Case No. VFA-0617, 28 DOE ¶ 80,122

November 1, 2000

DECISION AND ORDER

OF THE DEPARTMENT OF ENERGY

Appeal

Name of Petitioner: Anter Corporation

Date of Filing: October 3, 2000

Case Number: VFA-0617

This Decision addresses a Freedom of Information Act (FOIA) appeal filed on October 3, 2000, by Anter Corporation (Anter), and is governed by the FOIA, 5 U.S.C. § 552, and the Department of Energy (DOE) implementing regulations, 10 C.F.R. Part 1004. For the reasons set forth below, Anter’s appeal will be denied in part and remanded.

I. Background

With nine exemptions, the FOIA requires federal agencies to release documents to the public upon request. 5 U.S.C. § 552(a),(b); 10 C.F.R. § 1004.3,.10(b). Anter filed a FOIA request with the DOE Idaho Operations Office, seeking information relating to the decisional process in selecting an award for DOE Request for Proposal No. R00-18376, for which Anter had placed an unsuccessful bid. At issue in this appeal is a responsive document, dated June 2, 2000, entitled “Technical Evaluation of Proposals for The Laser Flash Thermal Diffusivity Instrument” (the responsive document). The first section of the document provides highlights of comments from named individuals who had experience with Anter’s laser flash thermal diffusivity instrument (Anter’s diffusivity instrument), and the second section summarizes and compares those comments. Citing Exemption 5 of the FOIA, the Idaho Operations Office FOIA Officer released the responsive document, but redacted the first section. In her determination, the FOIA Officer described the redacted material as “predecisional deliberative data, the release of which would likely ?stifle honest and frank communication within the agency.’” In its appeal, Anter seeks

release of the redacted information.

II. Analysis

Exemption 5 of the FOIA shields from 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). Exemption 5 incorporates the executive “deliberative process” privilege, which 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. NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 150 (1975); Coastal States Gas Corp. v. United States Dep’t of Energy, 617 F.2d 854, 862 (D.C. Cir. 1980) (Coastal States). The purpose of the deliberative process privilege is to promote high-quality agency decisions by fostering frank and independent discussion among individuals involved in the decision-making process. Coastal States, 617 F.2d at 866.

Information within the purview of the deliberative process privilege must be both predecisional and deliberative. Information is predecisional if it is prepared or gathered in order to assist an agency decisionmaker in arriving at a decision. Renegotiation Board v. Grumman Aircraft Eng. Corp., 421 U.S. 168, 184 (1975). Predecisional information is also deliberative if it reflects the give-and-take of the consultative process, Coastal States, 617 F.2d at 866, so that disclosure would reveal the mental processes of the decision-maker, National Wildlife Federation v. United States Forest Service, 861 F.2d 1114, 1119 (9th Cir. 1988).

Information protected by the deliberative process privilege may include “recommendations, draft documents, proposals, suggestions, and other subjective documents which reflect the personal opinions of the writer rather than the policy of the agency,” Coastal States, 617 F.2d at 854, but does not include factual information, unless the factual material is “inextricably intertwined” with exempt material, Soucie v. David, 448 F.2d 1067, 1077 (D.C. Cir. 1971). In some circumstances, “disclosure of even purely factual material may so expose the deliberative process within an agency that it must be deemed exempted under [Exemption 5].” Mead Data Cent., Inc. v. United States Dep’t of Air Force, 566 F.2d 242, 256 (D.C. Cir. 1977) (Mead Data).

That a document is reportorial in nature is irrelevant to whether information within it may be withheld. “It would exalt form over substance to exempt documents in which staff recommend certain action or offer their opinions on given issues but require disclosure of documents which only ?report’ what those recommendations and opinions are.” Mead Data, 566 F.2d at 257 (documented summary of discussions among agency staff properly withheld, although document did not include affirmative recommendations or opinions).

Analysis of the responsive document in its entirety, with respect to the foregoing principles, reveals that the redacted information includes material that falls within the deliberative process privilege of Exemption 5, as well as material that is factual in nature and thus outside the privilege. The information shielded by the deliberative process privilege includes the opinions and subjective statements of the individuals whom the DOE consulted in evaluating Anter’s diffusivity instrument. These statements are predecisional, because they were gathered as part of the process leading to the DOE’s final award determination. The statements are also deliberative, because they address potential problems with, and available alternatives to, Anter’s diffusivity instrument. See Coastal States, 617 F.2d at 867 (noting document is deliberative in nature if it weighs pros and cons of agency adoption of one viewpoint or another). See also Chemical Weapons Working Group, Inc., 26 DOE ¶ 80,170 (March 27, 1997) (finding technical evaluation of submitter’s proposal within deliberative process privilege).

Because the statements themselves are protected under Exemption 5, the fact that the responsive document merely reports the statements, without affirmatively setting forth a recommendation, is immaterial. See Mead Data, 566 F.2d at 257 (finding reportorial document within Exemption 5). Disclosure of the statements would frustrate the purpose of Exemption 5, as individuals involved in evaluating bid proposals may resolve to “temper their candor with a concern for appearances to the detriment of the decision-making process.” Coastal States, 617 F.2d at 866 (quoting and citing United States v. Nixon, 418 U.S. 683, 705 (1974)).

On the other hand, certain redacted statements appear purely factual in nature and, absent sufficient explanation supporting application of the deliberative process privilege, must be released. Because the FOIA Officer’s determination does not make clear how the factual statements are “inextricably intertwined” with the exempt material discussed above, the FOIA Officer must reexamine the responsive document and either release the factual information, or provide a detailed explanation supporting application of Exemption 5.(1)

It Is Therefore Ordered That:

(1) The Appeal filed by Anter Corporation on October 3, 2000, Case No. VFA-0617, is hereby granted as set forth in paragraph (2) below, and denied in all other respects.

(2) This matter is hereby remanded to the Idaho Operations Office for further action in accordance with the directions set forth in this Decision.

(3) This is a final Order of the Department of Energy from 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 where 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 1, 2000

(1)In addition, the names of the individuals listed in the responsive document appear to be outside of the scope of Exemption 5, but may fall within the purview of another FOIA exemption.