Case No. VFA-0576, 27 DOE ¶ 80,278

May 26, 2000

DECISION AND ORDER

OF THE DEPARTMENT OF ENERGY

Appeal

Name of Petitioner: R.E.V. Eng. Services

Date of Filing: May 1, 2000

Case Number: VFA-0576

On May 1, 2000, R.E.V. Eng. Services (R.E.V.) filed with the Office of Hearings and Appeals (OHA) an Appeal from a determination by the Department of Energy’s (DOE) Office of Inspector General (DOE/IG). That determination responded to a request for information filed under the Freedom of Information Act (FOIA), 5 U.S.C. § 552, as implemented by the Department of Energy (DOE) in 10 C.F.R. Part 1004.

I. Background

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).

R.E.V. requested from DOE/IG documents regarding “the (unsealed) False Claims Act case: ?United States of America, ex rel., David E. Ridenour, et al., v. Kaiser-Hill Company, L.L.C., et al.’ Civil Action No. 97-WM-2191, filed October 08, 1997, in the United States District Court for the District of Colorado . . . .” Letter from David E. Ridenour, P.E., R.E.V., to DOE/IG (undated). In an April 11, 2000 response to R.E.V., DOE/IG stated that it had reviewed documents responsive to the request, including “case processing forms and printouts, memoranda of investigative activity, and internal memoranda,” and that “responsive documents are being withheld in their entirety pursuant to subsection (b)(7)(a) of the [FOIA], or Exemption 7(A).” Letter from Herbert Richardson, Principal Deputy Inspector General, DOE/IG, to David Ridenour (April 11, 2000) at 1. DOE/IG explained that “[r]elease of the withheld material at this time could prematurely reveal evidence and interfere with enforcement proceedings” and that “it is not in the public interest to disclose certain material compiled as part of an ongoing law enforcement proceeding.” Id.

II. Analysis

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.

A. Whether the Documents Withheld Were Compiled for Law Enforcement Purposes

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).

DOE/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 DOE/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 investigative files under Exemption 7. E.g., Rural Housing Alliance v. United States Dep’t of Agriculture, 498 F.2d 73 (D.C. Cir. 1974). Because the documents at issue in the present case are part of a DOE/IG investigative file, we find that the documents were compiled for law enforcement purposes and therefore satisfy the threshold test for application of Exemption 7.

B. Whether a Law Enforcement Proceeding is Pending

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").

The arguments of the Appellant go to both steps of this analysis. First, R.E.V. argues that the enforcement proceeding in question is not currently pending.

The information requested pertains only to the investigation made of [my False Claims Act case] and the recommendation that resulted from that specific investigation. As the Government, [Department of Energy and Department of Justice], chose not to participate in the Qui Tam case, there can be no “ongoing enforcement proceeding” in that area.

Appeal at 1-2. However, we contacted DOE/IG after the filing of the present Appeal, and DOE/IG informed us that the investigations of the Justice and Energy Departments into this matter have not yet been closed. Memorandum of telephone conversation between Jacqueline Becker, DOE/IG, and Steven Goering, OHA (May 8, 2000). Having no evidence to the contrary other than the bare assertions of the Appellant, we will accept the representations of DOE/IG and conclude that the enforcement proceeding in question is currently pending.

C. Whether Release of the Documents Could Reasonably be Expected to Interfere with the Pending Enforcement Proceeding

The Appellant further contends that release of the documents withheld would not interfere with the enforcement proceeding in question. He asserts that “[a]fter three (3) years of public and private discussions, every individual or corporation possibly involved is well aware of their position. Efforts to ?fabricate defenses, destroy evidence, intimidate . . . witnesses or otherwise impede . . .’ if indeed there were any, are long ago in place.” Appeal at 2 (ellipses in original).

We do not agree with this contention. The Supreme Court has found that agencies are not required, in support of withholding of information under Exemption 7(A), to make a particularized, case-by- case showing of interference with their investigations. Rather, agencies may rely on a showing that, “with respect to particular kinds of enforcement proceedings, disclosure of particular kinds of investigatory records while a case is pending would generally ?interfere with enforcement proceedings.’” NRLB v. Robbins Tire and Rubber Co., 437 U.S. 214, 236 (1978) (Robbins).

