Case No. VFA-0558, 27 DOE ¶ 80,270

April 3, 2000

DECISION AND ORDER

OF THE DEPARTMENT OF ENERGY

Appeal

Name of Petitioner: Center for Government Accountability

Date of Filing: March 6, 2000

Case Number: VFA-0558

The Center for Government Accountability (CGA) filed this Appeal on March 6, 2000 with the Office of Hearings and Appeals (OHA) of the Department of Energy (DOE) in response to a determination that the DOE Office of the Inspector General (OIG) issued to CGA on February 2, 2000. The determination concerned a request for information that CGA submitted 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, OIG would be required to release any responsive material.

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 the agency. 5 U.S.C. § 552(b). Those nine categories are repeated in the DOE regulations implementing the FOIA. 10 C.F.R. § 1004.10(b). The DOE regulations further provide that documents exempt from mandatory 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 December 23, 1997, CGA requested copies of several categories of documents, including: (1) all documents that were withheld in FOIA request 94112804H; (2) all documents produced in the investigation of a complaint that CGA filed with OIG; and (3) all documents that pertain to the hiring of independent contractors by DOE and its prime contractors, including, but not limited to, Lockheed Martin. Letter from OIG to CGA (February 2, 2000) (Determination Letter). On February 2, 2000, the OIG provided some responsive material to CGA, but withheld two documents, Document 7 and Document 8, in their entirety under Exemption 5 of the FOIA. According to OIG, these documents

were part of the final investigative report package concerning CGA’s complaint.(1) Document 7 is the draft indexed report of investigation and draft transmittal memorandum. Document 8 is the report reference sheet. Determination Letter at 1. In its determination, OIG justified withholding these documents by explaining that the withheld material is deliberative information. OIG further stated that the disclosure of Documents 7 and 8 was not in the public interest, because disclosure “would inhibit frank and open discussion . . . and would hinder the government’s ability to reach sound and well reasoned resolutions.” Determination Letter at 2.

CGA appeals this determination and contends that the documents are not truly deliberative because OIG did not rely on the contents of Documents 7 and 8 to produce the final report, Document 52. Letter from CGA to Director, OHA (February 14, 2000). CGA also argues that the withheld draft report contains material of public interest, “especially because no public report was ever released.” Appeal at 1.

II. Analysis

Exemption 5 of the FOIA exempts from mandatory disclosure documents that are “inter-agency or intra-agency memoranda 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). The Supreme Court has held that 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) (NLRB). The “deliberative process” privilege falls under this exception, and this is the privilege that OIG relied upon in its determination. Coastal States Gas Corp. v. Department of Energy, 617 F.2d 854, 862 (D.C. Cir. 1980) (Coastal States).

The deliberative process privilege shields from public disclosure records reflecting the predecisional, consultative process of an agency. See Matthew Cherney, M.D., 27 DOE ¶ 80,187 (1999); Los Alamos Study Group, 27 DOE ¶ 80,177 (1999) (LASG); Edwin S. Rothschild, 27 DOE ¶ 80,150 (1998) (Rothschild). Predecisional materials are not exempt merely because they are prepared prior to a final action, policy, or interpretation. These materials must be a part of the agency’s deliberative process by which decisions are made. Vaughn v. Rosen, 523 F.2d 1136, 1144 (D.C. Cir. 1975). This privilege was developed primarily to promote frank and independent discussion among those responsible for making government decisions. EPA v. Mink, 410 U.S. 73, 87 (1973) (Mink) (quoting Kaiser Aluminum & Chem. Corp., v. United States, 157 F. Supp. 939 (Cl. Ct. 1958)). The ultimate purpose of the exemption is to protect the quality of agency decisions. NLRB, 421 U.S. at 151 (1975).

CGA contends that Exemption 5 does not apply to Documents 7 and 8 because they were not part of the deliberative process used to produce the final report of investigation, Document 52. CGA alleges that Document 52, the final report, is “diametrically opposite to what I was told was in the draft report by [OIG investigators] Sumner and Bautz, and further is not consistent with documentation released in this FOIA [request].” Electronic mail message from David Hackett, CGA to Valerie Vance Adeyeye, OHA (March 16, 2000). CGA also argues that draft reports are not deliberative because “deliberation is generally finished by the time a draft report is produced.” Letter from CGA to OHA (February 14, 2000). According to CGA, draft reports only require minor changes prior to release in final form, and thus cannot be considered deliberative. Id. After a thorough review of Documents 7, 8, and 52, we do not agree. An agency may determine that a document is predecisional without identifying an agency final decision based on that document, provided that the agency establishes both the deliberative process involved and the role played by the withheld documents in the course of that process. NLRB, 421 U.S. at 151 n.18; Coastal States, 617 F.2d at 868.; Hunt v. U.S. Marine Corp., 935 F. Supp. 46, 51 (D.D.C. 1996). Our review convinces us that Documents 7 and 8 were an integral part of the deliberative process that took place within OIG in order to arrive at findings on CGA’s complaint. Therefore, we find that Documents 7 and 8 contain information that is exempt from disclosure under Exemption 5 of the FOIA.

CGA also argues that Documents 7 and 8 have information vital to the public interest because “they reflect findings that were later denied in the . . . final report.” Electronic mail message from CGA to OHA (March 16, 2000). DOE regulations provide that “[t]o the extent permitted by other laws, the DOE will make records available which it is authorized to withhold under 5 U.S.C. § 522 whenever it determines that such disclosure is in the public interest.” 10 C.F.R. § 1004.1. However, OIG correctly determined that the release of Documents 7 and 8 would not be in the public interest since it found that releasing the documents would “inhibit frank and open discussion of matters and would hinder the government’s ability to reach sound and well reasoned resolutions.” Determination at 2.

The FOIA also requires the agency to provide to the requester any reasonably segregable portion of a record after deletion of the portions that are exempt. See 5 U.S.C. § 552(b). See also FAS Engineering Inc., 27 DOE ¶ 80,131 (1998), quoting Soucie v. David, 448 F.2d 1067, 1077 (D.C. Cir. 1971) (factual material must be disclosed unless inextricably intertwined with exempt material). Since the determination letter did not identify segregable, nonexempt factual material, we find OIG’s determination to be insufficient in this regard. Our review finds that the documents contain some reasonably segregable factual information that may not be withheld under Exemption 5 unless inextricably intertwined with exempt material. Accordingly, we shall remand this matter to OIG. On remand, OIG must review the withheld documents and segregate and release all purely factual portions, or issue a new determination that justifies withholding the factual portions of the documents.

It Is Therefore Ordered That:

(1) The Appeal filed on March 6, 2000 by the Center for Government Accountability, OHA Case No. VFA-0558, is hereby granted as set forth in paragraph (2) below, and is in all other respects denied.

(2) This matter is hereby remanded to the Office of Inspector General, for further proceedings in accordance with the instructions set forth in this Decision and Order.

(3) This is a final Order of the Department of Energy from 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: April 3, 2000

(1)OIG did not release a copy of the final investigative report to CGA because CGA received that document in November 1996. Determination at 2; Electronic Mail Message from David Hackett, CGA to Valerie Vance Adeyeye, OHA Staff Attorney (March 16, 2000).