Case No. VFA-0571, 27 DOE ¶ 80,283

June 14, 2000

DECISION AND ORDER

OF THE DEPARTMENT OF ENERGY

Appeal

Name of Petitioner: Robert H. Calhoun, Jr.

Date of Filing: April 27, 2000

Case Number: VFA-0571

Robert H. Calhoun, Jr. (Calhoun) filed this Appeal on April 27, 2000 with the Office of Hearings and Appeals (OHA) of the Department of Energy (DOE) in response to a determination that the DOE Albuquerque Operations Office (AO) issued to Calhoun on March 27, 2000. The determination concerned a request for information that Calhoun submitted pursuant to the Privacy Act, 5 U.S.C. § 552a, and the Freedom of Information Act (FOIA), 5 U.S.C. § 552, as implemented by the DOE in 10 C.F.R. Parts 1004 and 1008. If the present Appeal were granted, AO 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.

The Privacy Act was enacted to prevent the unnecessary dissemination of personal information compiled about individuals by federal agencies. The Act also requires each agency to permit a requester to gain access to information pertaining to him which is contained in any system of records maintained by the agency. 5 U.S.C. § 552a(d). However, under the Privacy Act, agencies may provide that some systems of records are not subject to the Act’s disclosure provisions, but only to the extent that those records fall under certain specified exemptions. 5 U.S.C. § 552a(k).

I. Background

On October 28, 1999, Calhoun requested a copy of his DOE Personnel Security File (PSF). AO found 70 documents in Calhoun’s PSF and withheld portions of five documents, specifically

Documents 11, 25, 26, 27, and 28. See Letter from AO to Calhoun (March 27, 2000) (Determination Letter). The Director of the Personnel Security Division of AO withheld portions of Documents 11, 25, 26, 27, and 28 pursuant to 5 U.S.C. § 552a(k)(5) (Exemption 5 of the Privacy Act) and 5 U.S.C. § 552(b)(7)(d) (Exemption 7(d) of the FOIA). According to the DOE, the information deleted from these documents was obtained by sources who were promised confidentiality in exchange for their information. Determination Letter at 2. Other withheld documents contained information that was generated by the Office of Personnel Management (OPM), and that material was referred to OPM for review and possible release. Id.

Calhoun appealed the Determination in a letter to OHA. He contends that the withheld documents should be released to him “in a paraphrased manner,” i.e., without names, times and dates. Letter from Calhoun to OHA (April 17, 2000) (Appeal Letter).

II. Analysis

A. Privacy Act Exemption (k)(5) and FOIA Exemption 7(D)

In first party requests such as this one, information responsive to the request is provided to the requester unless there is an exemption in each statute authorizing withholding. Applicable here are Privacy Act Exemption (k)(5) and FOIA Exemption 7(D).

Exemption (k)(5) of the Privacy Act permits the withholding of “investigatory material compiled solely for the purpose of determining suitability, eligibility or qualifications for Federal civilian employment, . . . or access to classified information, but only to the extent that the disclosure of such material would reveal the identity of a source who furnished information to the Government under an express promise that the identity of the source would be held in confidence . . .” 5 U.S.C. § 552a(k)(5). See Roy Chavez, 27 DOE ¶ 80,203 (1999). In creating Exemption (k)(5), Congress recognized the need to protect the sources of information to whom promises of confidentiality had been made. See Chey Temple, 25 DOE ¶ 80,194 (1996). AO stated that the sources were given confidentiality in this investigation. Determination Letter at 2. See also Frank Isbill, 27 DOE ¶ 80,215 (1999).

Exemption 7(D) of the FOIA provides that “records or information compiled for law enforcement purposes” may be withheld, “but only to the extent that the production of such documents “could reasonably be expected to disclose the identity of a confidential source . . . which furnished information on a confidential basis . . . and, in the case of a record or information compiled by . . . an agency conducting a lawful national security intelligence investigation, information furnished by a confidential source.” 5 U.S.C. § 552(b)(7)(D); 10 C.F.R. § 1004.10(b)(7)(iv). Exemption 7(D) is designed to protect confidential sources from retaliation that may result from the disclosure of their participation in law enforcement activities, and to encourage cooperation with law enforcement agencies by enabling the agencies to keep their informants’ identities confidential. Ortiz v. Department of Health and Human Services, 70 F.3d 729, 732 (2d. Cir. 1995). A source is confidential if the source provided information under an express assurance of confidentiality or in circumstances from which such an assurance could be reasonably inferred. Id., citing United States v. Landano, 508 U.S. 165; 113 S. Ct. 2014, 2019 (1993). We find that AO gave the sources an express assurance of confidentiality. Determination Letter at 2.

Calhoun does not contest the applicability of either exemption. In fact, he states that he “can appreciate the concern for confidentiality.” Appeal Letter. Rather, he suggests that the material be furnished to him without identifying names, times and dates. Id.

After a careful review of unredacted copies of the five withheld documents, we concur with AO’s deletions from Documents 11, 25, 26, and 27. AO properly deleted information that could compromise the identity of confidential sources. However, we do not agree with AO’s withholding of Document 28 in its entirety. According to AO, that action was necessary in order to shield from the requester the identity of the office that originated the document. Nonetheless, we find that the last page of Document 28 may contain releaseable information, i.e., information that would not, if released, reveal the identity of the confidential informant. Therefore, we find that DOE/AL should release the non-exempt information on the final page of Document 28, or issue a determination justifying any continued withholding of non-exempt information on this page.

B. Segregability

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); Greenpeace, 26 DOE ¶ 80,106 (1996), citing Canyon Consultants, 21 DOE ¶ 80,114 (1991) (release of non-exempt material not required if it would compromise the confidentiality of the withheld material). We conclude that, with the previously mentioned exception, AO did properly identify and release segregable, non-exempt material to the requester.

C. Public Interest

We find that release of the withheld material would not be in the public interest. Although DOE is committed to keeping the public informed about the agency, DOE is also concerned with preserving the privacy rights of confidential sources. By releasing the responsive documents with only those withholdings necessary to prevent identification of specific individuals (as AO has done in this case), DOE can provide maximum information while safeguarding individual rights and safety. Richard Levernier, 26 DOE ¶ 80,182 (1997).

It Is Therefore Ordered That:

(1) The Appeal filed on April 27, 2000 by Robert H. Calhoun, Jr., OHA Case No. VFA-0571, 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 Albuquerque Operations Office 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: June 14, 2000