 10, 2000

DECISION AND ORDER

OF THE DEPARTMENT OF ENERGY

Appeal

Name of Petitioner: American Friends Service Committee

Date of Filing: December 10, 1999

Case Number: VFA-0542

On December 10, 1999, American Friends Service Committee (AFSC) filed an Appeal from a final determination that the Office of Inspector General (OIG) of the Department of Energy (DOE) issued on November 3, 1999. That determination concerned a request for information submitted by AFSC pursuant to the Freedom of Information Act (FOIA), 5 U.S.C. § 552, as implemented by the DOE in 10 C.F.R. Part 1004. If the present Appeal were granted, the OIG would be required to release the withheld portion of one document.

Background

On June 13, 1997, and March 3, 1998, AFSC submitted a FOIA request for “all documentation from 1969 to the present which addresses the deposit, presence and/or impact of radioactive materials at the Industrial Excess Landfill site in Uniontown, Ohio.” Request Letter date June 13, 1997, from Gregory D. Coleridge, Director, AFSC, to Chief, FOIA/PA Branch, DOE (Request Letter); Letter dated March 3, 1998, from Gregory D. Coleridge, Director, AFSC, to Abel Lopez, Acting Director, FOIA/PA Division, Office of the Executive Secretariat, DOE. On May 3, 1999, OIG responded, releasing nine documents, two in their entirety.(1) OIG indicated that it was referring other documents to the Environmental Protection Agency (EPA), Nuclear Regulatory Commission (NRC), the DOE’s Albuquerque Operations Office, and the DOE’s Ohio Field Office.

On November 3, 1999, OIG issued another determination releasing documents it had numbered 10 and 20 through 60. Determination Letter from Sandra L. Schneider, Assistant Inspector General for Inspections, OIG, to Gregory D. Coleridge, AFSC (Determination Letter). Seven documents were released in their entirety. The remainder were released with material withheld pursuant to Exemptions 6 and 7(C) of the FOIA. Id. In response, AFSC filed this Appeal. AFSC appeals only the information withheld from

Document 39,(2) a letter on EPA letterhead addresed to John C. Layton, Inspector General, DOE. AFSC argues that the withheld portions of Document 39 are outside the scope of Exemptions 6 or 7(C). Appeal Letter at 4-5, dated December 7, 1999, from Gary L. Cutler, Curtis, Mallet-Prevost, Colt & Mosle, to Director, OHA, DOE (Appeal Letter).

Analysis

In its Appeal, AFSC contends that the OIG applied Exemptions 6 and 7(C) in an overly broad manner. AFSC states that OIG should not have redacted information from the document under Exemption 6 because it is not a document found in a personnel or medical file. Further, since the deletions “obviously refer to federal agency employees acting in their official capacities,” they cannot be withheld under Exemption 7(C).

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). Exemption 7(C) allows an agency to withhold "records or information compiled for law enforcement purposes, if release of such law enforcement records or information . . . could reasonably be expected to constitute an unwarranted invasion of personal privacy." 5 U.S.C. § 552(b)(7)(C); 10 C.F.R. § 1004.10(b)(7)(iii).

In order to determine whether a record may be withheld under either Exemption 6 or 7(C), an agency must undertake a three-step analysis. First, the agency must determine whether or not a significant privacy interest would be compromised by the disclosure of the record. If no privacy interest is identified, the record may not be withheld pursuant to either of the exemptions. See Ripskis v. Department of Hous. and Urban Dev., 746 F.2d 1, 3 (D.C. Cir. 1984) (Ripskis). Second, the agency must determine whether or not release of the document would further the public interest by shedding light on the operations and activities of the Government. See Reporters Committee for Freedom of the Press v. Department of Justice, 489 U.S. 749 (1989) (Reporters Committee). Finally, the agency must weigh the privacy interests it has identified against the public interest in order to determine whether release of the record either (1) would constitute a clearly unwarranted invasion of personal privacy (the Exemption 6 standard), or (2) could reasonably be expected to constitute an unwarranted invasion of personal privacy (the Exemption 7(C) standard). See generally Ripskis, 746 F.2d at 3; Stone v. FBI, 727 F. Supp. 662, 663-64 (D.D.C. 1990) .

