Case No. VFA-0599, 28 DOE ¶ 80,123

November 2, 2000

DECISION AND ORDER

OF THE DEPARTMENT OF ENERGY

Motion for Reconsideration

Name of Petitioner:Martin Becker

Date of Filing: August 2, 2000

Case Number: VFA-0599

On August 2, 2000, Martin Becker filed a Motion for Reconsideration of a Decision and Order that the Office of Hearings and Appeals (OHA) of the Department of Energy (DOE) issued on July 26, 2000. Martin Becker, Case No. VFA-0588 (July 26, 2000). The Decision and Order considered Becker's Appeal of a determination the Principal Deputy Inspector General of the Office of the Inspector General of the DOE (IG) issued on May 23, 2000. The 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

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). Letter from Herbert Richardson, Principal Deputy Inspector General, to Martin Becker (May 23, 2000).

In considering Becker's Appeal, we upheld the IG's withholding of information under FOIA Exemption 5. We also affirmed the IG's findings (with the exception of one document that we remanded to the IG for further consideration) concerning the information withheld pursuant to Exemption 6 and 7(C), based upon our determination that the public interest in disclosure of the information was outweighed by real and identifiable privacy interests.

In requesting reconsideration of our decision, Becker argues that “the factual premise for OHA's determination of public interest . . . is incorrect. I am not in litigation with the agency or the federal government. The [decision] on page 5 states 'in his litigation against the federal government.'” Motion for Reconsideration at 1. Becker also contends that our decision did not adequately address one portion of his appeal, in which he referred to one of the documents he received, identified as Document 81, and contended that he had not been provided all other documents that were referenced in Document 81.

The DOE FOIA regulations do not explicitly provide for reconsideration of a final Decision and Order. See 10 C.F.R. ' 1004.8. However, in prior cases, we have used our discretion to consider Motions for Reconsideration where circumstances warrant. See, e.g., Nathaniel Hendricks, 25 DOE & 80,173 (1996). We will exercise that discretion here to consider the issues raised by the Appellant.

II. Analysis

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). The threshold requirement in any Exemption 7 inquiry is whether the documents are compiled for law enforcement purposes, that is, as part of or in connection with an agency law enforcement proceeding. See William Payne, 26 DOE ¶ 80,144 (1996); F.B.I. v. Abramson, 456 U.S. 615, 622 (1982). The IG is a law enforcement body charged with investigating and correcting waste, fraud or abuse in programs administered or financed by the DOE. See 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). As a result of its duties, we find that the IG compiles reports involving official misconduct for “law enforcement purposes” within the meaning of Exemption 7(C). See Burlin McKinney, 25 DOE ¶ 80,149 (1995).

In order to determine whether information may be withheld under 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 invaded by the disclosure of the record. If no privacy interest is identified, the record may not be withheld pursuant to either exemption. Ripkis 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 Hopkins v. Department of HUD, 929 F.2d 81, 88 (2d Cir. 1991); Department of Justice v. Reporters Comm. for Freedom of the Press, 489 U.S. 749 (1989); FLRA v. Department of Treasury Financial Management Service, 884 F.2d 1446, 1451 (D.C. Cir. 1989), cert. denied, 110 S. Ct. 864 (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 (the Exemption 6 standard), or could reasonably be expected to constitute an unwarranted invasion of personal privacy (the Exemption 7(C) standard). Reporters Committee, 489 U.S. at 762-770. See generally Ripkis, 746 F.2d at 3 (Exemption 6); Stone v. FBI, 727 F. Supp. 662, 663-663 (D.D.C. 1990) (Exemption 7(C)).

We have previously considered cases in which both Exemptions 6 and 7(C) were invoked, and we stated that in such cases, providing 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., David Ridenour, 27 DOE ¶ 80,143 (1998); Richard Levernier, 26 DOE ¶ 80,182 (1997); K.D. Moseley, 22 DOE ¶ 80,124 (1992). Because all of the responsive documents that were withheld pursuant to Exemptions 6 and 7(C) were also compiled for law enforcement purposes, any document that satisfies Exemption 7(C)’s “reasonableness” standard will be protected. 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.

A. Privacy Interests

In identifying the relevant privacy interests in our July 2000 decision we stated,

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).