In making the “generic determinations” endorsed by the Court in Robbins, an agency has “a three- fold task,” as articulated by the United States Court of Appeals for the District of Columbia in Bevis v. United States Dep't of State, 801 F.2d 1386, 1389 (D.C. Cir. 1986). “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.

With regard to the first part of the task, the court in Bevis spoke of

categories that are sufficiently distinct to allow a court to grasp "how each . . . category of documents, if disclosed, would interfere with the investigation." The hallmark of an acceptable . . . category is thus that it is functional; it allows the court to trace a rational link between the nature of the document and the alleged likely interference.

Bevis, 801 F.2d at 1389 (quoting Crooker v. Bureau of Alcohol, Tobacco and Firearms, 789 F.2d 64, 67 (D.C. Cir. 1986) (quoting Campbell v. Department of Health and Human Services, 682 F.2d 256, 265 (D.C. Cir. 1982)) (emphasis in original)). Applying this principle to the categories before it, the court in Bevis found that although some of the categories employed by the agency (the FBI),

allow the court to "trace a rational link [to] . . . the alleged likely interference," others do not. For example, certain of the categories selected by the FBI define the nature of the information contained in the included documents, e.g., "the identities of possible witnesses and informants," "reports on the location and viability of potential evidence," and "polygraph reports." Such categories satisfy the Crooker functionalism requirement because they allow the court to assess the FBI's representations of how release of the documents would result in interference to the Salvadoran proceedings.

On the other hand, other categories employed by the FBI give absolutely no indication of the substance of the information contained. For example, some categories are identified only as "teletypes," or "airtels," or "letters." These provide no basis for a judicial assessment of the FBI's assertions that release of the documents so categorized would interfere with enforcement proceedings. The FBI cannot carry its burden with such irrelevant classifications.

Id. at 1390.

Turning to the present case, we find that DOE/IG identified three categories into which fell the documents responsive to the Appellant’s request, specifically “case processing forms and printouts, memoranda of investigative activity, and internal memoranda.” Unlike the categories approved in Bevis, none of these categories “define the nature of the information contained in the included documents.” For example, the category “case processing forms and printouts” could easily encompass documents that reveal nothing of substance relating to a particular investigation, similar to categories we have found in prior cases would “not seem to pose a threat of interference with the ongoing . . . investigations.” Anibal L. Taboas, 25 DOE ¶ 80,207 at 80,774 (1996) (rejecting category designated “notices of acceptance or dismissal of complaints”).

Further, given a standard definition of the word “memorandum,” e.g., “a written record or communication, as in a business office,” Webster’s II New Riverside University Dictionary 741 (1984), the categories “memoranda of investigative activity” and “internal memoranda” could include every document in an investigative file. When the “generic determinations” allowed under Exemption 7(A) employ categories that are this broad, those categories run the risk of becoming the very “blanket exemptions” Congress sought to avoid in crafting Exemption 7. Robbins, 437 U.S. at 236 (“Amendment of Exemption 7 was designed to eliminate ?blanket exemptions’ for Government records simply because they were found in investigatory files compiled for law enforcement purposes . . . .”).(1)

Thus, while it would not necessarily be fair to say that the categories named by DOE/IG give “no indication of the substance of the information contained,” the categorization of these documents should be refined. This will allow our office, a court, and the public “to trace a rational link between the nature of the document and the alleged likely interference.” Bevis, 801 F.2d at 1389, 1390. We will therefore remand this matter to DOE/IG so that it may issue a new determination to the Appellant, regrouping the documents it believes should be withheld into categories that are sufficiently distinct to allow one who is not privy to the actual contents of the documents to grasp how each category of documents, if disclosed, would interfere with the investigation.

It Is Therefore Ordered That:

(1) The Appeal filed by R.E.V. Eng. Services, Case No. VFA-0576, is 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. 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: May 26, 2000

(1) To the extent that prior decisions of this office approved the use of such broad categories, those decisions are not consistent with the holdings in Robbins and its progeny, and they will no longer be viewed as controlling authority. See Robert A. Speir, 27 DOE ¶ 80,265 (2000) (“memoranda of investigative activity, and investigator’s case processing material”); Kristine Anne Horpedahl, 27 DOE ¶ 80,202 (1999) (“investigative case file”).