Case No. VFA-0603, 28 DOE ¶ 80,112

September 14, 2000

DECISION AND ORDER

OF THE DEPARTMENT OF ENERGY

Appeal

Name of Petitioner: Martin Becker

Date of Filing: August 10, 2000

Case Number: VFA-0603

On August 10, 2000, Martin Becker (Becker) filed an Appeal from a determination that the Office of the Inspector General (IG) of the Department of Energy (DOE) issued to him. In that determination, the IG released copies of some documents in their entirety, released some with redactions, and withheld one in its entirety. 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 DOE in 10 C.F.R. Part 1004. This Appeal, if granted, would require the DOE to release the withheld information.

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 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 1999, Becker submitted a FOIA request to DOE. The IG issued a response to the request, and Becker appealed the response on June 27, 2000. On July 26, 2000, OHA granted the appeal in part and remanded the request to the IG for further action. See Martin Becker, OHA Case No. VFA-0588 (July 26, 2000). As a result, the IG released additional documents, but continued to withhold some exempt information. One of the documents released was Document 207, which contained some material that was withheld under FOIA Exemptions 6 and 7(C). On August 10, 2000, Becker appealed the redactions in Document 207. Letter from Becker to OHA (August 10, 2000).

II. Analysis

A. Exemptions 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). 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) (Abramson). 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) (Ripkis). 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) (Reporters Committee); 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). Since, as discussed below, 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.

1. Privacy Interest

In its determination, the IG stated that the withheld portions of Document 207 contained names and information that would tend to disclose the identity of certain individuals involved in the IG investigation of Becker’s allegations. According to the IG, these individuals are “entitled to privacy protections so that they will be free from harassment, intimidation and other personal intrusions.” Determination Letter at 2. The IG further determined that the public interest in the identity of individuals whose names appear in investigative files does not outweigh the individuals’ privacy interests. The IG segregated all releasable information from the withheld material. Id.

This office reviewed redacted and unredacted copies of Document 207. The IG withheld the names of three federal employees and one private citizen. All of the individuals were involved in some way with the IG’s investigation.

Because of the possibility of harassment, intimidation, or other personal intrusions, the courts have consistently recognized significant privacy interests in the identities of third parties mentioned or interviewed in the course of an investigation. See Neely v. FBI, 208 F.3d 461, 464 (4th. Cir. 2000) (withholding names of third parties mentioned or interviewed in course of investigation); Department of State v. Ray, 502 U.S. 154, 176 (1991) (“[t]he invasion of privacy becomes significant when personal information is linked to particular interviewees”); Safecard Services, Inc., v. S.E.C., 926 F.2d 1197 (D.C. Cir. 1991) (Safecard). See also Frank Isbill, 27 DOE ¶ 80,215 (1999); Blumberg, Seng, Ikeda & Albers, 25 DOE ¶ 80,124 at 80,563 (1995); James Schwab, 21 DOE ¶ 80,117 at 80,556 (1991). It is not necessary that harassment rise to the level of endangering physical safety before the protections of Exemption 7(C) can be invoked. Miller v. Bell, 661 F.2d 623 (7th Cir. 1981). Therefore, we find that the private citizen whose identity is being withheld in this case has a significant privacy interest in maintaining his or her confidentiality.

However, we find that, as a general matter, there simply is no privacy interest in material stating or describing a federal employee’s official actions or duties “unless the work somehow reveals something personal or private about the individual . . . or there is some other special circumstance (for example, a reasonable, articulable belief that the person could be subject to harassment. . .).” Mary Feild Jarvis, 26 DOE ¶ 80,190 at 80,787 (1997) (quoting The Cincinnati Enquirer, 25 DOE ¶ 80,206 (1996) (Enquirer). See also James E. Minter, 27 DOE ¶ 80,140 at 80,595 (1998); William H. Payne, 25 DOE ¶ 80,190 (1996). We did not discern, nor did the IG offer, such a special circumstance. William Hyde, 18 DOE ¶ 80,102 at 80,509 (1988) (upholding the non-disclosure of document and identity of its author when the DOE field office described the requester’s harassment of the author, a federal employee). As we have stated in the past, absent unusual circumstances usually directly related to the nature of the job, individuals do not have a privacy interest in the fact that the federal government employs them. Enquirer, 25 DOE at 70,769. 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.

2. Public Interest in Disclosure

Having established the existence of a privacy interest as regards the identity of the private citizen, the next step is to determine whether there is a public interest in disclosure. 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)). The public interest is insubstantial in this type of case unless the requester puts forward compelling evidence that the agency denying the request is engaged in illegal conduct. Safecard, 926 F.2d at 1205-06. In his Appeal, Becker has not offered any compelling evidence of illegal conduct on the part of the agency. Therefore, we find that there is little or no public interest in the disclosure of the identity of the private citizen.

3. The Balancing Test

In determining whether the disclosure of law enforcement records could reasonably be expected to constitute an unwarranted invasion of personal privacy, 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, 926 F.2d 1197 (D.C. Cir. 1991).

We have concluded above that there is a cognizable privacy interest at stake in this case. Moreover, we found that Becker has not provided sufficient evidence to justify finding a substantial public interest in the disclosure of the withheld information. Therefore, we find that the public interest in disclosure of the identity of the private citizen is outweighed by the real and identifiable privacy interests of that individual.

C. Segregability

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). Our review of Document 207( both redacted and redacted) found that, with the exception of the names of the federal employees, the IG did release all reasonably segregable, factual, non-exempt material (e.g., document titles, factual narrative).

It Is Therefore Ordered That:

(1) The Appeal filed by Martin Becker on August 10, 2000, OHA Case No. VFA-0603, 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: September 14, 2000