Case No. VFA-0634, 28 DOE ¶ 80,142

January 29, 2001

DECISION AND ORDER

OF THE DEPARTMENT OF ENERGY

Appeal

Name of Petitioner:Amigos Bravos

Date of Filing:December 6, 2000

Case Number: VFA-0634

On December 6, 2000, Amigos Bravos filed an Appeal from a determination the Freedom of Information Officer and the Freedom of Information Denying Official of the Albuquerque Operations Office (FOIA Officials) of the Department of Energy (DOE) issued to it on October 31, 2000. In that determination, the FOIA Officials denied a request for information that Amigos Bravos 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. The FOIA generally requires that a federal agency release documents to the public upon request. The FOIA, however, lists nine exemptions that set forth the types of information that a federal agency either may or must withhold. 5 U.S.C. § 552(b); 10 C.F.R. § 1004.10(b).

In Amigos Bravos’ request for information, the firm sought copies of documents regarding the participation of the DOE and/or Los Alamos National Laboratory (LANL) in the 1998 Triennial Review of the New Mexico Water Quality Standards. In the FOIA Officials’ determination letter, they responded to the firm’s request for numerous documents by releasing some documents, redacting others, and informing Amigos Bravos that they could not locate others. In this Appeal, Amigos Bravos asks us to order the release of documents the FOIA Officials determined were not agency records, order the release of information the FOIA Officials withheld pursuant to FOIA Exemption 6, and order a further search for other documents. In accordance with the Amigos Bravos Appeal, we have reviewed all of these requests.

Analysis

1. Adequacy of the Search

We have stated on numerous occasions that a FOIA request deserves a thorough and conscientious search for responsive documents, and we have not hesitated to remand a case where it is evident that the search conducted was in fact inadequate. See, e.g., Butler, Vines and Babb, P.L.L.C., 25 DOE ¶ 80,152 (1995). In cases such as these, "[t]he issue is not whether any further documents might conceivably exist but rather whether the government's search for responsive documents was adequate." Perry v. Block, 684 F.2d 121, 128 (D.C. Cir. 1982) (emphasis in original).

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 (D.C. Cir. 1983), 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).

We have investigated the DOE’s search made in response to the Amigos Bravos request for “all documents regarding LANL employees who participated in the 1998 Triennial Review.” In their determination letter, the FOIA Officials stated that neither the DOE nor LANL had any responsive documents. Amigos Bravos contends that “numerous” LANL employees attended the public hearings over eleven days for the 1998 Triennial Review and that at least one of these attendees must have kept an accounting of items such as hours of attendance, communication costs, per diem amounts and travel expenses. A FOIA contact from the DOE’s Los Alamos Area Office (FOIA contact) informed us that she reinvestigated whether any responsive documents exist. In her reinvestigation, she confirmed that the DOE does not have any attendance records, per diem reimbursement claims for travel expenses, or any other responsive documents. She stated that the hearings were held in Santa Fe, New Mexico, only 27 miles from LANL, and that LANL employees do not typically file for reimbursement of expenses for trips of this distance. See January 2, 2001 Record of Telephone Conversation between Leonard M. Tao, OHA Attorney, and Lisa Cummings, Los Alamos Area Office Attorney.

Amigos Bravos also requested all documents provided to or received from persons providing legal and consulting services. The FOIA Officials did not identify specific documents, but stated that responsive documents concerning this request “are publicly available at the LANL Reading Room in Los Alamos.” Amigos Bravos informed us that it has reviewed the documents in the LANL Reading Room, but it asks us to require that the DOE clarify whether all responsive documents are in the LANL Reading Room. During our investigation, the FOIA contact stated to us that other responsive documents exist outside of the LANL Reading Room. See Memorandum of December 18, 2000 Telephone Conversation between Leonard M. Tao, OHA Attorney/Advisor, and Lisa Cummings, Los Alamos Area Office Attorney. Accordingly, we will remand this portion of the Amigos Bravos appeal and direct that the FOIA Officials identify responsive documents located outside of the LANL Reading Room and either release the responsive documents or provide a detailed explanation for withholding.

2. Exemption 6

The FOIA Officials withheld pursuant to Exemption 6 the names of two contractor employees and an employee’s “z” number. The FOIA contact informed us that every LANL employee and many LANL visitors are assigned a “z” number upon entering the facility. Amigos Bravos contends that the DOE’s redactions of these names and “z” number are unlawful because the disclosure of this information “would not constitute a clearly unwarranted invasion of personal privacy under Exemption 6.” The firm states that release of the withheld information will reveal which LANL program is providing support to the New Mexico Municipal League, a private association of municipalities.

As an initial matter, the FOIA contact informed us that the FOIA Officials mistakenly redacted the employee’s “z” number. See Memorandum of December 18, 2000 Telephone Conversation between Leonard M. Tao, OHA Attorney/Advisor, and Lisa Cummings, Los Alamos Area Office Attorney. Accordingly, we will remand this portion of the Amigos Bravos appeal and direct that the FOIA Officials release the redacted “z” number to Amigos Bravos. However, as described below, we find that the FOIA Officials properly withheld the names of contractor employees pursuant to 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 a record may be withheld under Exemption 6, an agency must undertake a three-step analysis. First, the agency must determine whether or not a significant privacy interest would be compromised by the disclosure of the record. If no privacy interest is identified, the record may not be withheld pursuant to Exemption 6. See Ripskis v. Department of Hous. and Urban Dev., 746 F.2d 1, 3 (D.C. Cir. 1984) (Ripskis). Second, the agency must determine whether or not release of the document would further the public interest by shedding light on the operations and activities of the Government. See Reporters Committee for Freedom of the Press v. Department of Justice, 489 U.S. 749 (1989) (Reporters Committee). Finally, the agency must weigh the privacy interests it has identified against the public interest in order to determine whether release of the record would constitute a clearly unwarranted invasion of personal privacy . See generally Ripskis, 746 F.2d at 3; Stone v. FBI, 727 F. Supp. 662, 663-64 (D.D.C. 1990).

