R.E.V. ENG Services, Case No. VFA-0626, December 4, 2000

Case No. VFA-0626, 28 DOE ¶ 80,131

December 4, 2000

DECISION AND ORDER

OF THE DEPARTMENT OF ENERGY

Appeal

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

Date of Filing: November 3, 2000

Case Number: VFA-0626

On November 3, 2000, R.E.V. ENG Services filed an Appeal from a final determination that the Rocky Flats Field Office (Rocky Flats) of the Department of Energy (DOE) issued on October 4, 2000. In its determination, Rocky Flats denied R.E.V. ENG Services’ request for information submitted 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 Rocky Flats to release the information it withheld.

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 that is required to be withheld or may be withheld at the discretion of the agency. 5 U.S.C. § 552(b). Those nine categories are repeated in the DOE regulations implementing the FOIA. 10 C.F.R. § 1004.10(b). The DOE regulations further provide that documents 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

In a letter dated August 1, 2000, R.E.V. ENG Services submitted a FOIA request to Rocky Flats for “information pertaining to the Rocky Flats Field Office tasking” for the “Final Report that was prepared for the [Rocky Flats] Office of Chief Counsel by David Fredrickson of the Albuquerque Field Office.” Request Letter dated August 1, 2000, from David Ridenour, P.E., R.E.V. ENG Services, to Mary Hammack, FOIA/Privacy Act Officer, Rocky Flats. In an additional letter dated August 1, 2000, R.E.V. ENG Services submitted a FOIA request to Rocky Flats for documents delivered to Rocky Flats and referenced in a May 5, 2000 Memorandum from David M. Fredrickson, Director, Personnel Security Division, Albuquerque, to Carolyn A. Becknell, Acting FOIA/Privacy Act Officer, Albuquerque.(1) Second Request

Letter dated August 1, 2000, from David Ridenour, P.E., R.E.V. ENG Services, to Mary Hammack, FOIA/Privacy Act Officer, Rocky Flats.

On October 4, 2000, Rocky Flats denied both the August 1, 2000 requests, withholding six responsive documents,(2) claiming they were exempt from disclosure under Exemption 5. Rocky Flats claimed that the documents were attorney work-product. Determination Letter dated October 4, 2000, from Barbara A. Mazurowski, Manager, FOI Authorizing/Denying Official, Rocky Flats, to David E. Ridenour, P. E., R.E.V. ENG Services (Determination Letter).

In its Appeal, R.E.V. ENG Services disputes the withholding of information under Exemption 5. First, R.E.V. ENG Services asserts that claiming that the OF 41 Routing and Transmittal Form is attorney work-product strains the limits of credulity. Appeal Letter dated October 31, 2000, from David E. Ridenour, P.E., R.E.V. ENG Services, to George B. Breznay, Director, Office of Hearings and Appeals (OHA), DOE. The Appellant believes that Rocky Flats’ justification in support of withholding the remainder of the documents rests on the assertion that he will be suing the government. R.E.V. ENG Services claims that no lawsuit is contemplated. Id.

II. ANALYSIS

Exemption 5 protects “inter-agency or intra-agency memorandums or letters which would not be available by law to a party . . . in litigation with the agency.” 5 U.S.C. § 552(b)(5). The language of Exemption 5 has been construed to “exempt those documents, and only those documents, normally privileged in a civil discovery context.” NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 149 (1975). The attorney work-product 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 Corporation v. Department of Energy, 617 F.2d 854, 864 (D.C. Cir. 1980). It protects documents prepared by an attorney in contemplation of litigation. Hickman v. Taylor, 329 U.S. 495, 509-10 (1947); Fed. R. Civ. P. 26(b)(3). This privilege is also applicable to material prepared by a non-attorney who was supervised by an attorney. Nishnic v. Department of Justice, 671 F. Supp. 771, 772-73 (D.D.C. 1987). Finally, because factual work-product is not “routinely” or “normally” discoverable, it can also be protected under Exemption 5. See United States v. Weber Aircraft Corp., 465 U.S. 792, 799 (1984); FTC v. Grolier, 462 U.S. 19, 26 (1983) (Grolier). In order to claim the attorney work-product privilege, a lawsuit need not have already been filed. The privilege “extends to documents prepared in anticipation of foreseeable litigation, even if no specific claim is contemplated.” Schiller v. NLRB, 964 F.2d 1205, 1208 (D.C. Cir. 1992). Further, termination of litigation does not cancel the protection for attorney work-product material. Grolier, 462 U.S. at 28.

We have reviewed copies of all six documents withheld by Rocky Flats. As an initial matter, we agree with the Appellant that the “Routing and Transmittal Slip” does not contain any information that can be considered attorney work-product.(3) Other than the information listed in its description in the Determination Letter, it contains Mr. Fredrickson’s room and telephone numbers. Further, it contains two sentences indicating what it is transmitting. None of this information can be construed to be attorney work-product. We believe it should be released in its entirety.

