Case No. VFA-0587, 28 DOE ¶ 80,113

September 21, 2000

DECISION AND ORDER

OF THE DEPARTMENT OF ENERGY

Appeal

Name of Petitioner: Government Accountability Project

Date of Filing: July 13, 2000

Case Number: VFA-0587

On July 13, 2000, Government Accountability Project (GAP) filed an Appeal from two determination letters issued to it on May 18, 2000, and May 22, 2000, by the Department of Energy's Richland Operations Office (Richland). Those determinations were issued in response to a request for information that GAP submitted on March 17, 2000, under the Freedom of Information Act (FOIA), 5 U.S.C. § 552, as implemented by the DOE in 10 C.F.R. Part 1004. In its Appeal, GAP asserts that Richland failed to provide it with documents in its possession that are responsive to its request.

The FOIA requires that a federal agency generally release documents to the public upon request. The FOIA, however, lists nine exemptions that set forth the types of information that a federal agency may withhold at its discretion. 5 U.S.C. § 552(b); 10 C.F.R. § 1004.10(b). The DOE regulations further provide that the DOE shall nonetheless release to the public a document exempt from disclosure under the FOIA whenever the DOE determines that disclosure is in the public interest.

I. Background

On March 17, 2000, GAP filed a request for information in which it sought “any and all records generated in connection with United States of America ex rel. David R. Carbaugh v. Westinghouse Hanford Company and Fluor Daniel Hanford, Inc., Civil Action No. SC-96-0171-WFN.” See Letter from GAP to Director, Office of Hearings and Appeals (OHA) (June 21, 2000) (Appeal Letter). On March 30, 2000, GAP narrowed this request to invoices, billing statements, requests for payment and documents related to the above captioned litigation. On May 18, 2000, Richland issued a determination which stated that it identified several documents responsive to GAP’s request. See Letter from Yvonne Sherman, FOIA Officer, Richland to GAP (May 18, 2000) (May 18 Determination Letter). However, Richland indicated that it was withholding certain portions of these documents pursuant to Exemption 4 of the FOIA. 5 U.S.C. § 552(b)(4). Id. Richland also determined that a portion of one document was not responsive and redacted this information. In addition, on May 22, 2000, Richland issued a second determination which stated that since its May 18th determination, it had located two additional documents responsive to GAP’s request. See Letter from Yvonne Sherman, FOIA Officer, Richland to GAP (May 22, 2000) (May 22 Determination Letter). Richland withheld these documents in their entirety pursuant to FOIA Exemption 4.

On July 13, 2000, GAP filed the present Appeal with the Office of Hearings and Appeals. In its Appeal, GAP challenges Richland’s May 18 and May 22 determinations and asserts that: (1) DOE should produce an entire document without deeming portions of it as unresponsive unless it claims a privilege; (2) monthly statements of legal expenses incurred by Fluor Hanford, Inc. (FHI) were improperly withheld under Exemption 4; (3) information regarding Westinghouse Hanford Company (WHC) legal expenses was relevant and should have been produced; and (4) two identified letters generated by WHC were improperly withheld under Exemption 4 and should have been produced.(1) Based on these assertions, GAP asks that the Office of Hearings and Appeals direct Richland to release the responsive documents requested.

II. Analysis

Adequacy of Richland’s Withholding for Lack of Responsiveness

In its Appeal, GAP first contends that information was improperly withheld from a June 22, 1999 WHC Letter to Theodore Turpin. Appeal Letter at 2. In its May 18 Determination Letter, Richland indicated that it redacted information from the letter it provided to GAP because it deemed the information as not responsive to GAP’s request. After reviewing this document, we have determined that the information redacted from the letter does not fall within the scope of GAP’s request and thus is unresponsive. It is important to note that the document in question here addresses several different topics of which only one was responsive to GAP’s request. Under these circumstances, it is reasonable to redact nonresponsive information. Accordingly, we will uphold Richland’s determination to redact information from the letter that is nonresponsive to the Appellant’s request.(2)

Adequacy of the Richland Exemption 4 Justification

Exemption 4 exempts from mandatory public disclosure “trade secrets and commercial or financial information obtained from a person and privileged or confidential.” 5 U.S.C. §552(b)(4); 10 C.F.R. § 1004.10(b)(4). In order to qualify under Exemption 4, a document must contain either: (1) trade secrets or (2) information that is “commercial” or “financial,” “obtained from a person,” and “privileged or confidential.” National Parks & Conservation Ass’n v. Morton, 498 F.2d 765 (D.C. Cir. 1974) (National Parks).

