Case No. VFA-0639, 28 DOE ¶ 80,139

January 22, 2001

DECISION AND ORDER

OF THE DEPARTMENT OF ENERGY

Appeal

Name of Petitioner: Kathie Light

Date of Filing: December 21, 2000

Case Number: VFA-0639

On December 21, 2000, Kathie Light (Light) filed an Appeal from a determination that the Richland Operations Office (Richland) of the Department of Energy (DOE) issued to her. The determination responded to a request for information 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. In the determination, Richland released some responsive information to Light. This Appeal, if granted, would require the DOE to release the remainder of the responsive information as well as to conduct a more thorough search for responsive documents.

The FOIA generally requires that documents held by the federal government be released to the public upon request. However, Congress has provided nine exemptions to the FOIA that set forth the types of information agencies are not required to release. Under the DOE’s regulations, a document exempt from disclosure under the FOIA shall nonetheless be released to the public whenever the DOE determines that disclosure is not contrary to federal law and in the public interest. 10 C.F.R. § 1004.1.

I. Background

In a request dated September 11, 2000, Light wrote Richland and requested copies of all documents and electronic communications concerning herself generated by eight named individuals as well as two unions (Item 1), the American Federation of Government Employees- Local 788 (AFGE) and the National Federation of Federal Employees - Local 181 (NFFE), dated from January 1, 2000 to September 11, 2000. (1) Additionally, Light requested documents relating to applicants for a job announcement (No. Richland-00-MP-44) (2) including applications, qualification analysis worksheets for eligible applicants and ranking panel score sheets (Item 2). Lastly, with regard to the job announcement, Light asked for all documents or electronic communications from five named individuals (Item 3).

In its November 6, 2000 Determination Letter, Richland provided Light with copies of documents responsive to Item 1 and 3. With regard to documents generated by AFGE and NFFE that might be responsive to Item 1, Richland stated that since those records were not agency records, they were not subject to the FOIA. Further, documents generated by three of the named individuals in their capacities as union officials that could be responsive to Items 1 and 3 would thus also not be subject to the provisions of the FOIA. Richland also stated that it had contacted Richland’s Office of Site Services (OSS) and had been informed that any electronic messages responsive to Item 1 would be no longer be in existence. OSS informed Richland that it maintained backup tapes of messages only for the previous 28 days; thus messages older than 28 days would have been erased when the tapes were recycled.

With regard to Item 2, Richland released redacted copies of the Qualification Analysis Worksheets for each eligible candidate and the rating sheets. In these documents Richland withheld the applicants’ names, scores, names of individuals on the selection panel and “any other personal information” pursuant to Exemption 6 of the FOIA. Richland also withheld in their entirety, pursuant to Exemption 6, the application materials each applicant submitted along with the written responses to the ranking criteria that each applicant submitted (application materials). Richland determined that, after considering the privacy interests of the individuals referenced in the withheld material and the public interest in the release of the withheld material, that release of the withheld information would constitute a clearly unwarranted invasion of privacy.

In her submission, Light asserts several grounds for appeal. First, Light argues that any documents created or possessed by AFGE and NFFE and their officials are agency records and subject to the FOIA, since the documents were generated on government-owned equipment and that there was no explicit agreement authorizing union use of government-owned equipment until April 16, 2000. Thus, any documents generated on government owned equipment prior to April 16, 2000 should be considered agency records. Second, she challenges withholding in their entirety all the application materials pursuant to Exemption 6. Lastly, she asserts that an inadequate search was conducted for responsive documents. In particular, she states that Richland failed to contact OSS in a timely enough fashion to prevent the destruction of electronic documents and that there should exist documents from three of the named officials who were involved in a Richland management decision to remove labor relations from Light’s job responsibilities.

II. Analysis

A. Agency Records

Under the FOIA, an “agency record” is a document that is (1) either created or obtained by an agency, and (2) under agency control at the time of a FOIA request. Department of Justice v. Tax Analysts, 492 U.S. 136, 144-45 (1989). Clear indications that a document is an “agency record” are when a document of this type is part of an agency file, and it was used for an agency purpose. Kissinger v. Committee for Freedom of the Press, 445 U.S. 136, 157 (1980); Bureau of Nat’l Affairs, Inc. v. Department of Justice, 742 F.2d 1484, 1489-90 (D.C. Cir. 1984) (BNA); J. Eileen Price, 25 DOE ¶ 80,114 (1995) (Price). In making the “agency records” determination, we look at the totality of the circumstances surrounding the creation, maintenance and use of the documents in question. See BNA, 742 F.2d at 1492-93; Price.

