Case No. VFA-0631, 28 DOE ¶ 80,145

February 1, 2001

DECISION AND ORDER

OF THE DEPARTMENT OF ENERGY

Appeal

Name of Petitioner: Gilbert M. Arriola

Date of Filing: November 20, 2000

Case Number: VFA-0631

On November 20, 2000, Gilbert M. Arriola filed an Appeal from a determination issued to him on November 2, 2000 by the Director of Human Resources Management of the Department of Energy (HR). That determination concerned a request for information that Mr. Arriola 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, DOE would be ordered to release the materials 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 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

In a request submitted to HR on January 12, 2000, Mr. Arriola requested the following documents:

(1) A copy of the Senior Executive Service Selection Certification for the position of Deputy Assistant Secretary for International Materials Protection and Emergency Cooperation, Announcement Number: ETR 99-ES-10-040.

(2) A copy of the complete application package submitted by the employee selected for the position including the dates MA received it.

(3) Copies of all documentation and notes, regarding the selection of the selected employee, taken prior to, during and subsequent to his selection; by all employees involved, in anyway, with the processing of his application, and by any boards or at any hearings or meetings.

(4) Copies of Standard Forms 50-B, “Notification of Personnel Action,” for the selected employee, since his/her employment, transfer, or detail with the Department of Energy.

(5) Copies of all documentation having to do with the transfer, detail or assignment of the selected employee to the Department of Energy and the identification of personnel responsible for making the decision to transfer, detail or assign the selected employee to the Office of Nonproliferation and National Security.

(6) The period of time the selected employee worked at the Department of Energy prior to his/her selection.

(7) Identification of the supervisor the selected employee reported to prior to his/her selection.

(8) Information on whether the selected employee was in any way identified as a replacement for Notra Trulock, the former Director, Office of Intelligence and the identification of who, in the Department of Energy, was involved in the matter.

(9) Copies of any Department of Energy statements or news releases announcing or responding to newspaper or other public comments, including comments made by Notra Trulock, on the selected employees identification as the person to replace him as the Director of the Office of Intelligence.

(10) The identity of the selecting official(s).

See Letter from Gilbert M. Arriola to Abel Lopez, Director of Freedom of Information Act and Privacy Group (January 12, 2000).

On November 2, 2000, HR issued a determination which identified documents responsive to Mr. Arriola’s request. However, HR redacted information from these documents and withheld some of the materials pursuant to Exemption 5 and Exemption 6 of the FOIA. HR stated that the requested information is both “predecisional and deliberative” and falls clearly within the deliberative process privilege of Exemption 5. In addition, HR found that there is no public interest in the disclosure of an individual’s personal information. However, there is a viable privacy interest that would be threatened by such disclosure and thus the information is withholdable under Exemption 6. See Determination Letter at 1-2.

On November 20, 2000, Mr. Arriola filed the present Appeal with the Office of Hearings and Appeals (OHA). In his Appeal, Mr. Arriola challenges HR’s determination with respect to Items 3, 4, 5, and 9. He disagrees with the application of Exemptions 5 and 6 to Item 3 of his request and requests that OHA direct HR to release all of the requested information.

II. Analysis

A. Item 3 of Appellant’s Request

In Item 3 of his request, Mr. Arriola requested “copies of all documentation and notes, regarding the selection of the selected employee, taken prior to, during and subsequent to his selection; by all employees involved, . . . , with the processing of his application, and by any boards or at any hearings or meetings.” In its determination, HR released several responsive documents including the Executive Resources Board Subcommittee Case and Evaluation Summary Sheet, copies of E-mails and other memoranda regarding the selection process. However, it withheld the names of the panel members of the Executive Resources Board, responsible for rating the selected employee. Mr. Arriola asserts that Americans of Hispanic origin are severely underrepresented in DOE at the Senior Executive Service level. According to Mr. Arriola, disclosure of this information may reveal a discriminatory pattern and practice in the selection practice that has a direct impact on the underrepresentation of Hispanics. He therefore asserts that there is a public interest in knowing DOE’s selection practices. After a thorough discussion with HR, we find that the names of the panel members were properly withheld under Exemptions 5. However, we also find that HR’s determination letter with respect to Exemption 6 was insufficiently informative.

