Case No. VFA-0588, 28 DOE ¶ 80,103

July 26, 2000

DECISION AND ORDER

OF THE DEPARTMENT OF ENERGY

Appeal

Name of Petitioner:Martin Becker

Date of Filing: June 27, 2000

Case Number: VFA-0588

On June 27, 2000, Martin Becker completed the filing of an Appeal from a determination issued to him in response to a request for documents submitted 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. The Principal Deputy Inspector General (Authorizing Official) of the Office of the Inspector General of the DOE (OIG) issued that determination on May 23, 2000. This Appeal, if granted, would require that the DOE release information withheld pursuant to FOIA Exemptions 5, 6 and 7(C). 5 U.S.C. § 552(b)(5), (6), 7(C).

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. 10 C.F.R. § 1004.1.

I. Background

On November 10, 1999, Mr. Becker filed a request with the DOE for copies of any written information related to audits, investigations or inquiries the DOE prepared concerning the use of funds appropriated in line items 92-D-150 and 92-D-153 for use at the Savannah River Site. The Authorizing Official released several documents in their entirety, but redacted information from other documents or withheld documents in their entirety pursuant to Exemptions 5, 6 and 7(C).

II. Analysis

In his Appeal, Mr. Becker makes several arguments. First, he states that the DOE should release documents and portions of documents withheld pursuant to Exemption 5. Specifically, Mr. Becker argues that the DOE should release document 73 in its entirety and release the redacted information withheld from documents 84, 129 and 141. He argues that the DOE failed to provide him with a description of document 73 and did not segregate and release those portions of document 73 to which Exemption 5 does not apply. Second, Mr. Becker contends that the DOE should not have redacted names pursuant to Exemptions 6 and 7(C) from numerous documents. He states that the public interest in the release of the withheld names outweighs the privacy interest. Third, Mr. Becker requests that the DOE provide a description of documents numbered as 4, 5, 22-36, 40, 42-45, 48, 49, 53-60, 62-72, 79, 83, 86-97, 99-100, 104, 111, 114, 124, 131, 135, 143, 147- 149, 150-169, and 171-175. (1) Finally, Mr. Becker requests that the DOE release copies of documents referred to in document 81, since he believes these documents are responsive to his FOIA request. (2)

A representative of the DOE IG’s office has informed us that the office mistakenly withheld two responsive documents: document 73 and the “Executive Brief Complete” (referred to in document 81). The DOE IG’s office is currently reviewing these documents and will either release them to Mr. Becker or provide an explanation for withholding. The DOE IG’s office also provided information to us concerning the other documents referred to in document 81, which Mr. Becker claims are responsive to his FOIA request. Specifically, the DOE IG’s office confirmed that one of these documents, referred to as “Agent Notes,” was destroyed, pursuant to DOE IG’s standard procedures, prior to Mr. Becker’s FOIA request. The DOE IG’s office also stated that another document referred to in document 81 by the title, “Criminal and Civil Referrals, Responses and Results Documented in Case File,” is document 143. The DOE IG’s office confirmed that it returned document 143 to the Department of Justice, where the document had originated, prior to Mr. Becker’s FOIA request. See Record of July 20, 2000 Telephone Conversation between Linda Duvall, FOIA and Privacy Act Division, and Leonard M. Tao, OHA Staff Attorney. Accordingly, the remaining documents referred to in document 81 are not subject to Mr. Becker’s FOIA request.

We have confirmed, as mentioned in the Authorizing Official’s May 23, 2000 letter, that various DOE offices have not yet completed determinations concerning the releasability of responsive information. Id. Since final determinations have not been made on the documents of which Mr. Becker has requested descriptions, we will dismiss the portion of this appeal concerning documents 22-28, 30, 32-36, 40, 42-45, 48, 49, 53-60, 63- 67, 83, 86-97, 99-100, 104, 111, 114, 124, 131, 135, 147-149, 150-169, and 171-175 as not yet ripe for adjudication. See 10 C.F.R. § 1004.8(a).