With regard to the potentially responsive documents in possession of the two unions, AFGE and NFFE, and their officials, Richland has stated that none of these documents were created by Richland nor has Richland exercised control over these documents. In this regard, Richland has been informed that any potentially responsive documents that are in the possession of the unions or their officials, other than the ones already provided to Richland, are used exclusively for union operations. See Memorandum of telephone conversation between Dorothy Riehle, Richland, and Richard Cronin, Assistant Director, OHA (January 5, 2001). Consequently, we find that the responsive documents in possession of AFGE and NFFE and their officials, that are used for exclusively union operations, are not agency records and are not subject to the FOIA.

Our conclusion is not changed by Light’s assertion that until April 16, 2000, neither union had a valid agreement with DOE to use DOE equipment to create documents and that use of DOE equipment prior to April 16, 2000, makes any such document created before that date an agency document. In Gallant v. NLRB, the United States Court of Appeals held that documents may not be considered agency documents solely because they were created by an individual on agency time on agency equipment. Gallant v. NLRB, 26 F.3d 168, 171-72 (D.C. Cir. 1994) (Gallant). In examining existing case law, the court in Gallant held that while use of agency resources by an agency employee in the creation of a document is a factor in determining whether a document is an agency record, it is not as significant as other factors such as the purpose for which the document was created, the actual use of the document, and the extent to which the author or other agency employees acting in the scope of their employment relied on the document to carry out agency business. Id. at 172. Thus, the fact that agency resources were used to create a document is insufficient alone to render a document an agency record. Id. As described earlier, the union documents at issue in this case were used exclusively for union purposes and have not been in the control of Richland. Consequently, responsive documents possessed by the unions and their officials and used exclusively for union operations are not agency records.

B. 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 either exemption. Ripskis v. Department of HUD, 746 F.2d 1, 3 (D.C. Cir. 1984) (Ripkis). 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 Department of Justice v. Reporters Comm. for Freedom of the Press, 489 U.S. 749 (1989) (Reporters Committee); Hopkins v. Department of HUD, 929 F.2d 81, 88 (2d Cir. 1991); 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 (the Exemption 6 standard). Reporters Committee, 489 U.S. at 762-770. See generally Ripkis, 746 F.2d at 3.

1. Privacy Interest

Richland determined that there was a privacy interest in the identity of the unsuccessful job applicants. According to Richland, each applicant made a “personal choice” to apply for the vacant position, and Richland invoked the FOIA to protect that choice from public disclosure. Determination Letter at 2.

Courts have similarly found that the disclosure of the identities of unsuccessful federal job applicants constitutes a clearly unwarranted invasion of personal privacy For instance, Core v. U.S. Postal Service, 730 F.2d 946 (4th Cir. 1984), presents a fact pattern similar to this case. (3) Core was an unsuccessful applicant for a vacancy at the U.S. Postal Service (“the Service”). He argued that the Service had violated hiring regulations, and then requested information about the other unsuccessful job applicants. (4) The Service invoked Exemption 6 and withheld responsive information about the unsuccessful applicants, determining that harm could arise from such a disclosure. The Court upheld the withholding and found that “disclosure may embarrass or harm applicants who failed to get a job.” Core, 730 F.2d at 949. The court reasoned that present or prospective employers or coworkers could learn that others were deemed better qualified for a competitive appointment. Id. See also Barvick v. Cisneros, 961 F. Supp. 1015, 1021 (D. Kan. 1996) (Barvick) (upholding agency’s nondisclosure of identifying information on the unsuccessful applicants because it could lead to embarrassment or adversely affect their future employment or promotion prospects). Therefore, we find that there is a substantial privacy interest in the identities of unsuccessful federal job applicants.

2. Public Interest in Disclosure

Having established the existence of a privacy interest, the next step is to determine whether there is a public interest in disclosure. 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 her Appeal, Light does not specifically identify a public interest that would be served by release of the application materials but asserts that there may have been irregularities in the process of selecting applicants for the “best qualified” list for the job announcement, especially since she believes that other, less qualified individuals were put on the list.

We find that there is a minimal public interest in the release of the withheld information. Light has not demonstrated how the disclosure of information about each job applicant is necessary for the public to evaluate Richland’s hiring practices. Simply alleging that an agency has engaged in violations of hiring regulations does not justify releasing personal information. See Barvick, 941 F. Supp. at 1022 (quoting Hopkins v. Department of Housing and Urban Dev., 929 F.2d 81, 88 (2d Cir. 1991) (invocation of a legitimate public interest cannot itself justify the release of personal information)). This is especially true in this case where Richland hired no one pursuant to the job announcement. Thus, release of the withheld information would tell us little about Richland’s hiring practices. Therefore, we agree with Richland and find that there is a minimal public interest in the disclosure of the responsive material.

