Case No. VFA-0600, 28 DOE ¶ 80,115

September 28, 2000

DECISION AND ORDER

OF THE DEPARTMENT OF ENERGY

Appeal

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

Dates of Filing: August 3, 2000

August 16, 2000

Case Numbers: VFA-0600

VFA-0604

This Decision and Order concerns two Appeals that David E. Ridenour d/b/a R.E.V. Eng. Services (R.E.V.) filed from determinations issued to him by the Rocky Flats Field Office (RFFO) of the Department of Energy (DOE). RFFO issued these determinations in response to requests for information that R.E.V. filed under the Freedom of Information Act (FOIA), 5 U.S.C. § 552, as implemented by the DOE in 10 C.F.R. Part 1004. The Appeals, if granted, would require RFFO to release certain documents to R.E.V. Because they concern the same documents and raise the same issues, we will consider the two Appeals jointly.

The FOIA generally requires that documents held by the federal government be released to the public upon request. However, Congress has provided nine exemptions to the FOIA which set forth the types of information agencies are not required to release. Under DOE regulations, a document which is exempted from disclosure under the FOIA shall nonetheless be released to the public unless the DOE determines that disclosure is contrary to federal law or the public interest. 10 C.F.R. § 1004.1.

I. Background

On February 19, 2000, R.E.V. submitted a FOIA request to the DOE’s Albuquerque Operations Office (AOO). In this request, R.E.V. sought access to a specific report and to documents pertaining to that report. The report was prepared by David Fredrickson, the Director of AOO’s Personnel Security Division, at the request of RFFO’s Office of Chief Counsel, and concerned internal RFFO operations. In its March 16, 2000 determination, AOO stated that it had conducted a search for responsive documents, but that none could be found. AOO further indicated that because it believed that RFFO possessed documents that were responsive to R.E.V.’s request, AOO would transfer the request to RFFO for further processing. R.E.V. appealed the adequacy of AOO’s search for responsive documents, and the Office of Hearings and Appeals (OHA) found that search to be

adequate. David Ridenour, Case No. VFA-0570 (May 31, 2000). Subsequent to its initial search, and on its own initiative, AOO conducted another search. As a result of this search, Mr. Fredrickson located a copy of his final report, his cover memorandum, and the first page of the memorandum from Rocky Flats in which his assistance in this matter was requested. Believing RFFO to be the appropriate repository for these documents, he sent them to that facility’s Office of Chief Counsel. See May 5, 2000 memorandum from Mr. Fredrickson to Carolyn A. Becknell, Acting Freedom of Information Officer, AOO.

On July 14, 2000, RFFO issued two separate determinations to R.E.V. The first determination sets forth RFFO’s response to AOO’s referral of R.E.V.’s February 19 FOIA request. In this determination, RFFO withheld the report in its entirety pursuant to Exemption 5 of the FOIA. 5 U.S.C. § 552(b)(5). Specifically, RFFO states that the report was prepared in response to a Merit Systems Protection Board claim by Mr. Ridenour, and includes a discussion of the factual bases of that claim. Because the report was prepared by an individual working under the guidance of an attorney, and in contemplation of the MSPB claim, RFFO found the report to be attorney work- product, and therefore exempt from mandatory disclosure. RFFO further stated that it was unable to locate any documents relevant to “tasking, statement of work and/or contract” with respect to Mr. Fredrickson and the report. July 14 Determination Letter (RF00-016) at 2. (1)

RFFO issued the second determination letter (RF00-018) in response to a separate FOIA request filed by R.E.V. on March 26, 2000. In this request, R.E.V. sought access to “records relating to ?security investigations’ on [Mr. Ridenour], internal or external to the agency.” In its second determination, RFFO interpreted this request as being for records that were not previously provided to Mr. Ridenour in response to an earlier Privacy Act request, and stated that no additional responsive documents were found. RFFO specifically stated that the report did not concern a security investigation of Mr. Ridenour, and was therefore not responsive to this request. In addition, RFFO reiterated its finding that the report was exempt from mandatory release pursuant to Exemption 5. In its Appeals, R.E.V. contests RFFO’s application of Exemption 5 in withholding the report. (2)

II. Analysis

A. RFFO’s Application of Exemption 5

Exemption 5 protects from mandatory disclosure “inter-agency or intra-agency memorandums or letters which would not be available to a party other than an agency in litigation with the agency.” 5 U.S.C. § 552(b)(5). The United States Supreme Court has held that this exemption incorporates every civil discovery privilege which the government enjoys under statutory and case law. United States v. Weber Aircraft Corp., 465 U.S. 792, 799 (1984); FTC v. Grolier, 103 S.Ct. 2209 (1983) (Grolier). See also Peter T. Torell, 15 DOE ¶ 80,127 (1987) (Torell). One of these privileges is for attorney work-product. That privilege serves to “provide working attorneys with a ?zone of privacy’ within which to think, plan, weigh facts and evidence . . . , and prepare legal theories.” Coastal States Gas Corp. v. DOE, 617 F2d. 854, 864 (D.C. Cir. 1980). The privilege is applicable to material that was prepared by an attorney “in contemplation of litigation.” See Hickman vs. Taylor, 329 U.S. 495, 509-10 (1947). The attorney work-product privilege is also applicable to material prepared by a non- attorney under the supervision of an attorney, Durham v. United States Department of Justice, 829 F. Supp. 428, 432-33 (D.D.C. 1993), and to documents prepared in anticipation of administrative proceedings. Exxon Corp. v. Department of Energy, 585 F. Supp. 690, 700 (D.D.C. 1983).