A. Exemption 5

We will first consider Mr. Becker’s Exemption 5 arguments concerning documents 84, 129 and 141. Exemption 5 of the FOIA exempts from mandatory disclosure documents that are "inter-agency or intra-agency memorandums or letters which would not be available by law to a party other than an agency in litigation with the agency." 5 U.S.C. § 552(b)(5); 10 C.F.R. § 1004.10(b)(5). The Supreme Court has held that this provision exempts "those documents, and only those documents, normally privileged in the civil discovery context." NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 149 (1975) (Sears) (footnote omitted). The courts have identified several privileges that fall under this definition. These privileges include the attorney-client privilege, the attorney work-product privilege and the executive "deliberative process" or "predecisional" privilege. Coastal States Gas Corp. v. Department of Energy, 617 F.2d 854, 862 (D.C. Cir. 1980) (Coastal States). Only the "deliberative process" privilege is at issue here.

The "deliberative process" privilege of Exemption 5 permits the government to withhold documents that reflect advisory opinions, recommendations, and deliberations comprising part of the process by which government formulates decisions and policies. Sears, 421 U.S. at 150. The ultimate purpose of the exemption is to protect the quality of agency decisions by promoting frank and independent discussion among those responsible for making governmental decisions. Sears, 421 U.S. at 151. See EPA v. Mink, 410 U.S. 73, 87 (1973) (quoting Kaiser Aluminum & Chem. Corp. v. United States, 157 F. Supp. 939, 946 (Ct. Cl. 1958)) (Mink).

In order for Exemption 5 to shield a document, it 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 exemption thus covers documents that reflect, among other things, the personal opinion of the writer rather than the final policy of the agency. Id. Even then, however, the exemption only covers the subjective, deliberative portion of the document. Mink, 410 U.S. at 87-91. An agency must disclose factual information contained in the protected document unless the factual material is "inextricably intertwined" with the exempt material. Soucie v. David, 448 F.2d 1067, 1077 (D.C. Cir. 1971).

The Authorizing Official, pursuant to Exemption 5, redacted information from documents 84, 129 and 141. We reviewed the redacted information and found that it contains preliminary estimates of time needed to conduct the investigation, contemplated investigative actions, and various editorial comments concerning the IG investigation. We find that the redacted information in these documents is both predecisional and deliberative pursuant to Exemption 5. Furthermore, these redactions do not contain any segregable factual information. Accordingly, we must deny the portion of Mr. Becker’s appeal relating to these documents.

B. Exemption 6 and 7(C)

Exemption 6 shields from disclosure "[p]ersonnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy." 5 U.S.C. § 552(b)(6); 10 C.F.R. § 1004.10(b)(6). The purpose of Exemption 6 is to "protect individuals from the injury and embarrassment that can result from the unnecessary disclosure of personal information." Department of State v. Washington Post Co., 456 U.S. 595, 599 (1982). Exemption 7(C) allows an agency to withhold "records or information compiled for law enforcement purposes, if release of such law enforcement records or information . . . could reasonably be expected to constitute an unwarranted invasion of personal privacy. . . ." 5 U.S.C. § 552(b)(7)(C); 10 C.F.R. § 1004.10(b)(7)(iii).

In order to determine whether a record may be withheld under either Exemption 6 or 7(C), an agency must undertake a three-step analysis. First, the agency must determine whether a significant privacy interest would be compromised by the disclosure of the record. If no privacy interest is identified, the record may not be withheld pursuant to either of the exemptions. See Ripskis v. Department of Hous. and Urban Dev., 746 F.2d 1, 3 (D.C. Cir. 1984) (Ripskis). Second, the agency must determine whether release of the document would further the public interest by shedding light on the operations and activities of the government. See Reporters Committee for Freedom of the Press v. Department of Justice, 489 U.S. 749 (1989) (Reporters Committee). Finally, the agency must weigh the privacy interests it has identified against the public interest in order to determine whether release of the record either (1) would constitute a clearly unwarranted invasion of personal privacy (the Exemption 6 standard), or (2) could reasonably be expected to constitute an unwarranted invasion of personal privacy (the Exemption 7(C) standard). See generally Ripskis, 746 F.2d at 3; Stone v. FBI, 727 F. Supp. 662, 663-64 (D.D.C. 1990).

