Case Nos. VFA-0592 and VFA-0594, 28 DOE ¶ 80,108

August 8, 2000

DECISION AND ORDER

OF THE DEPARTMENT OF ENERGY

Appeal

Name of Petitioners: Virginia Johnson

Terrence Willingham

Dates of Filing: July 5, 2000

July 19, 2000

Case Numbers: VFA-0592

VFA-0594

On July 5, 2000, Virginia Johnson filed an Appeal from a determination by the Department of Energy Headquarters Freedom of Information and Privacy Group (DOE/FOI). On July 19, 2000, Terrence Willingham filed an Appeal from a determination by DOE/FOI. These determinations responded to requests 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.

The FOIA generally requires that documents held by the federal government be released to the public upon request. 5 U.S.C. ' 552(a)(6)(A). However, Congress has provided nine exemptions to the FOIA setting forth the types of information agencies are not required to release. 5 U.S.C. ' 552(a)(6)(B). Under the DOE's regulations, a document exempt from disclosure under the FOIA shall nonetheless be released to the public whenever the DOE determines that disclosure is not contrary to federal law and in the public interest. 10 C.F.R. ' 1004.1.

I. Background

In a request dated May 18, 1999, Ms. Johnson requested “information from the [DOE]’s Automated Complaints Tracking System regarding complaints filed, processed, investigated, settled or adjudicated within the DOE,” including

Appeal at 1.

In a July 9, 1999 request, Mr. Willingham sought “copies of settlement agreements the Department of Energy entered into [from] 1992 to the present.” Letter from Terrence Willingham to Abel Lopez, DOE/FOI (July 9, 1999).

In response to the requests, DOE/FOI provided the following categories of documents to Ms. Johnson and Mr. Willingham,(1) deleting from the documents certain information under Exemption 6 of the FOIA, 5 U.S.C. ' 552(b)(6).

  1. Legend of explanation of closures associated with each case. 1 page
  2. Listing of cases through July 26, 1999. 62 pages (Information deleted under Exemption 6)
  3. Listing of complaints settled by case number, date closed, back pay award and corrective action. 11 pages (Information deleted under Exemption 6)
  4. Settlement agreements from 1992 to 1999. 268 pages (Information deleted under Exemption 6)

Letter from Abel Lopez, Director, DOE/FOI, to Virginia Johnson (June 2, 2000); Letter from Abel Lopez, Director, DOE/FOI, to Terrence Willingham (June 2, 2000).

In her Appeal of DOE/FOI’s response, Ms. Johnson raises a number of issues. First, she requests a detailed justification of the deletion of material from the documents under Exemption 6. Second, Ms. Johnson notes that “Enclosure 3 [an output of data from the complaints tracking system] contains a total of 231 listed settlement agreements,” and she was provided copies of only “70 settlement agreements from 1992 through 1999.” Third, she requests that she “be provided in writing an explanation of Enclosure 1, . . .” Finally, she states that she was never provided “all discrimination complaints filed by and settled in favor of DOE supervisors and DOE managers,” as she specifically requested. Johnson Appeal at 1-2. Mr. Willingham raises an issue similar to one brought forth by Ms. Johnson, complaining that “only about one third of [settlement agreements in cases listed as settled in the complaints tracking system] were provided to me.” Willingham Appeal at 1.

II. Analysis

A. DOE/FOI's Withholding of Information Under FOIA Exemption 6

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). In order to determine whether a record may be withheld under Exemption 6, an agency must undertake a three-step analysis. First, the agency must determine whether a significant privacy interest would be invaded by the disclosure of the record. If no privacy interest is identified, the record may not be withheld pursuant to Exemption 6. Ripskis v. Department of HUD, 746 F.2d 1, 3 (D.C. Cir. 1984). 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 Department of Justice v. Reporters Comm. for Freedom of the Press, 489 U.S. 749 (1989) (Reporters Committee); Hopkins v. Department of HUD, 929 F.2d 81, 88 (2d Cir. 1991); FLRA v. Department of Treasury Fin. Management Serv., 884 F.2d 1446, 1451 (D.C. Cir. 1989), cert. denied, 493 U.S. 1056 (1990). Finally, the agency must weigh the privacy interests it has identified against the public interest in order to determine whether the release of the record would constitute a clearly unwarranted invasion of personal privacy. Reporters Committee, 489 U.S. at 762-70.