Martin Becker, Case No. VFA-0588 (July 26, 2000) at 4. Mr. Becker argues that if the IG has withheld the names of federal employees, similar privacy interests would not be implicated by their release. Memorandum of telephone conversation between Martin Becker and Steven Goering, OHA (October 20, 2000). Indeed, some of the identities the IG withheld were those of law enforcement personnel of both the IG and the Department of Justice, though the IG’s determination refers only to the withholding of the identities of “subjects, witnesses, sources of information, and other individuals . . . .” Letter from Herbert Richardson, Principal Deputy Inspector General, to Martin Becker at 2. Because the IG’s determination does not explain why it withheld information identifying law enforcement personnel, or even specify that it did withhold such information, the determination is not adequate. An explanation of withholding under the FOIA must be “sufficient to allow the requester to understand the determination and if appropriate to formulate a meaningful appeal.” See City of Federal Way, 27 DOE ¶ 80,191 at 80,725-26 (1999); Klickitat Energy Partners, 25 DOE ¶ 80,132 (1995); Arnold & Porter, 12 DOE ¶ 80,108 at 80,527 (1984); Exxon Co., USA, 5 DOE ¶ 80,178 at 80,813 (1980); Cities Service Co., 5 DOE ¶ 80,101 at 80,502 (1980). Therefore, we will remand this matter to the IG to either release the names of the federal employees or issue a new determination explaining its continued withholding of those names.(1)

B. Public Interest

Mr. Becker also takes issue with our July 2000 decision's analysis of the public interest, in which analysis we stated 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.

Martin Becker, Case No. VFA-0588 (July 26, 2000) at 5.

However, Mr. Becker's focus on our mischaracterization of his litigation as being “against the federal government” misses the point of the above analysis. Notwithstanding the identity of the defendant in his qui tam action, the finding relevant to our public interest analysis was that Mr. Becker “merely speculates” as to the existence of misconduct and “can only speculate that the people whose names were withheld might provide” testimony supporting his allegations of misconduct. The fact that the misconduct about which he speculates was allegedly on the part of a government contractor, rather than a government agency, or that he brings his qui tam action on behalf of the public, does not make those allegations, or his belief that the individuals whose privacy is at stake would support the allegations, any less speculative.(2)

To assure us that he is not merely speculating, the Appellant provides what he believes are the names of the individuals whose identities have been shielded by redactions, and argues that these individuals “will be able to help the Court [hearing the qui tam case] understand our contentions in a manner helpful to the U.S.” Addendum to 8/2/00 Request for Reconsideration (August 14, 2000). However, to determine the public interest in information requested under the FOIA, we must consider whether the release of the information would “shed[] light on an agency's performance of its statutory duties . . . .” Reporters Committee, 489 U.S. at 773. While the documents the IG already provided to Mr. Becker may in fact shed light on the activities of the IG, little if any additional light would be shed by revealing the individual indentities redacted from the documents. And though the Appellant may believe that knowing those identities could aid him in his qui tam action, and thereby indirectly further the public interest,

whether an invasion of privacy is warranted cannot turn on the purposes for which the request for information is made. Except for cases in which the objection to disclosure is based on a claim of privilege and the person requesting disclosure is the party protected by the privilege, the identity of the requesting party has no bearing on the merits of his or her FOIA request.

Id. at 771. We therefore agree with the IG that substantial privacy interests clearly outweigh the insignificant public interest in the identities of some of individuals withheld from the requester.

B. Whether the IG's Determination Identified All Responsive Documents

In his Appeal, Mr. Becker referred to one of the documents that the IG provided to him, identified as Document 81 and titled “Case Closure Checklist,” and contended that this document referred to other documents that the IG had not provided to him. In our decision, we noted that the IG had inadvertently not provided to Mr. Becker one of the documents referred to in Document 81, an “Executive Brief.” Although this document has since been provided to Mr. Becker, he asks for reconsideration because he does not believe our decision adequately addressed whether all documents referred to in Document 81 or attached to that document have been provided to him.

