Case No. VFA-0643, 28 DOE ¶ 80,148

February 6, 2001

DECISION AND ORDER

OF THE DEPARTMENT OF ENERGY

Appeal

Name of Petitioner: Thomas J. Balamut

Date of Filing: December 28, 2000

Case Number: VFA-0643

On December 28, 2000, Thomas J. Balamut (Balamut) filed an Appeal from a determination that the Chicago Operations Office (CH) of the Department of Energy (DOE) issued to him. 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, CH released some responsive information to Balamut. This Appeal, if granted, would require the DOE to release the responsive information it withheld from him.

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 which 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

On October 10, 2000, Balamut filed a FOIA request with CH seeking a list of individual dollar amounts and a brief description of each cash award given to employees in the Chicago Operations Office, Argonne Group for Fiscal Year (FY) 1999 and FY 2000. In a determination letter, CH indicated that it located the documents responsive to Balamut’s request. CH released most of the responsive information. However, it withheld the individual names of award recipients associated with individual dollar amounts for the Argonne Group employees under Exemption 6. In his Appeal, Balamut challenges the application of Exemption 6 to the withheld information.

II. Analysis

A. 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) (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 (the Exemption 6 standard). Reporters Committee, 489 U.S. at 762-770. See generally Ripskis, 746 F.2d at 3.

1. Privacy Interest

CH determined that there was a privacy interest in the individual names of the award recipients associated with individual dollar amounts given to Argonne Group employees. According to CH, individual award recipients have “a significant privacy interest in protecting from disclosure the amount of his or her award.” CH further stated that “disclosing an individual’s award would not serve a significant public interest because it would not directly reveal the operations or activities of the government.” See Determination Letter at 1.

We have consistently determined “that there is a real and substantial threat to employees’ privacy if personal identifying information . . . were released.” Painting & Drywall Work Preservation Fund, Inc., 15 DOE ¶ 80,115 at 80,537 (1987). See also Painting & Drywall Work Preservation Fund, Inc., 16 DOE ¶ 80,102 at 80,504 (1987); International Brotherhood of Electrical Workers, 13 DOE ¶ 80,120 at 80,569 (1985); International Brotherhood of Electrical Workers, 13 DOE ¶ 80, 104 at 80,519 (1985). The same type of privacy interest is involved in this case. If a document listing the individual names of award recipients associated with individual dollar amounts were disclosed to the requester, the awards could obviously be directly linked to the employees who received them. Release of this material would reveal considerable personal financial information about each Argonne Group employee given an incentive award and would certainly constitute a serious invasion of personal privacy. In addition, courts have similarly found that even releasing favorable information about an employee, such as details of an employee’s outstanding performance evaluation, can be protected on the basis that it “may well embarrass an individual or incite jealousy among co-workers.” See Ripskis , 746 F.2d at 3. These considerations govern our determination. We therefore find a significant privacy interest in the individual names of the award recipients.

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 the operations and activities of the government.” 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 his Appeal, Balamut states that “ incentives to improve performance work only when individuals can measure their performance and resulting awards against some standard, which is the performance and resulting awards of others. They can then determine that the system is equitable. If this information is not open and public then the system is not a true incentive system, but rather a system of patronage, and results in a disincentive to employee’s performance.” See Appeal Letter at 1.

We agree with Balamut’s assertion that there is a public interest in the release of the withheld information. However, alleging that recognition of incentive awards should properly be made public does not by itself justify releasing personal information. See 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)). Therefore, we must balance both the privacy and public interests in this case.

3. The Balancing Test

In determining whether the disclosure of the names of individual award recipients could reasonably be expected to constitute an unwarranted invasion of personal privacy, 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).

We have concluded above that there is a substantial privacy interest at stake in this case. In addition, we find that although there is a public interest in the release of the names of the award recipients, we agree with CH that the public interest in disclosure of the withheld material is outweighed by the real and identifiable privacy interests of the Argonne Group employees.

C. 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). We find that CH properly segregated and released all responsive information by withholding only the names of individual award recipients associated with the dollar amounts of the awards given.

It Is Therefore Ordered That:

(1) The Appeal filed by Thomas Balamut on December 28, 2000, OHA Case No. VFA-0643, 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: February 6, 2001