Case No. VFA-0544, 27 DOE ¶ 80,280

May 31, 2000

DECISION AND ORDER

OF THE DEPARTMENT OF ENERGY

Appeal

Name of Appellant: Ashok K. Kaushal

Date of Filing: December 10, 1999

Case Number: VFA-0544

Ashok K. Kaushal files this Appeal in response to a determination issued to him by the Department of Energy's Albuquerque Operations Office (AO). The determination deals with a request that Kaushal 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, Kaushal requests the release of material responsive to his request. As explained below, we will remand Kaushal’s request for further processing.

I. Background

Kaushal’s FOIA request sought the release of documents relating to a complaint he had filed against Sandia National Laboratory (SNL). Twenty-four documents were found that were responsive to Kaushal’s request. AO released twenty-one of these documents and withheld three in their entirety, claiming the documents were exempted from mandatory release pursuant to 5 U.S.C. § 552(b)(5) (Exemption 5). Kaushal then filed the present Appeal with the Office of Hearings and Appeals.

II. Analysis

A. Exemption 5 and the Foreseeable Harm Standard

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. AO withheld the three documents under 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). Two civil discovery privileges that have been incorporated into Exemption 5, and which were cited by AO, are the attorney work-product privilege and the attorney-client privilege. NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 149 (1975).

Two documents, identified in the Determination Letter as Documents 74 and 91, were withheld under the attorney work-product privilege. A third document, identified in the Determination Letter as Document 92, was withheld under the attorney-client privilege. All three documents were related to a legal proceeding between Kaushal and SNL. The proceeding has been resolved.

The Determination Letter issued by AO explains how the withheld documents meet the criteria set out in Exemption 5. However, the Determination Letter does not discuss whether release of the withheld documents would cause a foreseeable harm to the to the interests protected by Exemption 5. As discussed below, we require a Determination Letter asserting Exemption 5 to include an articulation of foreseeable harm. If the Determination Letter fails to include an articulation of foreseeable harm, we have remanded the matter for a new determination. Joyce Ecomomus, 23 DOE ¶ 80,182 (1993); Eugene Maples, 23 DOE ¶ 80,164 (1993); Oxy USA, 24 DOE ¶ 80,101 (1994). Accordingly, we shall remand this matter to AO for a new determination.

The foreseeable harm standard was established by the “Memorandum for Heads of Departments and Agencies” (the Memorandum), issued by the Attorney General on October 4, 1993. The Memorandum states that "it shall be the policy of the U.S. Department of Justice to defend the assertion of a FOIA exemption only in those cases where the agency reasonably foresees that disclosure would be harmful to an interest protected by that exemption." Thus, under the standard set out in the Memorandum, it is not enough to assert a legally correct application of an exemption. In addition, the agency must articulate a reasonably foreseeable harm to an interest protected by that exemption.

While the Memorandum states that it does not create any substantive or procedural rights enforceable at law, it nevertheless establishes an important practical requirement. Memorandum at 2; Oxy USA, supra. The Department of Justice is responsible for defending in judicial litigation an agency’s assertion of a FOIA exemption. According to the Memorandum, the Department of Justice will provide the defense only if the agency has articulated a reasonably foreseeable harm. Without the Department of Justice’s defense, the agency may be ordered by the court to release the documents, notwithstanding the applicability of a FOIA exemption. Consequently the DOE requires its offices to provide an articulation of foreseeable harm whenever they assert a FOIA exemption, and failure to provide such an articulation is a ground for remand.

B. Segregability

The fact that a document meets the criteria for withholding discussed above does not necessarily mean that it may be withheld in its entirety. 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). Greg Long, 25 DOE ¶ 80,129 (1995). However, material need not be segregated and released when the exempt and non-exempt material are so "inextricably intertwined" that release of the non-exempt material would compromise the exempt material, or where non-exempt material is so small and interspersed with exempt material that it would pose "an inordinate burden" to segregate it. Lead Industries Assoc. v. OSHA, 610 F.2d 70, 85 (2d Cir. 1979).

AO states in the Determination Letter that “the factual material [in the withheld documents] is so inextricably intertwined with exempt material ... that the release would either disclose the privileged information or the nonexempt material would only comprise a small portion of the documents and pose an inordinate segregation burden.” Based on our review of the documents, however, we find that AO should reconsider the issue of segregability. For example, Document 91 is a brief memorandum from an employee of SNL informing the Legal Department that Kaushal had filed a complaint against SNL, and requesting a review of the matter. The amount of material in this document that could arguably be withheld under the FOIA is small, and the document could be released with minor redactions.

III. Conclusion

On remand, AO must review the withheld documents, segregate and release all non-exempt portions of the documents, and issue a new determination that justifies any withholding. The new determination should take into account the foreseeable harm standard set forth in the Attorney General’s Memorandum, as discussed above.

It Is Therefore Ordered That:

(1) The Appeal filed by Ashok K. Kaushal (Case No. VFA-0544) is hereby granted as set forth in paragraph (2) below and denied in all other aspects.

(2) This matter is hereby remanded to the Albuquerque Operations Office for further proceedings consistent with the guidelines set forth in the above Decision.

(3) 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: May 31, 2000