We have previously considered cases in which both Exemption 6 and 7(C) were invoked, and we stated that in such cases, provided the Exemption 7 threshold requiring a valid law enforcement purpose is met, we would analyze the withholding only under Exemption 7(C), the broader of the two exemptions. See, e.g., K.D. Moseley, 22 DOE ¶ 80,124 (1992). A document compiled for law enforcement purpose may be protected from disclosure if it satisfies Exemption 7(C)’s “reasonableness” standard. Conversely, a document not protected by Exemption 7(C) will be unable to satisfy Exemption 6's more restrictive requirement that release constitute a clearly unwarranted invasion of personal privacy.

The threshold test for withholding information under Exemption 7(C) is whether such information is compiled as part of or in connection with an agency law enforcement proceeding. FBI v. Abramson, 456 U.S. 615, 622 (1982). The scope of Exemption 7 encompasses enforcement of both civil and criminal statutes. Rural Housing Alliance v. Department of Agriculture, 498 F.2d 73, 81 & n.46 (D.C. Cir. 1974). In the present case, Document 39 was created by EPA’s Office of Inspector General during an investigation of alleged misconduct concerning the Industrial Excess Landfill site in Uniontown, Ohio. Further, Document 39 was written in response to a letter from the DOE’s OIG to EPA. By law, OIG is charged with investigating waste, fraud, and abuse in programs and operations administered or financed by the DOE. 5 U.S.C. Appendix 3 § 4. OIG is therefore a classic example of an organization with a clear law enforcement mandate. Ortiz v. Department of Health and Human Servs., 70 F.3d 729, 732-33 (2d Cir. 1995) (Ortiz) and cases cited therein. Consequently, Document 39 was created for a law enforcement purpose.

We agree with AFSC that the names of the federal officials acting in their official capacity should not have been redacted. We will remand the matter to OIG for it to release the names and titles of the federal agency officials where it is apparent that the officials were acting in their official capacity unless it can provide any other justification for its withholding. However, contrary to AFSC’s assertion, not all of the redactions involved the names of federal agency officials. One of the deletions contains the name of a private individual. Because of the obvious possibility of harassment, intimidation, or other personal intrusions, the courts have consistently recognized significant privacy interests in the identities of individuals providing information to government investigators. Safecard Services, Inc. v. SEC, 926 F.2d 1197 (D.C. Cir. 1991); KTVY-TV v. United States, 919 F.2d 1465, 1469 (10th Cir. 1990) (finding that withholding identity necessary to avoid harassment of individual); Cucarro v. Secretary of Labor, 770 F.2d 355, 359 (3d Cir. 1985); James L. Schwab, 21 DOE ¶ 80,117 at 80,556 (1991); Lloyd R. Makey, 20 DOE ¶ 80,109 (1990). OIG states that the individual named in Document 39 has a privacy interest in remaining free from intrusions into his or her professional and private life. OIG believes that release of this name would put its investigation in jeopardy. This individual originally approached OIG with a complaint concerning the Industrial Excess Landfill site in Uniontown, Ohio. We agree that there is a privacy interest for this individual providing information to government investigators. Accordingly, we will uphold the OIG’s withholding of the private individual’s name, but we will remand this matter to OIG for a new determination releasing the names and titles of the federal agency officials unless it can provide another justification.

It Is Therefore Ordered That:

(1) The Appeal filed by American Friends Service Committee, on December 10, 1999, Case No. VFA-0542, is hereby granted as set forth in Paragraph (2) below, and is denied in all other respects.

(2) This matter is hereby remanded to the Office of the Inspector General of the Department of Energy, which shall issue a new determination 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 provision of 5 U.S.C. § 552(a)(4)(B). Judicial review may be sought either in the district where 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: January 10, 2000

(1) AFSC appealed the May 3, 1999 determination to the Office of Hearings and Appeals (OHA) on June 3, 1999. OHA issued its decision on July 1, 1999, partially granting AFSC’s appeal, and remanding the matter to OIG. American Friends Service Committee, 27 DOE ¶ 80,214 (1999).

(2)OIG sent Document 39, a letter from an EPA employee to John C. Layton, Inspector General, DOE, to EPA for consideration of its releasability under the FOIA. EPA returned it to OIG, stating that it was not from its file. We find it difficult to understand how a letter on EPA letterhead could not be an EPA document, and we believe that it may have been overlooked when the thirty or more documents were reviewed by EPA. However, authorship of Document 39 does not alter our analysis in this case.