1. Exemption 5

Exemption 5 of the FOIA exempts from mandatory disclosure documents which 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). The Supreme Court has held that this provision exempts "those documents, and only those documents, normally privileged in the civil discovery context." NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 149 (1975) (Sears). The courts have identified three traditional privileges that fall under this definition of exclusion: the attorney-client privilege, the attorney work-product privilege, and the executive "deliberative process" or "predecisional" privilege. Coastal States Gas Corporation v. Department of Energy, 617 F.2d 854, 862 (D.C. Cir. 1980) (Coastal States). In withholding the requested information, HR relied upon the “deliberative process” privilege of Exemption 5.

The "deliberative process" privilege of Exemption 5 permits the government to withhold documents that reflect advisory opinions, recommendations, and deliberations comprising part of the process by which government decisions and policies are formulated. Sears, 421 U.S. at 150. It is intended to promote frank and independent discussion among those responsible for making governmental decisions. EPA v. Mink, 410 U.S. 73, 87 (1973) (quoting Kaiser Aluminum & Chem. Corp. v. United States, 157 F. Supp. 939 (Cl. Ct. 1958)) (Mink). The ultimate purpose of the exemption is to protect the quality of agency decisions. Sears, 421 U.S. at 151. In order to be shielded by Exemption 5, a document must be both predecisional, i.e. generated before the adoption of agency policy, and deliberative, i.e. reflecting the give-and-take of the consultative process. Coastal States, 617 F.2d at 866. The exemption thus covers documents that reflect, among other things, the personal opinion of the reviewers rather than the final policy of the agency. Id.

The material withheld by HR is a list of the names of panel members who sat on the Executive Resources Board. This Board is responsible for rendering an opinion of the best qualified candidates. These opinions are then forwarded to the selecting official, who then makes the final determination concerning the appointment. The selecting official, however, is not bound by these opinions. Thus, the Board’s examination of the candidates is predecisional and part of the deliberative process, i.e., it is advice to the selecting official on which candidate should be appointed to the position. We uphold HR’s decision to withhold the names of the panel members. Disclosure of the panel members’ names might discourage future participation in application evaluations. It is precisely this kind of information that the deliberative process privilege of Exemption 5 is designed to protect. See Robert E. Caddell, 20 DOE ¶ 80,164 at 80,683.

2. Exemption 6

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).

In order to determine whether information may be withheld under Exemption 6, 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 Exemption 6. Ripskis v. Department of HUD, 746 F.2d 1, 3 (D.C. Cir. 1984) (Ripskis). 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. Reporters Committee, 489 U.S. at 762-770. See generally Ripskis, 746 F.2d at 3.

After reviewing HR’s determination letter with respect to Exemption 6, we have concluded that HR provided a generic explanation of how Exemption 6 applies to the responsive information. We find this explanation to be insufficiently informative and short of what is legally required. It is well established that a FOIA determination must contain a reasonably 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. HR did not adequately explain the reasons why the names of the panel members are exempt from disclosure under the provisions of FOIA Exemption 6. Although we found that HR properly withheld the names of the panel members under Exemption 5, it would follow that there is no need to analyze Exemption 6 any further. However, HR applied Exemption 6 to withhold documents responsive to Item 4 of Mr. Arriola’s request. Therefore, we shall remand this matter to HR to either release to Mr. Arriola all of the information responsive to his request (except for the names of the panel members) or to issue a new determination adequately supporting the withholding of the responsive information in the documents pursuant to Exemption 6. If a new determination is issued, HR should include a statement of the reason for denial, a specific explanation of how Exemption 6 applies to the documents withheld and a statement why discretionary release is not appropriate. See 10 C.F.R. § 1004.7(b)(1).

B. Item 4 of Appellant’s Request

In Item 4 of his request, Mr. Arriola requested “copies of Standard Forms 50-B, “Notification of Personnel Action”, for the selected employee, since his/her employment, transfer, or detail with the Department of Energy.” In response to this request, DOE provided Mr. Arriola with the SF-50 for the SES Career Appointment of Selectee and withheld certain personal information pursuant to Exemption 6. Mr. Arriola asserts that he was not provided with all of the Standard Forms 50-B for the selected employee.