The courts recognize two distinct tests for determining whether information is “confidential” for purposes of this Exemption, depending on whether the government obtained it voluntarily or involuntarily. In National Parks, the United States Court of Appeals for the District of Columbia Circuit found that commercial or financial information submitted to the federal government involuntarily is “confidential” for purposes of Exemption 4 if disclosure of the information is likely either (1) to impair the government’s ability to obtain necessary information in the future or (2) to cause substantial harm to the competitive position of the person from whom the government obtained the information. Id. at 770; Critical Mass Energy Project v. NRC, 975 F.2d 871, 879 (D.C. Cir. 1992), cert. denied, 113 S. Ct. 1579 (1993). By contrast, information a submitter provides to an agency voluntarily is “confidential” if “it is of a kind that the provider would not customarily make available to the public.” Critical Mass, 975 F.2d at 879.

GAP’s remaining arguments generally assert that Richland improperly withheld information pursuant to Exemption 4. Specifically, GAP disputes that the information withheld, including monthly statements of legal expenses incurred by FHI, information regarding WHC legal expenses, and two letters generated by WHC, was submitted voluntarily and therefore subject to the test set forth in Critical Mass. Richland has stated:

According to the Department of Energy’s contract with Fluor Hanford, Inc., privileged and confidential legal documents prepared by or for contractors that are not reimbursed under the contract are the property of FHI and not subject to the provisions of the FOIA. RL [Richland] has not made a determination as to whether it will reimburse its contractors for this litigation. Therefore, until that decision is made, RL must protect the information as if the decision was not to reimburse the contractor.

We have also withheld monthly statements of costs incurred from the law firms. We have determined that these documents were not required to be submitted to DOE as they were submitted voluntarily by FHI and would not be required to be submitted to DOE unless litigation costs were reimbursed. At this stage, the documents have been provided to DOE as a courtesy to assist us in our budget planning processes.

May 18 Determination Letter.

Richland also applied the above explanation to the other requested documents. It appears that Richland analyzed the confidentiality of the requested documents under the test set forth in Critical Mass, as if they had been submitted to the DOE voluntarily. However, it is unclear that the withheld documents were in fact voluntarily submitted. We contacted officials at the Richland office to ascertain the process by which the DOE reimburses litigation costs. Based on these discussions, it is apparent that the general method for contractors to receive reimbursement for their litigation costs is through submitting documents to the DOE. It is also apparent that this is the contractors’ only method of obtaining payment and that they submit these documents for the purpose of receiving reimbursement from the DOE. We are therefore not convinced that these documents were voluntarily submitted to the DOE, but rather believe that they were involuntarily submitted, in order to receive reimbursement. Accordingly, we will remand the portion of GAP’s Appeal related to Exemption 4 to Richland with a direction to analyze the documents under the standard set forth in National Parks and to issue a new determination with respect to the documents in question.(3)

It Is Therefore Ordered That:

(1) The Appeal filed by Government Accountability Project on July 13, 2000, is granted as specified in paragraph (2).

(2) This matter is remanded to the Department of Energy’s Richland Operations Office for further processing 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 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: September 21, 2000

(1) In its Appeal, GAP says it is unclear whether Richland identified any documents regarding WHC’s legal expenses. Richland has informed us that it did identify documents in that category and applied the same Exemption 4 analysis to these documents as it did to the FHI legal expenses in both its May 18 and May 22 Determination Letters.

(2) GAP may, however, elect to file a new FOIA request for the entire document.

(3) In addition, GAP requests that it be provided with a Vaughn index, i.e. an index identifying each responsive document, the exemption under which it is being withheld and an explanation of why that exemption is applicable. On previous occasions, we have stated that, although such an index may be required when an agency is in litigation with a FOIA requester, this degree of specificity is not required at the administrative stages of a FOIA request. See, e.g., Rockwell International, 21 DOE ¶ 80,105 at 80,527 (1991); Natural Resources Defense Council, 20 DOE ¶ 80,145 at 80,627 (1990). At the administrative levels, determinations need only provide a general description of the withheld material, and a statement of the reason for withholding each document. Therefore, we reject GAP’s request for a Vaughn index. However, in its new determination Richland should provide sufficient details to meet this second standard.