Case No. VFA-0622, 28 DOE ¶ 80,125

November 15, 2000

DECISION AND ORDER

OF THE DEPARTMENT OF ENERGY

Appeal

Name of Petitioner: Shapiro Fussell Wedge Smotherman

Martin & Price, LLP

Date of Filing: October 17, 2000

Case Number: VFA-0622

On October 17, 2000, Shapiro Fussell Wedge Smotherman Martin & Price (Shapiro) filed an Appeal from two determinations issued to the firm on September 11, 2000, and September 19, 2000, by the Golden Field Office (Golden) of the Department of Energy (DOE). Those determinations concerned a request for information that Shapiro submitted pursuant to the Freedom of Information Act (FOIA), 5 U.S.C. § 552, as implemented by the DOE in 10 C.F.R. Part 1004. If the present Appeal were granted, Golden would be ordered to release the requested information or to issue new determinations.

The FOIA requires that documents held by federal agencies generally be released to the public upon request. The FOIA, however, lists nine exemptions that set forth the types of information which may be withheld at the discretion of an agency. 5 U.S.C. § 552(b); 10 C.F.R. § 1004.10(b). The DOE regulations further provide that a document exempt from mandatory disclosure under the FOIA shall nonetheless be released to the public whenever the DOE determines that disclosure is in the public interest. 10 C.F.R. § 1004.1.

I. Background

Shapiro filed a FOIA request seeking “all documents relating, referring or pertaining to the Vermont Biomass Gasifier located in Burlington, Vermont.” In both its September 11 and September 19, 2000 determination letters, Golden identified a number of documents responsive to Shapiro’s request. However, Golden withheld portions of this information pursuant to Exemptions 4 and 5 of the FOIA. See September 11, 2000 and September 19, 2000 Determination Letters.

On October 17, 2000, Shapiro filed the present Appeal with the Office of Hearings and Appeals (OHA). In its Appeal, Shapiro challenges certain portions of Golden’s determinations related to information Golden withheld under Exemption 4. Specifically, Shapiro asserts that it is uncertain, based on Golden’s determination letters, how the withheld information would fall within Exemption 4. Shapiro asks that the OHA direct Golden to release the withheld information.

II. Analysis

The FOIA requires that documents held by federal agencies generally be released to the public upon request. Following an appropriate request, agencies are required to search their records for responsive documents. After conducting a search for responsive documents under the FOIA, the agency must provide the requester with a written determination notifying the requester of the results of that search, and if applicable, of the agency’s intentions to withhold any of the responsive information under one or more of the nine statutory exemptions to the FOIA. 5 U.S.C. § 552(a)(6)(A)(i). The statute further requires that the agency inform the requester of its right “to appeal to the head of the agency any adverse determination.” Id.

The written determination letter serves to inform the requester of the results of the agency’s search for responsive documents and of any withholdings that the agency intends to make. In doing so, the determination letter allows the requester to decide whether the agency’s response to its request was adequate and proper and provides this office with a record upon which to base its consideration of an administrative appeal.

It therefore follows that the agency has an obligation to ensure that its determination letters (1) adequately describe the results of the searches; (2) clearly indicate which information was withheld, and (3) specify any exemption under which information was withheld. Burlin McKinney, 25 DOE ¶ 80,205 at 80,797 (1996). It is well established that a FOIA determination must contain a reasonbly specific justification for withholding material pursuant to a FOIA request. See Deborah L. Abrahamson, 23 DOE ¶ 80,147 (1993). A specific justification is necessary to allow this Office to perform an effective review of the initial agency determination and to permit the requesting party to prepare a reasoned appeal. Without an adequately informative determination letter, the requester and the review authority must speculate about the adequacy and appropriateness of the agency’s determinations. Id.

In the present case, Golden withheld responsive information under Exemption 4 of the FOIA. In its determination letters, Golden provided Shapiro with generic explanations regarding how Exemption 4 applies to the responsive information. Instead of providing specific justification for applying Exemption 4 to the material withheld in this case, Golden has merely restated the language of Exemption 4, without adequately explaining the reasons why Golden concluded that the responsive information is exempt from disclosure under the provisions of the FOIA. We find these explanations to be insufficiently informative and short of what is legally required. Furthermore, we note that there does not appear to have been any attempt to segregate and release any non-exempt information from exempt information in any of the withheld information.

Accordingly, we shall remand this matter to Golden either to release to Shapiro all of the information responsive to its request or to issue new determinations adequately supporting the withholding of the information. If new determinations are issued, Golden should include a statement of the reason for denial, a specific explanation of how the exemption applies to the information withheld and a statement why discretionary release is not appropriate. See 10 C.F.R. § 1004.7(b)(1). Golden should further review each document for the possible segregation of non-exempt material. See 10 C.F.R. § 1004.7(b)(3).

It Is Therefore Ordered That:

(1) The Appeal filed by Shapiro Fussell Wedge Smotherman Martin & Price, LLP, OHA Case No. VFA-0622, on October 17, 2000, is hereby granted in part as set forth below in Paragraph (2) and denied in all other respects.

(2) This matter is hereby remanded to the Golden Field Office of the Department of Energy, which shall either release the responsive information withheld in its September 11 and September 19, 2000 determinations or issue new determinations in accordance with the instructions set forth above.

(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 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 15, 2000