The other five documents are a letter and four memoranda. The second document we consider is a copy of a letter dated May 13, 1997, from Mell Roy, Chief Counsel, Rocky Flats, to Bruce Twining, Manager, Albuquerque. We believe that this document deals essentially with a personnel matter; however, it does contain some information that may be considered attorney work-product. The last four documents, all memoranda, contain similar, often identical, information. The first memorandum is from James D. Long, Jr., Attorney-Advisor, Rocky Flats, to Mr. Fredrickson, outlining what questions Mr. Fredrickson’s inquiry should answer. The last three documents are cover memoranda from Mr. Fredrickson to Ms Roy, transmitting the report. These memoranda are essentially the same document with different dates. These three memoranda essentially replicate Mr. Long’s memoranda.

A determination must adequately justify the withholding of a document by explaining briefly how the claimed exemption applies to the document. Paul W. Fox, 25 DOE ¶ 80,150 at 80,622 (1995); Arnold & Porter, 12 DOE ¶ 80,108 at 80,527 (1984). In the present case, the Determination Letter provides only a statement that the documents are attorney work-product. This justification is the type of conclusory explanation that we have found to be invalid previously. Arnold & Porter, 12 DOE at 80,528. Arnold & Porter required that an explanation be set forth showing how the exemption applied to the specific document. That explanation must show that serious thought was given to the reasons justifying the withholding of each document. Id. at 80,529. In this case, with the exception of providing a blanket statement that the documents are attorney work-product, Rocky Flats included no other justification. More importantly, Rocky Flats failed to specifically provide any explanation of how the attorney work-product privilege applies to these documents. Although we believe that portions of these documents may contain attorney work-product, we believe Rocky Flats is in the best position to make that initial assessment. We will remand the matter to Rocky Flats for a better description of the documents and an explanation of how the privilege applies to them.

III. THE PUBLIC INTEREST

In a typical case, 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.

Despite the fact that Rocky Flats need not segregate the factual material in a document that is protected by the attorney work-product privilege, we believe that Rocky Flats should release the factual information in these documents in furtherance of the public interest. The Attorney General has indicated that whether or not there is a legally correct application of an exemption, it is the policy of the Department of Justice to defend the assertion of a FOIA exemption only in those cases where the agency articulates a reasonably foreseeable harm to an interest protected by that exemption. Memorandum from the Attorney General to Heads of Departments and Agencies, Subject: The Freedom of Information Act (October 4, 1993) at 1, 2 (Reno Memorandum). The factual information can be released without foreseeable harm to the agency, even though it would not “normally” or “routinely” be discoverable in litigation. Portions of the documents are factual information that could easily be segregated and released to R.E.V. ENG Services without adversely harming the interest protected by the attorney work-product privilege. Therefore, we will remand the six documents to Rocky Flats with a direction to segregate and release the factual information or to provide justification sufficient to articulate a reasonably foreseeable harm in releasing any portion of the documents.

IV. CONCLUSION

We are remanding the Routing and Transmittal Slip to Rocky Flats for its release. We are also remanding the letter and four memoranda to Rocky Flats so that it may provide an adequate justification of how the attorney work-product privilege applies to these documents. Rocky Flats should review these six documents, and segregate and release all factual portions of them, or issue a new determination that justifies their withholding.

It Is Therefore Ordered That:

(1) The Appeal filed by R.E.V. ENG Services, on November 3, 2000, Case No. VFA-0626, is hereby granted as set forth in Paragraph (2) below.

(2) This matter is hereby remanded to the Rocky Flats Field Office of the Department of Energy, which shall issue a new determination 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 provision of 5 U.S.C. § 552(a)(4)(B). Judicial review may be sought either 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: December 4, 2000

(1)The Fredrickson Memorandum was written in response to an earlier FOIA request that R.E.V. ENG Services filed with Albuquerque. Albuquerque responded to that request by stating that it had no responsive documents. However, after the determination, Mr. Fredrickson found a copy of the report and sent it to Rocky Flats. He then sent the May 5, 2000 Memorandum to Ms Becknell.

(2)The determination letter refers to eight documents. Included within those eight documents are the original report, which has been the subject of two previous FOIA Appeals. R.E.V. ENG Services, 28 DOE ¶ 80,115 (2000); Charlene Pazar, 27 DOE ¶ 80,104 (1998). In these cases, we found that the report was attorney work-product. Therefore, we will not revisit the matter. Another document mentioned in the determination letter is a “note for retained copies.” This was also the subject of a previous FOIA Appeal. R.E.V. ENG Services, 28 DOE ¶ 80,116 (2000). In that case, we remanded the matter to Rocky Flats for a new determination justifying the withholding of this document. Because that remand is still pending, we will not review that document again.

(3)We note that in the Determination Letter, this document is identified as containing the date “July 7, 1997.” The date on the copy we received was “July 2, 1997.” We believe this to be a typographical error in the Determination Letter.