We have previously considered cases in which both Exemption 6 and 7(C) were invoked, and we stated that in such cases, provided the Exemption 7 threshold requiring a valid law enforcement purpose is met, we would analyze the withholding only under Exemption 7(C), the broader of the two exemptions. See, e.g., K.D. Moseley, 22 DOE ¶ 80,124 (1992). Since, as discussed below, all of the documents involved here were compiled for law enforcement purposes, any document that satisfies Exemption 7(C)'s "reasonableness" standard is entitled to protection. Conversely, documents not protected by Exemption 7(C) will be unable to satisfy Exemption 6's more restrictive requirement that they constitute a clearly unwarranted invasion of personal privacy.

The threshold test for withholding information under Exemption 7(C) is whether such information is compiled as part of or in connection with an agency law enforcement proceeding. FBI v. Abramson, 456 U.S. 615, 622 (1982). The scope of Exemption 7 encompasses enforcement of both civil and criminal statutes. Rural Housing Alliance v. Department of Agriculture, 498 F.2d 73, 81 & n.46 (D.C. Cir. 1974). By law, the OIG is charged with investigating waste, fraud, and abuse in programs and operations administered or financed by the DOE. 5 U.S.C. Appendix 3 § 4. OIG is therefore a classic example of an organization with a clear law enforcement mandate. Ortiz v. Department of Health and Human Services, 70 F.3d 729, 732-33 (2d Cir. 1995) (Ortiz), and cases cited therein. In the present case, the OIG documents were created pursuant to an investigation of alleged misconduct concerning the Westinghouse Savannah River Company. Consequently, the OIG documents at issue were created for a law enforcement purpose.

1. The Privacy Interest

We have carefully reviewed the redactions the Authorizing Official made in 33 documents pursuant to Exemptions 6 and 7(C). The Authorizing Official redacted from the documents the names of individuals who were contacted in the OIG's investigation. Because of the obvious possibility of harassment, intimidation, or other personal intrusions, the courts have consistently recognized significant privacy interests in the identities of individuals providing information to government investigators. Safecard Services, Inc. v. S.E.C., 926 F.2d 1197 (D.C. Cir. 1991) (Safecard); KTVY-TV v. United States, 919 F.2d 1465, 1469 (10th Cir. 1990) (KTVY- TV) (withholding identity necessary to avoid harassment of individual); Cucarro v. Secretary of Labor, 770 F.2d 355, 359 (3d Cir. 1985) (Cucarro); James L. Schwab, 21 DOE ¶ 80,117 at 80,556 (1991); Lloyd R. Makey, 20 DOE ¶ 80,109 (1990). The Authorizing Official states that the individuals named in the responsive documents have a privacy interest in remaining "free from intrusions into their professional and private lives." We agree that there is a privacy interest that protects these individuals who provided information to government investigators.

2. The Public Interest

Having established the existence of a privacy interest, the next step is to determine whether there is a public interest in disclosure of the information. The Supreme Court has held that there is a public interest in disclosure of information that “sheds light on an agency’s performance of its statutory duties.” Reporters Committee, 489 U.S. at 773. See Marlene Flor, 26 DOE ¶ 80,104 at 80,511 (1996) (Flor). The requester has the burden of establishing that disclosure would serve the public interest. Flor, 26 DOE at 80,511 (quoting Carter v. Department of Commerce, 830 F.2d 388 (D.C. Cir. 1987)). In his Appeal, Mr. Becker states that release of the withheld names could help his attempt to recover money on behalf of the United States. He argues that the people whose names have been withheld could provide testimony to support his qui tam action.

