Case No. VFA-0650, 28 DOE ¶ 80,152

March 2, 2001

DECISION AND ORDER

OF THE DEPARTMENT OF ENERGY

Appeal

Name of Appellant:Radioactive Waste Management Associates

Date of Filing:February 12, 2001

Case Number: VFA-0650

Radioactive Waste Management Associates (RWMA) filed this Appeal in response to a determination issued to it by the Department of Energy's Ohio Field Office (OH). The determination deals with a request that RWMA submitted pursuant to the Freedom of Information Act (FOIA), 5 U.S.C. § 552, as implemented by the Department of Energy at 10 C.F.R. Part 1004. In its Appeal, RWMA requests the release of material responsive to the request. As explained below, we will remand RWMA’s request for further processing.

I. Background

RWMA’s FOIA request sought the release of records relating to "the handling, reprocessing, and storage of uranium recovered at the NFS-West Valley reprocessing plant and stored at ... Fernald, Ohio." OH located one responsive document, a two-volume draft report titled "Ohio Field Office Recycled Uranium Project Report, May 15, 2000, DOE-OH-00-0001" (the draft report). However, OH withheld the draft report in its entirety, claiming it was exempt from mandatory release pursuant to 5 U.S.C. § 552(b)(5) (Exemption 5). RWMA then filed the present Appeal with the Office of Hearings and Appeals.

II. Analysis

The FOIA generally requires that all federal agency records be made available to the public, subject to certain specified exemptions. The Act provides, however, for nine categories of records that are exempt from mandatory disclosure. OH withheld the draft report

under Exemption 5 of the FOIA, which exempts "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). 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).

Included within the boundaries of Exemption 5 is the "predecisional" privilege, sometimes referred to as the "executive" or "deliberative process" privilege. Coastal States Gas Corporation v. Department of Energy, 617 F.2d 854, 862 (D.C. Cir. 1980) (Coastal States). The predecisional privilege permits the agency to withhold records 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) (Mink); Kaiser Aluminum & Chemical Corp. v. United States, 157 F. Supp. 939 (Ct. Cl. 1958).

In order to be shielded by Exemption 5, a record 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 predecisional privilege of Exemption 5 covers records that typically reflect the personal opinion of the writer rather than the final policy of the agency. Id. Consequently, the privilege does not generally protect records containing purely factual matters.

There are, however, exceptions to this general rule. The first exception is for records in which factual information was selected from a larger collection of facts as part of the agency's deliberative process, and the release of either the collection of facts or the selected facts would reveal that deliberative process. Montrose v. Train, 491 F.2d 63 (D.C. Cir. 1974); Dudman Communications v. Department of Air Force, 815 F.2d 1564 (D.C. Cir. 1987). The second exception is for factual information that is so inextricably intertwined with deliberative material that its exposure would reveal the agency's deliberative process. Wolfe v. Department of Health and Human Services, 839 F.2d 769, 774-76 (D.C. Cir. 1988). Factual matter that does not fall within either of these two categories does not generally qualify for protection under Exemption 5.

The fact that a document meets the criteria for withholding discussed above does not necessarily mean that it may be withheld in its entirety. The FOIA requires that “any reasonably segregable portion of a record shall be provided to any person requesting such record after deletion of the portions which are exempt under this subsection." 5 U.S.C. § 552(b); see Greg Long, 25 DOE ¶ 80,129 (1995). However, material need not be segregated and released when the exempt and nonexempt material are so "inextricably intertwined" that release of the nonexempt material would compromise the exempt material, or where nonexempt material is so small and interspersed with exempt material that it would pose "an inordinate burden" to segregate it. Lead Industries Assoc. v. OSHA, 610 F.2d 70, 85 (2d Cir. 1979).

OH states in the Determination Letter that “because of the way the findings are presented in this draft report, it would be virtually impossible to segregate out any nonexempt material.” Based on our review of a sample of the draft report, however, we find that OH should reconsider the issue of segregability. For example, the draft report contains a table of contents, a list of tables, a list of figures, and introductory matter that do not appear to qualify for withholding under Exemption 5.

III. Conclusion

On remand, OH must review the withheld document, segregate and release all nonexempt portions of the documents, and issue a new determination that justifies any withholding.

It Is Therefore Ordered That:

(1) The Appeal filed by Radioactive Waste Management Associates (Case No. VFA-0650) is hereby granted as set forth in paragraph (2) below and denied in all other aspects.

(2) This matter is hereby remanded to the Ohio Field Office for further proceedings consistent with the guidelines set forth in the above Decision.

(3) This is a final Order of the Department of Energy from which any aggrieved party may seek judicial review pursuant to 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 located, or in the District of Columbia.

George B. Breznay

Director

Office of Hearings and Appeals

Date:March 2, 2001