Case No. VFA-0563, 27 DOE ¶ 80,271

April 5, 2000

DECISION AND ORDER

OF THE DEPARTMENT OF ENERGY

Appeal

Name of Petitioner: Tri-Valley CAREs

Date of Filing: March 8, 2000

Case Number: VFA-0563

On March 8, 2000, Tri-Valley CAREs filed an Appeal from a final determination that the Oakland Operations Office (Oakland) of the Department of Energy (DOE) issued on February 3, 2000. In its determination, Oakland denied Tri-Valley CAREs’ request for information submitted under the Freedom of Information Act (FOIA), 5 U.S.C. § 552, as implemented by the DOE in 10 C.F.R. Part 1004. This Appeal, if granted, would require Oakland to release the information it withheld.

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 reflected 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.

Background

In a letter dated January 25, 2000, Tri-Valley CAREs submitted a FOIA request to Oakland for a copy of a report by Lawrence Livermore National Laboratory (LLNL) to DOE on rebaselining for the National Ignition Facility (NIF). Tri-Valley CAREs asserted that it was not a draft document. Further, it stated that it was signed by LLNL Associate Director George Miller and issued in November 1999. Request Letter dated January 25, 2000, from Sally Light, Nuclear Program Analyst, Tri-Valley CAREs, to Oakland. On February 3, 2000, Oakland denied the request, stating that the document was still a draft and, therefore, was being withheld under Exemption 5 of the FOIA. Determination Letter dated February 3, 2000, from Martin J. Domagala, Deputy Manager, FOIA Authorizing Official.

In its Appeal, Tri-Valley CAREs claims that the report is final and, therefore, not predecisional and deliberative. Appeal Letter dated March 2, 2000, from Marylia Kelley, Executive Director, Tri-Valley CAREs, to Director, Office of Hearings and Appeals (OHA),

DOE. Secondly, it argues that the report has been referred to as a “final” report and used by the Secretary of Energy Advisory Board (SEAB) NIF Task Force, which includes non-governmental members. Id. It claims the deliberative process privilege has been waived, if it existed at all. Id. Finally, Tri-Valley CAREs maintains that information that was not predecisional or deliberative should have been segregated and released. Id.

Analysis

Exemption 5 protects “inter-agency or intra-agency memorandums or letters which would not be available by law to a party … in litigation with the agency.” 5 U.S.C. § 552(b)(5). The language of Exemption 5 has been construed to “exempt those documents, and only those documents, normally privileged in a civil discovery context.” NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 149 (1975) (Sears).

Included within the boundaries of Exemption 5 is the "predecisional" privilege, sometimes referred to as the "executive" or "deliberative process" privilege. Coastal States Gas Corporation v. Department of Energy, 617 F.2d 854, 862 (D.C. Cir. 1980) (Coastal States). The predecisional privilege permits the agency to withhold records that reflect advisory opinions, recommendations, and deliberations comprising part of the process by which government decisions and policies are formulated. Sears, 421 U.S. at 150. It is intended to promote frank and independent discussion among those responsible for making governmental decisions. EPA v. Mink, 410 U.S. 73, 87 (1973) (Mink); Kaiser Aluminum & Chemical Corp. v. United States, 157 F. Supp. 939 (Ct. Cl. 1958)).

In order to be shielded by Exemption 5, a record must be both predecisional, i.e., generated before the adoption of agency policy, and deliberative, i.e., reflecting the give-and-take of the consultative process. Coastal States, 617 F.2d at 866. The predecisional privilege of Exemption 5 covers records that typically reflect the personal opinion of the writer rather than the final policy of the agency. Id. Consequently, the privilege does not generally protect records containing purely factual matters.

There are, however, exceptions to this general rule. The first exception is for records in which factual information was selected from a larger collection of facts as part of the agency's deliberative process, and the release of either the collection of facts or the selected facts would reveal that deliberative process. Montrose v. Train, 491 F.2d 63 (D.C. Cir. 1974); Dudman Communications v. Department of Air Force, 815 F.2d 1564 (D.C. Cir. 1987). The second exception is for factual information that is so inextricably intertwined with deliberative material that its exposure would reveal the agency's deliberative process. Wolfe v. HHS, 839 F.2d 769, 774-76 (D.C. Cir. 1988). Factual matter that does not fall within either of these two categories does not generally qualify for protection under Exemption 5.

In addition to providing categories of records exempt from mandatory disclosure, 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). Thus, if a document contains both predecisional matter and factual matter that is not otherwise exempt from release, the factual matter must be segregated and released to the requester.

We believe that the report Tri-Valley CAREs requested is a draft document. Although it was signed by George Miller, Associate Director of LLNL, it was not released to the public. It contained LLNL’s recommendations to DOE for the rebaselining of the NIF. Tri-Valley CAREs argues that because the report was used by the SEAB, whose members consist of non-DOE employees, it has been released to the public. We disagree. Courts have determined that Exemption 5 protects from mandatory disclosure more than documents circulated strictly among agency personnel. See Soucie v. David, 448 F.2d 1067, 1078 (D.C. Cir. 1971). Exemption 5 has been found to extend as well to communications between an agency and individuals whom the agency consults. See, e.g., Lead Indus. Ass’n v. OSHA, 610 F.2d 70,83 (2d Cir. 1979); American Soc. Of Pensions Actuaries v. Pension Benefit Guaranty Corp., 3 GDS ¶ 83,182, at 83,845 (D.D.C. 1983).

Specifically, courts have found that an agency’s limited release of a document to outsiders to serve a legitimate government purpose does not waive the document’s confidentiality under Exemption 5. See, e.g., Cooper v. Department of the Navy, 558, F.2d 274, 278 (5th Cir. 1977); modified on rehearing, 594 F.2d 484, 485 (5th Cir. 1979), cert. denied, 444 U.S. 926 (1979); Badhwar v. Department of the Air Force, 629 F. Supp. 478 (D.D.C. 1986); see also Coalition for Safe Power, 16 DOE ¶ 80,127 (1987); Idaho Statesman, 7 DOE ¶ 80,102, at 80,504 (1981). The SEAB provides advice, information, and recommendations to the Secretary of Energy on DOE’s basic and applied research activities, economic and national security policy, educational issues, laboratory management, and on any other activities and operations of the DOE as the Secretary requests. In this instance, the Secretary consulted with the SEAB to formulate recommendations on the rebaselining of the NIF. Disclosure of the report to the members of the SEAB in order to utilize their expertise in the rebaselining of the NIF consequently is not a waiver.

However, Oakland’s Determination Letter did not address the issues of whether the report contains any factual information that could be released. Accordingly, we will remand the case to Oakland. On remand, Oakland shall review the document and segregate and release all factual portions of the report, or issue a new determination that justifies their withholding.

It Is Therefore Ordered That:

(1) The Appeal filed by Tri-Valley CAREs, on March 8, 2000, Case No. VFA-0563, is hereby granted as set forth in Paragraph (2) below.

(2) This matter is hereby remanded to the Oakland Operations Office 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 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: April 5, 2000