In its June 2 determinations, DOE/FOI explained,


The names and other identifying information of individuals who have filed complaints with the Department have been withheld under Exemption 6. Disclosure of this information could subject the individuals to embarrassment, and unwanted communications and attention that would intrude into their personal lives. Moreover, disclosure of this information will not reveal any aspect about the operations and activities of the Government.

Letter from Abel Lopez, Director, DOE/FOI, to Virginia Johnson (June 2, 2000); Letter from Abel Lopez, Director, DOE/FOI, to Terrence Willingham (June 2, 2000).

We agree with the justification given by DOE/FOI for withholding identifying information from the documents it provided to the requesters. The federal courts have found a significant privacy interest in the names of federal employee parties to employment disputes. Rothman v. USDA, No. 94-8151, slip. Op. at 6 (C.D.Cal. June 17, 1996) (entire settlement agreement related to charge of employment discrimination that “could conceivably lead to embarrassment or friction with fellow employees or supervisors”); cf. Norwood v. Federal Aviation Admin., 993 F.2d 570 (6th Cir.) (identifying information from documents related to air traffic controllers strike).

As for whether release of the information withheld would further the public interest by shedding light on the operations and activities of the Government, we note that the information already released to the appellants clearly sheds light on the operation and activities of the Government as a respondent to discrimination complaints. However, the information withheld from those documents, the names of the individuals who filed complaints and other information that could identify them, says little if anything additional about the activities of the Government.

Ms. Johnson argues that releasing the location of the complainant within the DOE complex would be unlikely to identify the complainant. Memorandum of telephone conversation between Virginia Johnson and Steve Goering, OHA (July 26, 2000). However, if that information were in the hands of a fellow employee at the same DOE location, the employee very likely could use the information contained in the settlement agreement to identify the complainant. Moreover, the location of the complainant within the DOE complex adds no significant information regarding the activities of the Government, and thus does not appreciably further the public interest. Looking at the information withheld in this case, weighing the significant privacy interests of the complainants at stake on one hand and the slight public interest on the other, we conclude that DOE/FOI properly applied Exemption 6.

B. Adequacy of DOE's Search for Responsive Documents

We have stated on numerous occasions that a FOIA request deserves a thorough and conscientious search for responsive documents, and we have not hesitated to remand a case where it is evident that the search conducted was in fact inadequate. See, e.g., Butler, Vines and Babb, P.L.L.C., 25 DOE & 80,152 (1995). The FOIA, however, requires that a search be reasonable, not exhaustive. "[T]he standard of reasonableness which we apply to agency search procedures does not require absolute exhaustion of the files; instead, it requires a search reasonably calculated to uncover the sought materials." Miller v. Department of State, 779 F.2d 1378, 1384-85 (8th Cir. 1985); accord Weisberg v. Department of Justice, 745 F.2d 1476, 1485 (D.C. Cir. 1984). In cases such as these, "[t]he issue is not whether any further documents might conceivably exist but rather whether the government's search for responsive documents was adequate." Perry v. Block, 684 F.2d 121, 128 (D.C. Cir. 1982).

We contacted the DOE’s Office of Civil Rights within the Office of Economic Impact and Diversity (DOE/ED), which conducted the search for responsive documents. They informed us that settlement agreements that would have existed at the time of the requests at issue would have been found in the complaint files maintained by that office. Electronic mail from William Garrett, DOE/ED, to Steven Goering, (July 25, 2000). DOE/ED states that all settlement agreements kept in those files were provided to the requesters. Electronic mail from William Garrett, DOE/ED, to Steven Goering, (July 26, 2000). DOE/ED further explained,


The fact that there may be 144 complaints for which no settlement agreements were provided may be attributable to several reasons: (1) the period of time involved, including a time before our record keeping was exact; (2) the fact that some of the complaints involved Field cases for which copies of settlement agreements may not have been provided [to DOE Headquarters]; and (3) the fact that some of the complaints may have been settled by [DOE’s Office of General Counsel] for which copies of the settlement agreements were not provided.

Electronic mail from William Garrett, DOE/ED, to Steven Goering, (July 25, 2000).