3. The Balancing Test

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 unsuccessful applicants. Therefore, we find that the release of the application materials would constitute a clearly unwarranted invasion of personal privacy. Consequently, we believe Richland properly withheld the information pursuant to Exemption 6.

C. Adequacy of the Search

The FOIA requires that federal agencies generally release documents to the public upon request. Following an appropriate request, the FOIA requires agencies to search their records for responsive documents. 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., Eugene Maples, 23 DOE ¶ 80,106 (1993). 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). Consequently, the determination of whether a search was reasonable is "dependent upon the circumstances of the case." Founding Church of Scientology v. NSA, 610 F.2d 824, 834 (D.C. Cir. 1979).

We contacted Richland to determine the extent of the search that had been conducted for responsive documents. See Memorandum of telephone conversation between Dorothy Riehle, Richland, and Richard Cronin, Assistant Director, OHA (January 2, 2001); Memorandum of telephone conversation between Dorothy Riehle, Richland, and Richard Cronin, Assistant Director, OHA (January 11, 2001). Richland informed us that upon receipt of the request it contacted each of the named individuals and asked each to conduct a search. Richland also undertook a search at its office of Human Resources. Richland then contacted the Office of Site Services (OSS) to determine the existence of responsive electronic messages. Richland was informed that any electronic messages responsive to the request would have been deleted 28 days after their creation. Given the facts presented to us, we believe that Richland conducted an adequate search for documents responsive to Light’s request.

Light’s arguments to the contrary are unavailing. Light asserts that Richland’s delay in contacting OSS resulted in the destruction of potentially responsive electronic documents. Upon receipt of Light’s FOIA Request, a Richland official immediately contacted OSS and was informed that all messages older than 28 days old were destroyed. Because this official had been informed that Richland’s Human Resources office had already provided her with all documents that might be on the OSS computer (other than union messages), she did not ask OSS to conduct a search until October 3, 2000. Memorandum of telephone conversation between Dorothy Riehle, Richland, and Richard Cronin, Assistant Director, OHA (January 11, 2001). Given the evidence before us, we do not believe that Richland was acting in bad faith in conducting the search. While Light finds it inconceivable that there is no documentation regarding the decision to remove one of her job responsibilities, the central issue to be resolved is not whether there might exist any other documents possibly responsive to the request, or whether such documents should exist, but rather whether the search for documents was adequate. See Weisburg v. Department of Justice, 745 F.2d 1476, 1485 (D.C. Cir 1984); Citizens Commission on Human Rights v. FDA, 45 F.3d 1325 (9th Cir. 1995). Even if Light is correct that additional documents exist, the FOIA only requires that Richland conduct a reasonable search for documents. As described above, we find that Richland’s search was reasonably calculated to discover responsive documents and thus is sufficient under the FOIA.

D. Segregability

The FOIA requires that “[a]ny reasonably segregable portion of a record shall be provided to any person requesting such record after deletion of the portions which are exempt. . . .” 5 U.S.C. § 552(b) (1982). We have reviewed a sample of the application materials and find that there is no segregable material that can be provided to Light. The very small amount of segregable material contained in the application materials is inextricably intertwined with the protectable identifying information in the applications materials. Consequently, we find that Richland properly withheld the application materials in their entirety.

III. Conclusion

In sum, we find that Richland conducted an adequate search for documents responsive to Light’s FOIA Appeal. Further, any responsive union documents used exclusively for union purposes are not agency records for the purposes of the FOIA. Lastly, Richland properly withheld in their entirety the application materials for job announcement No. Richland-00-MP-44. Thus, Light’s appeal will be denied.

It Is Therefore Ordered That:

(1) The Appeal filed by Kathie Light on December 21, 2000, OHA Case No. VFA-0639, is hereby denied.

(2) 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 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: January 22, 2001

(1)Several of the named individuals were union officials of AFGE or NFFE. Light later modified her request and requested, with regard to union officials named in her request, documents dated from January 1, 2000 through April 15, 2000.

(2)This job announcement was subsequently cancelled.

(3)Because Richland canceled the vacancy announcement, all the applicants for the job announcement were unsuccessful.

(4)Core also requested, and received, information about the successful applicants. Core, 730 F.2d at 947.