To determine whether an agency’s search was adequate, we must examine its actions under a “standard of reasonableness.” McGehee v. CIA, 697 F.2d 1095, 1100-01, modified in part on rehearing, 711 F.2d 1076 (D.C. Cir. 1983). This standard “does not require absolute exhaustion of the files; instead it requires a search reasonably calculated to uncover the sought materials.” Miller v. Department of State, 779 F.2d 1378, 1384-85 (8th Cir. 1985). Furthermore, the determination of whether a search was reasonable is “dependent upon the circumstances of the case.” Founding Church of Scientology v. National Security Agency, 610 F.2d 824, 834 (D.C. Cir. 1979).

In reviewing Item 4 of Mr. Arriola’s request, we contacted officials at HR to ascertain the extent of the search that had been performed and to determine whether any other documents responsive to Item 4 of Mr. Arriola’s request might exist. HR informed us that it instituted a search of its files and located one document responsive to Mr. Arriola’s request. It further informed us that it found no other documents responsive to Mr. Arriola’s request. See January 16, 2001 Record of Telephone Conversation between Marilyn Greene, HR and Kimberly Jenkins-Chapman, OHA. Given the facts presented to us and the nature of the HR records, we find that HR conducted an adequate search which was reasonably calculated to discover documents responsive to Mr. Arriola’s request.

C. Item 5 of Appellant’s Request

In Item 5 of Mr. Arriola’s request, he requested “copies of all documentation having to do with the transfer, detail, or assignment of the selected employee to the Department of Energy and the identification of personnel responsible for making the decision to transfer, detail, or assign the selected employee to the Office of Nonproliferation and National Security.” HR provided Mr. Arriola with various responsive documents and information. In its determination letter, HR stated that the final copy of the “Reimbursable Interagency Agreement Between the U.S. Department of Energy and the Central Intelligence Agency” will be provided to Mr. Arriola when it becomes available. Mr. Arriola asserts that this response is “unacceptable” and argues that the “DOE is required to prepare reimbursable agreements for detailees at the time they are assigned to the DOE.” See Appeal Letter at 2. After contacting officials at HR, we were informed that it is not in possession of the Interagency Agreement Mr. Arriola seeks. HR further informed us that the Central Intelligence Agency never sent the agreement back to the DOE. It is now in the process of attempting to locate the agreement. Based on our discussions, we are satisfied that HR is acting in good faith, that the document is not currently in DOE’s possession and that HR will provide Mr. Arriola with the interagency agreement when it becomes available.

D. Item 9 of Appellant’s Request

Finally, Mr. Arriola appeals HR’s response to Item 9 of his initial request in which he asks for “copies of any Department of Energy statements or news releases announcing or responding to newspaper or other public comments, including comments made by Notra Trulock, on the selected employee’s identification as the person to replace him as the Director of the Office of Intelligence.” In its determination letter, HR stated that no responsive documents or information was available in the Office of Human Resources, and it forwarded Mr. Arriola’s request to the Office of Public Affairs for their direct response. Mr. Arriola asserts that he has yet to be contacted by the Office of Public Affairs. We contacted HR to ascertain the status of this portion of Mr. Arriola’s request. That office informed us that they would check on the status of this request with the Office of Public Affairs and contact Mr. Arriola as soon as possible.

III. Conclusion

As discussed above, we have concluded that HR properly applied Exemption 5 to the names of the panel members. However, we found that HR’s determination letter with respect to Exemption 6 was insufficiently informative. Therefore, we shall remand this matter to HR to either release to Mr. Arriola all of the information responsive to his request (except for the names of the panel members) or to issue a new determination adequately supporting the withholding of the documents pursuant to Exemption 6. We also find that HR acted properly with respect to the remainder of the request.

It Is Therefore Ordered That:

(1) The Appeal filed by Gilbert M. Arriola on November 20, 2000, Case Number VFA-0631, is hereby granted as specified in Paragraph (2) below, and is denied in all other respects.

(2) This matter is hereby remanded to the Deparment of Energy, Office of Human Resource Management, which should issue a new determination with respect to the application of

Exemption 6 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: February 1, 2001