We find that Mr. Becker has not met his burden of demonstrating that disclosure of the withheld names would serve the public interest. Courts have held that unsubstantiated allegations of an agency’s misconduct are insufficient to establish a public interest in disclosure. In Spirko v. United States Postal Service, 147 F.3d 992 (D.C. Cir. 1998), the D.C. Circuit Court of Appeals found no public interest in names and information

pertaining to suspects and law enforcement officers absent any evidence of alleged misconduct by the agency. Moreover, the D.C. Circuit Court of Appeals found that “when . . . governmental misconduct is alleged as the justification for disclosure, the public interest is ?insubstantial’ unless the requester puts forward ?compelling evidence that the agency denying the FOIA request is engaged in illegal activity’ and shows that the information sought ?is necessary in order to confirm or refute that evidence.’” Davis v. United States Department of Justice,968 F.2d 1276, 1282 (D.C. Cir. 1992) (quoting Safecard at 1205-06). In his Appeal, Mr. Becker merely speculates that agency misconduct exists to form the basis of his qui tam action. Moreover, he can only speculate that the people whose names were withheld might provide supportive testimony in his litigation against the federal government. Such speculation is not enough for us to find that the release of these names would shed light on the agency’s performance of its statutory duties. Accordingly, we agree with the Authorizing Official and find that there is a minimal public interest in the disclosure of the material withheld pursuant to Exemption 6 and 7(C).

3. The Balancing Test

In determining whether documents may be withheld pursuant to either Exemption 6 or 7(C), courts have used a balancing test, weighing the privacy interests that would be infringed against the public interest in disclosure. Reporters Committee, 489 U.S. at 762 (1989); Safecard. We have concluded above that there is a substantial privacy interest at stake in this case. Moreover, we found that there is no more than a minimal public interest in the release of the names of the investigative sources. Therefore, we find that the public interest in disclosure of the information withheld pursuant to Exemption 6 or 7(C) from documents 1, 8, 10- 11, 14, 16, 37-39, 41, 46, 52, 75, 77-78, 81-82, 85, 98, 103, 129-130, 132-134, 141-142, 144-146, 170, 176 and 204 is outweighed by the real and identifiable privacy interests of the named individuals.

The FOIA requires that “[a]ny reasonably segregable portion of a record shall be provided to any person requesting such record after deletion of the portions which are exempt. . . .” 5 U.S.C. § 552(b) (1982). The Authorizing Official withheld, for the most part, only names and identifying information. However, during our review of the redacted documents, we found information withheld in document 75 (a one page document) that is segregable and factual. Accordingly, we will remand this document to the OIG to either release additional factual information from document 75 or provide a detailed explanation for withholding. We affirm the Authorizing Official’s findings concerning the remaining documents withheld pursuant to Exemption 6 or 7(C).

It Is Therefore Ordered That:

(1) The Freedom of Information Act Appeal Martin Becker completed filing on June 27, 2000 (Case Number VFA-0588) is hereby granted as set forth in paragraph (2) below, and is denied in all other respects.

(2) This matter is hereby remanded to the Principal Deputy Inspector General of the Office of the Inspector General of the Department of Energy to either release documents 73, 75, and the “Executive Brief Complete” (referred to in document 81) or provide a detailed explanation for withholding information.

(3) 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 situated, or in the District of Columbia.

George B. Breznay

Director

Office of Hearings and Appeals

Date: July 26, 2000

(1)Since the filing of Mr. Becker’s appeal, Mr. Becker has informed us that he has received copies of documents 29, 31, 62, 79, 143 and descriptions of documents 4, 5, and 68-72. Since Mr. Becker requested descriptions of these documents and the DOE complied, we will not conduct a further review regarding these documents.

(2)Mr. Becker also states that the DOE failed to perform an adequate search in that the DOE did not provide him an allegedly responsive DOE IG report, ER-B-98-02. Mr. Becker is correct in so far as that document was not provided to him. However, we find that this is not evidence of an inadequate search. The DOE IG representative informed us that the Authorizing Official did not provide the audit report to Mr. Becker because the report did not refer to any of the line item information Mr. Becker requested. Thus, the Authorizing Official did not find that the report was responsive to Mr. Becker’s request. See Record of July 20, 2000 Telephone Conversation between Linda Duvall, FOIA and Privacy Act Division, and Leonard M. Tao, OHA Staff Attorney.