First, we note that Mr. Becker's original request sought "any reports, summaries or other written reflections of any audits, investigations or inquiries, prepared by the DOE IG, DOE CFO or any other authorized DOE component concerning use of funds appropriated in Line-Items 92-D-150 and 92-D-153 for use at the Savannah River Site." The fact that Mr. Becker may have now identified additional documents that are referenced in the documents the IG provided to him does not necessarily mean that these additional documents should have been identified by the IG or provided to Mr. Becker in response to his original request. For example, there may be documents referred to in Document 81 that fall outside the scope of Mr. Becker's original request, and Mr. Becker certainly may request those documents through a separate FOIA request. However, the relevant question for purposes of this decision is whether the IG conducted an adequate search for documents responsive to Mr. Becker's original request and identified to the Appellant each of the documents it located.

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). Nonetheless, "the 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 therefore have contacted the IG and obtained information from the individual responsible for conducting the search. She informed us that she first searched the IG's case tracking database, using as search terms the two line items specified in Mr. Becker's request. This search did not reveal any cases. The IG then contacted Mr. Becker to clarify what he was looking for, and was thereby able to identify two case files, Nos. I98SR009 and I96SR026 (corresponding to IG investigations of complaints filed by Mr. Becker). The entire contents of both of these files were considered responsive to Mr. Becker's request, and all documents in these files were identified to Mr. Becker in the IG's response to his request. Subsequently, the IG provided to Mr. Becker printouts from the case tracking database itself, including the “Executive Brief” referred to in Document 81. The IG has confirmed that the case files and database records corresponding to the two case numbers would be the only locations of files responsive to Mr. Becker's request. Memorandum of telephone conversation between Jacqueline Becker and Linda Duvall, IG, and Steven Goering, OHA (September 6, 2000).

Based on the above description, we conclude that the IG's search was reasonably calculated to uncover the records sought by Mr. Becker. Indeed, the IG's initial search of its case tracking database would have been adequate. Barbara Schwarz, 27 DOE ¶ 80,245 at 80,874 (1999). And yet the IG went beyond this by consulting with the requester to identify the specific case files in which he was interested. The IG has also assured us that all documents contained in the case files and the tracking database have been identified to Mr. Becker, and we have no reason to believe otherwise.

In sum, we find that the IG conducted an adequate search for documents responsive to Mr. Becker's request and identified to him all documents that it located. We also find as we did in our earlier decision that the IG properly weighed the public and privacy interests at stake in deciding to withhold identifying information of private citizens under Exemption 7(C). However, we will remand this matter to the IG to issue a new determination to the requester releasing the information identifying federal employees or explaining its continued withholding of that information. In all other respects, the present Motion for Reconsideration will be denied.

It Is Therefore Ordered That:

(1) The Motion for Reconsideration filed by Martin Becker on August 2, 2000, OHA Case No. VFA- 0599, is hereby granted as specified in Paragraph (2) below, and is denied in all other respects.

(2) This matter is hereby remanded to the Office of the Inspector General to issue a new determination in accordance with the instructions set forth in the above Decision and Order.

(3) This is a final order of the Department of Energy of 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: November 2, 2000

(1) In this regard, the Appellant contends that under Exemption 7(C) only the names of government employees who are “arresting officers” should be withheld. Memorandum of telephone conversation between Martin Becker and Steven Goering, OHA (October 20, 2000). However, the federal courts have generally held the identities of law enforcement personnel exempt from disclosure pursuant to Exemption 7(C), and these holdings have not been limited to the identities of arresting officers. See, e.g., Doherty v. United States Dep't of Justice, 779 F.2d 49, 52 (2d Cir. 1985) (“Identities of FBI agents, of FBI non-agent personnel, [and] of employees of the Immigration and Naturalization Service . . . are embraced by exemption (b)(7)(C).”).

(2) Mr. Becker also reiterates an argument that he made in connection with his Appeal, stating that we should not base our finding regarding the public interest on whether the IG has found wrongdoing. Memorandum of telephone conversation between Martin Becker and Steven Goering, OHA (August 8, 2000); Facsimile transmission from Martin Becker to Bill Schwartz, OHA (July 14, 2000). We do not. Our finding in our Appeal decision as to the lack of public interest was not based upon any finding of the IG, but rather on the speculative nature of Mr. Becker's allegations.