Case No. VFA-0560, 27 DOE ¶ 80,265

March 16, 2000

DECISION AND ORDER

OF THE DEPARTMENT OF ENERGY

Appeal

Name of Petitioner:Robert A. Speir

Date of Filing:February 16, 2000

Case Number: VFA-0560

On February 16, 2000, 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). That determination was issued by the IG on February 2, 2000 in response to our remand of 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). Speir appealed that determination, contending that the IG had improperly applied Exemption 7(A) in withholding information. Robert A. Speir, 27 DOE ¶ 80,251 (2000) (Speir I). In Speir I, we found that the IG failed to provide a sufficient justification of its withholdings under Exemption 7(A). Specifically we held: “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.” Speir I at 80,891. Accordingly, we remanded a portion of the Appeal to the IG, stating:

[T]he 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.

Speir I at 80,891. On February 2, 2000, the IG issued a new determination letter in response to our remand. This new determination letter provides a description of the information it is continuing to withhold under Exemption 7(A). On February 16, 2000, Speir filed the present appeal, contending that the description provided by the IG of the withheld information is still inadequate.

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 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. United States Dep’t 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 and (2) whether release of information about it could reasonably be expected to cause some foreseeable 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 (3d 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 provided a sufficient description of the withheld records. The determination letter identifies the withheld information as “Memoranda documenting intergovernmental meetings, special agent investigative notes, notes of financial analysis, memoranda of investigative activity, and investigator’s case processing material.” Determination Letter at 1.

The determination letter also provides a sufficient articulation of the harm that could reasonably be expected to occur if the withheld information was released. Specifically the determination letter notes that:

Release of the withheld material at this time could prematurely reveal evidence and interfere with the ongoing enforcement proceeding. . . . [R]elease could tend to prematurely disclose enforcement efforts, or provide individuals involved in the investigation an opportunity to fabricate defenses, destroy evidence, intimidate actual or potential witnesses, or otherwise impede an appropriate resolution of the investigation.

Determination Letter at 1-2. Since we agree with the reasoning set forth by the IG in its determination letter, we find that the IG has properly withheld the information under Exemption 7(A).

It Is Therefore Ordered That:

(1) The Appeal filed by Robert A. Speir on February 16, 2000, Case Number VFA-0560, is hereby denied.

(2) 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: March 16, 2000