Case No. VFA-0651, 28 DOE ¶ 80,154

March 23, 2001

DECISION AND ORDER

OF THE DEPARTMENT OF ENERGY

Appeal

Name of Petitioner: Robert J. Ylimaki

Date of Filing: February 16, 2001

Case Number: VFA-0651

This Decision concerns an Appeal filed by Robert J. Ylimaki from a determination that the Chicago Operations Office issued to him on January 24, 2001. In that determination, Chicago denied in part a request for information that Mr. Ylimaki 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. This Appeal, if granted, would require the DOE to release the withheld information.

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 is in the public interest. 10 C.F.R. § 1004.1.

I. Background

In his FOIA request, Mr. Ylimaki sought access to the dollar amounts of Special Act or Service Awards given to grade GS-15 employees at the Chicago Office, broken down by division. He also requested the salaries of specific Chicago Office employees and the amounts of any performance awards or bonuses given to these employees during fiscal year 1999. In its response, the Chicago Office withheld the division-by-division breakdown under Exemption 6 of the FOIA. 5 U.S.C. § 552(b)(6). Exemption 6 protects from mandatory disclosure “personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.” Id. In support of its determination, the Chicago Office stated that since the number of GS- 15 employees per division is so small, disclosure of the withheld information would “allow with minimal analysis and the process of elimination, the identification of individual special act awards

by employee.” The Chicago Office added that an individual “has a significant privacy interest in protecting from disclosure the amount of his or her award, since releasing the amount would allow direct comparison between employee awards and almost certainly incite jealousy in those employees receiving lower awards.” Determination at 1. However, the Chicago Office released a list of the GS- 15 bonuses broken down by major groups, and the salaries of specific employees. The amounts of these employees’ bonuses were also withheld under Exemption 6.

In his Appeal, Mr. Ylimaki contends that federal regulations require that the requested information be released. He cites 5 C.F.R. § 293.311(a), an Office of Personnel Management regulation, which states, in pertinent part, that the “following information . . . about most present and former Federal employees, is available to the public: . . . (4) Present and past annual salary rates (including performance awards or bonuses, incentive awards, merit pay amount, Meritorious or Distinguished Executive Ranks, and allowances and differentials).” With regard to the Chicago Office’s application of Exemption 6, he contends that the privacy interests of the employees involved is minimal at best, and that there is a substantial public interest in releasing evidence of what he claims are abuses in the awarding of bonuses at the Chicago Office. He therefore requests that we instruct the Chicago Office to release the withheld material.

II. Analysis

Contrary to Mr. Ylimaki’s position, 5 C.F.R. § 293.311 does not necessarily require the release of the information that he seeks. Paragraph (b) of that regulation provides that the information described in paragraph (a) need not be released if it

(1) Is selected in such a way that would reveal more about the employee on whom information is sought than the six enumerated items [in paragraph (a)], the disclosure of which would constitute a clearly unwarranted invasion of personal privacy; or

(2) Would otherwise be protected from mandatory disclosure under an exemption of the FOIA.

5 C.F.R. § 293.311(b). In its determination, the Chicago Office did not contend that the release of the requested information would reveal more about the employee on whom information is sought than the items enumerated in paragraph (a); instead, it took the position that one of those items, i.e., performance awards or bonuses, is itself exempt from mandatory release under the FOIA. We must therefore evaluate the Chicago Office’s application of Exemption 6.

The purpose of that Exemption 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 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. Reporters Committee, 489 U.S. at 762-770. See also Frank E. Isbill, 27 DOE ¶ 80,215 (1999); Sowell, Todd, Lafitte and Watson LLC., 27 DOE ¶ 80,226 (1999) (Sowell). In keeping with the rule that exemptions to the FOIA be construed narrowly, see EPA vs. Mink, 410 U.S. 73 (1973), the “clearly unwarranted” language of Exemption 6 weights the scales in favor of disclosure. Ripskis, 746 F.2d at 3.

Applying these standards to the facts of this case, we believe that a significant privacy interest is at stake. We find that the GS-15 employees in the Chicago Office have a significant interest in maintaining the confidentiality of their bonuses. As set forth in the determination, disclosure of these amounts would almost certainly lead to comparisons between bonuses given to employees, and could engender jealousy among those who received lesser amounts, or who received no awards, and promote discord in the workplace. See, e.g., Thomas J. Balamut, 28 DOE ¶ ______, Case No. VFA- 0643 (February 6, 2001); Jurgis Paliulionis, 27 DOE ¶ 80,235 (1999). Next, we find that release of the requested information would further the public interest by helping to reveal how the federal government compensates its employees. Since we have found that there are competing privacy and public interests in the information in question, we must now balance these interests to determine whether the information should be disclosed. For the reasons that follow, we conclude that the GS-15 employees’ privacy interests outweigh the public interest in disclosure, and that the Chicago Office properly withheld the material in question.

At the outset, we recognize that federal employees are public servants, and that the public has a significant interest in knowing how its employees are paid. This interest is reflected in the fact that the DOE and other federal agencies generally make available to the public the salaries of their employees. See, e.g., 5 C.F.R. § 293.311. In fact, such information is so readily available that we have previously stated that it must be released under the FOIA because federal employees have no reasonable expectation of privacy in this area. The Valley Times, 27 DOE ¶ 80,247 (1999). The fact that bonuses and performance awards are a part of their recipients’ compensation and are specifically referred to in the regulation under which federal salaries are generally released indicates that the public interest in this information is significant.

However, the Chicago Office has demonstrated that there is a substantial possibility that harassment of the GS-15 employees would result from the release of this type of information. Specifically, the Chicago Office has cited specific instances of inappropriate behavior by some of its employees. See letter from Chicago Office to Office of Hearings and Appeals, March 15, 2001, at 2; memorandum of March 13, 2001 telephone conversation between Linda Rhode, Chicago Office, and Robert Palmer, Office of Hearings and Appeals. Such harassment would disrupt the functioning of the Chicago Office and would adversely affect its ability to perform the responsibilities with which it is charged. We have previously found the potential for harassment of employees to be a sufficient justification for withholding information under Exemption 6. See, e.g., William Hyde, 18 DOE ¶ 80,102 (1988). Because the potential for harassment in this case outweighs the public interest in disclosure, we will deny Mr. Ylimaki’s Appeal.

It Is Therefore Ordered That:

(1) The Freedom of Information Act Appeal filed by Robert J. Ylimaki, Case No. VFA-0651, on February 16, 2001, is hereby denied.

(2) 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: March 23, 2001