Westinghouse Savannah River Company, LLC, Case No. VFA-0556, March 13, 2000

Case No. VFA-0556, 27 DOE ¶ 80,263

March 13, 2000

DECISION AND ORDER

OF THE DEPARTMENT OF ENERGY

Appeal

Name of Petitioner: Westinghouse Savannah River Company, LLC

Date of Filing: February 1, 2000

Case Number: VFA-0556

On February 1, 2000, Westinghouse Savannah River Company, LLC (WSRC) filed an appeal of a determination that the Department of Energy’s (DOE’s) Office of Inspector General (OIG) issued to it on December 21, 1999. That determination denied a request for information that WSRC filed on November 5, 1999, pursuant to the Freedom of Information Act (FOIA), 5 U.S.C. § 552, implemented by the DOE in 10 C.F.R. Part 1004. This Appeal, if granted, would require that OIG release responsive documents, if they exist, that were withheld under FOIA Exemption 7(C), 5 U.S.C. § 552 (b)(7)(C).

The FOIA requires that documents held by federal agencies generally be released to the public upon request. The FOIA, however, lists nine exemptions that set forth the types of information that may be withheld at the discretion of an agency. 5 U.S.C. § 552(b). DOE regulations further provide that a document exempt from disclosure under the FOIA shall nonetheless be released to the public whenever the DOE determines that disclosure is in the public interest. 10 C.F.R. § 1004.1.

I. Background

On November 5, 1999, WSRC requested that the OIG release a copy of an investigative file regarding a named individual. Letter from WSRC to FOIA Officer, OIG (November 5, 1999). The OIG responded that it could neither confirm nor deny the existence of records responsive to WSRC’s request, and denied the request under FOIA Exemption 7(C). 5 U.S.C. § 552(b)(7)(C). Letter from Judith D. Gibson, OIG, to WSRC (December 21, 1999). An agency’s statement in response to a FOIA request that it will neither confirm nor deny the existence of records is commonly called a “Glomar” response.(1)

WSRC subsequently appealed OIG’s determination. Letter from WSRC to Director, Office of Hearings and Appeals (January 28, 2000) (Appeal). According to WSRC, the named individual in its request has waived his privacy rights by making allegations [of official misconduct] against WSRC and other defendants public through litigation. Id. If this Appeal were granted, OIG would be required to release the requested information, if it exists.

II. Analysis

This Decision and Order will focus on the propriety of OIG’s determination of a privacy interest and OIG’s use of the Glomar response in refusal to confirm or deny the existence of investigatory records concerning a third person. As detailed below, we will uphold both actions.

A. Exemption 7(C)

Exemption 7(C) of the FOIA, 5 U.S.C. § 552(b)(7)(C), allows an agency to withhold "records or information compiled for law enforcement purposes, but only to the extent that the production 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). The threshold test for withholding information under Exemption 7(C) is whether the agency compiled such information 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). Amendments to the FOIA in 1986 extended the protection of Exemption 7 to all records compiled for “law enforcement purposes.” See Attorney General’s Memorandum on the 1986 Amendments to the Freedom of Information Act (Dec. 1987).

OIG is a law enforcement body charged with investigating and correcting waste, fraud or abuse in programs administered or financed by the DOE. See 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). As a result of its duties, we find that OIG compiles reports involving official misconduct for “law enforcement purposes” within the meaning of Exemption 7(C). See Burlin McKinney, 25 DOE ¶ 80,149 (1995).

B. The Balancing Test Under Exemption 7(C)

In determining whether the disclosure of law enforcement records could reasonably be expected to constitute an unwarranted invasion of personal privacy, courts have used a balancing test, weighing the privacy interests that would be infringed against the public interest in disclosure. Department of Justice v. Reporters Committee for Freedom of the Press, 489 U.S. 749, 762 (1989) (Reporters Committee); Safecard Services, Inc. v. Securities and Exchange Commission, 926 F.2d 1197 (D.C. Cir. 1991) (Safecard); Lesar v. Department of Justice, 636 F.2d 472, 486 (D.C. Cir. 1980).

1. The privacy interest

An individual who files an official complaint alleging irregularities in DOE’s operations has a privacy interest in being protected from possible retaliation. We have previously found that sources mentioned in OIG files have a strong privacy interest in remaining anonymous. See Blumberg, Seng, Ikeda & Albers, 25 DOE ¶ 80,124 at 80,563 (1995); James L. Schwab, 21 DOE ¶ 80,117 (1991). Indeed, the courts have recognized the possibility of harassment or intimidation of these sources, and have consistently found that privacy interests in the identities of individuals providing information to government investigators are greatly amplified. Safecard, 926 F.2d at 1197 (D.C. Cir. 1991), cited in Stoel Rives, LLP, 25 DOE ¶ 80,189 at 80,724 (1996). Therefore, unless that person has waived this privacy interest, he is entitled to protection from disclosure of his activities.