R.E.V. asserts that the report was not prepared in contemplation of litigation, but was instead a security report, that there is insufficient evidence to establish that Mr. Fredrickson, a non-attorney, was supervised by an attorney, that there are currently no pending administrative claims or lawsuits filed by R.E.V. against the DOE, and that the DOE has waived the privilege by failing to maintain confidentiality of the report. Finally, R.E.V. argues that even if RFFO properly applied Exemption 5 in withholding the report, we should release that document on public interest grounds.

We addressed and rejected most of R.E.V.’s arguments in Charlene Pazar, 27 DOE ¶ 80,104 (1998) (Pazar). In that case, we determined that the specific report sought here was properly withheld under the attorney work-product privilege incorporated into Exemption 5 of the FOIA. Specifically, we found that the report was prepared in response to an administrative claim, i.e., a Merit Systems Protection Board complaint filed by Mr. Ridenour, that Mr. Fredrickson worked under the direct supervision of RFFO’s Office of Chief Counsel, that the report has been kept in strict confidence by RFFO, and that release of the report was not in the public interest, despite the fact that the administrative claim for which it had been prepared had been dismissed.

R.E.V.’s arguments have not convinced us that Pazar was wrongly decided. However, two of these contentions are arguably new and deserve further discussion. R.E.V. claims that because RFFO did not have control over one copy of the report for a period of three years (the copy inadvertently retained and apparently misplaced by Mr. Fredrickson from May 1997 to May 2000), confidentiality has not been maintained, and the attorney work-product privilege is no longer applicable. We do not agree. The fact that an agency document may have been misplaced does not mean that the confidentiality of that document has been breached. Indeed, the federal courts have generally found that an exemption has been waived with respect to a given document only after an actual disclosure of that document to an individual outside of the agency has occurred. See, e.g., Cooper v. Department of the Navy, 594 F.2d 484, 488 (5th Cir. 1978); Powell v. United States, 584 F. Supp. 1508, 1520-21 (N.D. Cal. 1984); Direct Response Consulting Serv. V. IRS, No.94-1156, 1995 WL 623282, at 5 (D.D.C. August 21, 1995). Here, no disclosure occurred. There is simply no support in the record for R.E.V.’s contention that “unauthorized individuals” had access to the report, R.E.V. Appeal at 3, or that the document’s confidentiality was otherwise breached.

R.E.V. also points out that the Merit Systems Protection Board proceeding for which the report was prepared has been terminated. However, the purpose of the privilege, which is to protect the integrity of the adversarial process, remains applicable. In FTC v. Grolier Inc., 462 U.S. 19 (1983) (Grolier), the U.S. Supreme Court found that attorney work-product privilege survives the termination of the proceeding for which that work-product was produced. 462 U.S. at 28. For the forgoing reasons, we conclude that RFFO properly withheld the report under Exemption 5.

B. The Public Interest

The fact that material requested falls within a statutory exemption does not necessarily preclude release of the material to the requester. The DOE regulations implementing the FOIA provide that “[t]o the extent permitted by other laws, the DOE will make records available which it is authorized to withhold under 5 U.S.C. § 552 whenever it determines that such disclosure is in the public interest.” 10 C.F.R. 1004.1. R.E.V. argues that discretionary release of the report would be in the

public interest because it would foster debate as to whether the assignment of Mr. Fredrickson to the investigation of RFFO procedures was an appropriate use of DOE resources. Appeal at 3.

We find the public interest in the amount of resources expended by the assignment of one employee to perform a task of limited duration to be minimal, at best. On the other hand, we find that release of the report would result in foreseeable harm to the interests that the attorney work-product privilege was designed to protect. See FOIA Update, U.S. Department of Justice, Office of Information and Privacy (Spring 1994); Memorandum from Janet Reno, Attorney General, to Heads of Departments and Agencies (October 4, 1993) (in order to withhold material, agency must first determine that release would foreseeably harm basic institutional interests that underlie Exemption 5). As Justice Brennan stated in Grolier, “[i]t would be of substantial benefit to an opposing party (and of corresponding detriment to an agency) if the party could obtain work product generated by the agency in connection with earlier, similar litigation against other persons . . . [H]e could gain insight

into the agency’s general strategic and tactical approach to deciding . . . on what terms [lawsuits] may be settled.” 462 U.S. 19 at 30 (Brennan, J., concurring). In view of RFFO’s Office of Chief Counsel’s belief that there is a substantial likelihood of further proceedings by Mr. Ridenour against the DOE, see memorandum of September 12, 2000 telephone conversation between Mr. Palmer and James Long, Office of Chief Counsel, RFFO, we do not believe that discretionary release of the report would be appropriate. We will therefore deny R.E.V.’s Appeal.

It Is Therefore Ordered That:

(1) The Appeal filed by R.E.V. Eng. Services on August 16, 2000 is hereby denied.

(2) 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 located, or in the District of Columbia.

George B. Breznay

Director

Office of Hearings and Appeals

Date: September 28, 2000

(1) RFFO has since informed us that it has located six responsive documents that were not identified in its July 14th determinations, including documents referred to in the May 5th Fredrickson memorandum, and that it will shortly issue another determination to R.E.V. concerning these documents. See memorandum of September 12, 2000 telephone conversation between Mary Hammack, RFFO, and Robert Palmer, OHA Staff Attorney.

(2) R.E.V. also alleges that AOO, RFFO and OHA engaged in a conspiracy to conceal the existence of responsive documents and to improperly deny it access to those documents. Because consideration of these charges is beyond our jurisdiction, we will not address R.E.V.’s conspiracy claim in this Decision, except to note that the allegations are false.