This explanation by DOE/ED might well account for the fact that the office does not have copies of a number of settlement agreements, despite the fact that its own database lists the cases as settled. What remains unexplained, despite our offering DOE/ED ample opportunity to provide an explanation, is that some of the cases involved complaints filed against DOE/ED which were settled as recently as the month prior to Ms. Johnson’s request. It is baffling that DOE/ED would not have a copy of a settlement agreement in such a case. More troubling is the fact the DOE/FOI informed us that DOE/ED told it, while the requests were in process, that DOE/ED would not provide certain settlement agreements to DOE/FOI for processing because of promises of confidentiality in cases involving DOE/ED employees.(2)

We therefore will remand this case to DOE/FOI for further processing. First, DOE/FOI should refer the matter back to DOE/ED, which must conduct a new search and provide to DOE/FOI unredacted copies of all settlement agreements in its possession, whether or not DOE/ED believes those agreements to be responsive to the Appellants’ requests.(3) DOE/FOI can then independently determine which of the agreements provided are responsive to the requests, and release those agreements to the requesters, with information withheld as necessary under applicable FOIA exemptions. Second, if this new search does not account for all cases known to have been settled, DOE/FOI should refer the request to the DOE’s Office of General Counsel and appropriate field offices to conduct searches for responsive documents.

C. Remaining Issues Raised on Appeal

Ms. Johnson raises two additional issues in her Appeal. First, she asks for “an explanation of Enclosure 1, the Complaints Tracking System closure legend . . .” Appeal at 1. We consider this outside the scope of the present Appeal, since the FOIA does not “require[] an agency to answer questions . . .” Matthew Cherney, M.D., 27 DOE ¶ 80,239 at 80,857 (quoting Hudgins v. IRS, 620 F. Supp. 19, 21 (D.D.C. 1985)). Second, Ms. Johnson states that she was never provided “all discrimination complaints filed by and settled in favor of DOE supervisors and DOE managers,” as she specifically requested. Appeal at 1-2. We note that this particular item of Ms. Johnson’s request is confusing, at best, since a case is not typically “settled in favor” of one party. Rather a settlement represents a compromise by parties in lieu of a decision in favor of one of the parties. Thus, on remand, DOE/FOI should consult with Ms. Johnson to clarify this portion of her request.

For the reasons stated above, the present matter will be remanded to DOE/FOI for further proceedings in accordance with the instructions set forth in this Decision.

It Is Therefore Ordered That:

(1)The Appeals filed by Virginia Johnson, Case No. VFA-0592, and Terrence Willingham, Case No. VFA-0594, are granted as set forth in paragraph (2) below, and are in all other respects denied.

(2) This matter is hereby remanded to the Department of Energy Headquarters Freedom of Information and Privacy Group 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: August 8, 2000

(1). Though Ms. Johnson and Mr. Willingham filed separate requests, DOE/FOI provided the same documents to each requester “as a matter of administrative convenience and discretion . . .” Letter from Abel Lopez, DOE/FOI, to Virginia Johnson (June 2, 2000).

(2). Any promise of confidentiality would be unlikely to override the FOIA. See Public Citizen Health Research Group v. Food & Drug Admin., 704 F.2d 1280, 1287 (D.C. Cir. 1983) (“agencies cannot alter the dictates of the Act by their own express or implied promises of confidentiality”); Robles v. Environmental Protection Agency, 484 F.2d 843, 846 (4th Cir.1973) ("While, perhaps, a promise of confidentiality is a factor to be considered, it is not enough to defeat the right of disclosure."); Ackerly v. Ley, 420 F.2d 1336, 1340 n.3 (D.C. Cir. 1969) (“pledge[s] of confidentiality cannot, in and of themselves, override the Act.”). In any event, the existence of such promises would be a hollow justification for not providing documents, since many, if not most, of the settlement agreements that DOE/ED did provide to DOE/FOI, redacted copies of which were released to the requesters, also contained confidentiality clauses of one form or another.

(3). DOE/ED has informed us that many of the files that would contain settlement agreements have been archived. Electronic mail from William Garrett, DOE/ED, to Steven Goering, (July 25, 2000). On remand, DOE/ED shall either retrieve those files or refer the request for a search at the site where those files are now located.