We find a cognizable privacy interest at stake in this case. WSRC argues that the named individual has waived his personal privacy by filing two lawsuits in which he relied on the findings of the OIG, thus choosing to make his allegations against WSRC and other defendants public through litigation. Appeal at 2. WSRC further argues that an invasion of the named individual’s privacy by releasing the requested documents would not be unwarranted. Id. We do not accept as confirmation of an official proceeding WSRC’s unsupported allegations that the named individual has filed two lawsuits based upon findings and actions made by the OIG. We have previously stated that we cannot accept unsubstantiated allegations as official confirmation that an enforcement file or proceeding exists. See Keci Corporation, 26 DOE ¶ 80,150 at 80,662 (1997) (Keci). Therefore, we find that the individual retains a personal privacy interest in the requested material.

2. The public interest in disclosure

Having established the existence of a privacy interest, the next step is to determine whether there is a public interest in disclosure. We have held that the public interest in disclosure is measured not by the degree of the requester's interest in disclosure, but rather by "the right of the public to obtain the same information.” The Die-Gem Co., Inc., 19 DOE ¶ 80,124 at 80,569 (1989) (quoting Nix v. United States, 572 F.2d 998, 1003 (4th Cir. 1978)). The Supreme Court has held that information which does not directly reveal government operations or activities "falls outside the ambit of the public interest that the FOIA was enacted to serve." Reporters Committee, 489 U.S. at 775.

WSRC claims that there is an overriding public interest in the disclosure of the requested information. Appeal at 2. We agree that there is clearly a public interest in official misconduct. However, WSRC has neither explained the nature of the alleged misconduct nor provided any proof that allegations made by the named individual were part of an official proceeding. Courts have held that unsubstantiated allegations of official misconduct do not establish a public interest in disclosure. See McCutchen v. HHS, 30 F.3d 183 (D.C. Cir. 1994) (allegations that agency is not doing its job do not create a public interest sufficient to override privacy interest protected by Exemption 7(C)); Triestman v. Department of Justice, 878 F. Supp. 667 (S.D.N.Y. 1995) (no substantial public interest in disclosure of information concerning possible investigation of law enforcement agent). Therefore, we find that the public interest in disclosure of unsubstantiated allegations of official misconduct is negligible, and is outweighed by the individual’s real and identifiable privacy interest.

C. Disclosure of the Existence of Records Would Reveal Exempt Information

In reviewing this Appeal, we contacted employees of OIG to discuss the Glomar response to WSRC’s FOIA request. According to OIG, once it determined that WSRC was a third party requesting information about the named individual, it followed its policy of refusing to confirm or deny the existence of records in response to a FOIA request when six factors exist.(2) See Memorandum of Telephone Conversation between Jackie Becker, Attorney, OIG and Kimberly Jenkins-Chapman, OHA Staff Attorney (March 6, 2000). In this case, OIG determined that the six factors existed and on that basis issued a Glomar response to WSRC’s FOIA request. In order to use a Glomar response with Exemption 7, there must be a cognizable privacy interest at stake and insufficient public interest in disclosure to outweigh that privacy interest. See William H. Payne, 26 DOE ¶ 80,144 (1996). A Glomar response is justified when the records sought, if they exist, would be exempt from disclosure under Exemption 7(C) of the FOIA, and the confirmation of the existence of such records would itself reveal exempt information. See Antonelli v. FBI, 721 F.2d 615 (7th Cir. 1983); William H. Payne, 26 DOE ¶ 80,144 (1996).

We find that OIG’s Glomar response to WSRC was justified. Whether or not OIG enforcement records involving the named individual exist, refusal to confirm or deny the existence of these records is proper under Exemption 7(C). A Glomar response to such FOIA requests is necessary to protect the privacy rights of individuals whose identity may be revealed in an OIG investigation. By refusing to confirm or deny the existence of an enforcement file that mentions the named individual, OIG has properly protected that individual’s privacy rights. Thus, we find that OIG was justified in providing a Glomar response to this request because the confirmation of the existence of such records would itself reveal exempt information. Accordingly, we will deny this Appeal.

It Is Therefore Ordered That:

(1) The Appeal filed by Westinghouse Savannah River Company, LLC on February 1, 2000, OHA Case No. VFA-0556, is hereby denied.

(2) 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: March 13, 2000

(1)“Glomar” refers to the first instance in which a federal court upheld the adequacy of such a response. Phillippi v. CIA, 546 F.2d 1009 (D.C. Cir. 1976) (agency responded to a request for documents pertaining to a submarine-retrieval ship named the Hughes Glomar Explorer by neither confirming nor denying the existence of any such documents).

(2)When the following factors exist, OIG will issue a Glomar response: (1) the request is made by a third party; (2) the request is for information about a person identified by name; (3) the requested records, if they exist, would be contained in an enforcement file; (4) the named individual is not deceased; (5) the individual has not given the requester a waiver of his privacy right; and (6) there has been no official confirmation that an enforcement file or proceeding exists. See Keci, 26 DOE at 80,660 (quoting memorandum from Jackie Becker, OIG, to Linda Lazarus, OHA (November 27, 1996)).