A. The Privacy Interest

The FOIA Officials determined that there was a privacy interest in the identities of the contractor employees. We agree that a substantial privacy interest exists in the identities of private citizens due to the great potential that a commercial entity could misappropriate names for commercial purposes. The courts have also reached this conclusion. See Sheet Metal Workers v. Department of Veterans Affairs, 135 F.3d 891 (3d Cir. 1998) (the disclosure of names, social security numbers, or addresses of government contractor employees would constitute an unwarranted invasion of personal privacy); Painting and Drywall Work Preservation Fund v. Department of Housing and Urban Dev., 936 F.2d 1300 (D.C. Cir. 1991) (the release of contractor employees’ names and addresses would constitute a substantial invasion of privacy). Therefore, we find that there is a substantial privacy interest in the identities of these contractor employees.

B. The Public Interest

Having established the existence of a privacy interest, the next step is to determine whether there is a public interest in disclosure of the information. 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)). In its Appeal, Amigos Bravos states that release of the withheld information will reveal

which LANL program is providing support to the New Mexico Municipal League, a private association of municipalities.

We find that there is a minimal public interest in the release of the withheld information. Amigos Bravos has not demonstrated how the disclosure of specific names of non-federal employees will reveal anything of importance regarding the DOE or how it would serve the public interest. Moreover, Amigos Bravos has not shown how revealing the association of a LANL program to the New Mexico Municipal League alone will benefit the public interest at large. Also, revealing the names of private citizens will not contribute significantly to the public's understanding of government activities. Accordingly, we agree with the FOIA Officials and find that there is a minimal public interest in the disclosure of the names withheld pursuant to Exemption 6.

C. The Balancing Test

In determining whether documents may be withheld pursuant to Exemption 6 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 Services v. Securities and Exchange Comm’n, 926 F.2d 1197 (D.C. Cir. 1991). We have concluded above that there is a substantial privacy interest at stake in this case. Moreover, we found that there is only a minimal public interest in the release of the names of the contractor employees. Therefore, we find that the public interest in disclosure of the names withheld pursuant to Exemption 6 is outweighed by the real and identifiable privacy interests of the named individuals.

3. Agency Records

The FOIA Officials determined that various documents Amigos Bravos sought were not “agency records” and thus not subject to the FOIA, under the criteria set out by the federal courts. Cf. 5 U.S.C. § 552(f) (describing the scope of the term “agency” under the FOIA).(1) Once the FOIA Officials made this determination, the regulations required them to consider whether the records that did not meet these criteria were nonetheless subject to release under the DOE regulations. 10 C.F.R. § 1004.3(e); see 59 Fed. Reg. 63,884 (December 12, 1994). The DOE regulations provide that "[w]hen a contract with DOE provides that any records acquired or generated by the contractor in its performance of the contract shall be the property of the Government, DOE will make available to the public such records that are in the possession of the Government or the contractor, unless the records are exempt from public disclosure under 5 U.S.C. § 552(b)." 10 C.F.R. § 1004.3(e)(1). Therefore, when the DOE deemed that the requested records failed to qualify as "agency records," they might still have been subject to release if the contract between the DOE and the LANL contractor provided that the documents in question are the property of the agency.

Most of the requested documents that the FOIA Officials deemed were not “agency records” concerned legal and consulting services that LANL either used or proposed using. In their determination letter, the FOIA Officials stated that these legal and consulting services documents are “legal records” that the contract between the DOE and LANL clearly defines as being the property of the contractor. However, in our discussions with the FOIA contact, she informed us that the DOE may have made a mistake in their classification of some of these requested documents. In fact, she stated that some of these legal and consulting services records may not in fact be “legal records.” See Memorandum of December 18, 2000 Telephone Conversation between Leonard M. Tao, OHA Attorney/Advisor, and Lisa Cummings, Los Alamos Area Office Attorney. Since the FOIA contact acknowledged that a mistake may have been made in the DOE’s determination that responsive documents were “legal records” and thus the property of the contractor, we must remand this matter for a more thorough review. Accordingly, we order that the DOE identify all documents responsive to the Amigos Bravos request for “legal and consulting services” records and either release responsive documents or provide a detailed explanation for withholding.

It Is Therefore Ordered That:

(1) The Freedom of Information Act Appeal that Amigos Bravos filed on December 6, 2000, Case No. VFA-0634, is hereby granted as set forth in paragraph (2) below, and is denied in all other respects.

(2) This matter is hereby remanded to the Freedom of Information Act Officials of the Albuquerque Operations Office of the Department of Energy for further action in accordance with the directions set forth in this Decision.

(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 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: January 29, 2001

(1)The statutory language of the FOIA does not define the essential attributes of "agency records," but merely lists examples of the types of information agencies must make available to the public. See 5 U.S.C. § 552(a); see e.g. BMF Enterprises, 21 DOE ¶ 80,127 (1991); William Albert Hewgley, 19 DOE ¶ 80,120 (1989); Judith M. Gibbs, 16 DOE ¶ 80,133 (1987).