Case No. VFA-0652, 28 DOE ¶ 80,155

March 27, 2001

DECISION AND ORDER

OF THE DEPARTMENT OF ENERGY

APPEAL

Name of Petitioner:David A. Mitchell

Date of Filing:February 20, 2001

Case Number: VFA-0652

This decision addresses the Freedom of Information Act (FOIA) appeal filed by David Mitchell (appellant) pursuant to 5 U.S.C. § 552, as implemented by the Department of Energy (DOE) at 10 C.F.R. Part 1004. For the reasons set forth below, the appeal will be granted in part and remanded for a new determination in accordance with this decision.

I. Background

The appellant(1) filed a FOIA request dated October 26, 2000 with the DOE Office of Civilian Radioactive Waste Management (OCRWM) in Yucca Mountain, Nevada, seeking records relating to:

OCRWM Management’s investigation of the charge of harassment and intimidation made by Bill Belke, Site NRC, against Bob Clark, Acting Director of OCRWM’s Office of Quality Assurance . . . including a November 23, 1999 report filed with the OCRWM Concerns Program.

By letter dated October 27, 2000, the appellant amended his FOIA request to seek additional records relating to:

Concerns raised by [the appellant] in late summer/early fall 1999 to the [DOE OCRWM] Concerns Program, regarding Quality Assurance and Work Environment Issues, relating to his employment with MACTEC, Inc. and work performed at the Sandia National Laboratory and Yucca Mountain Project [including] those concerns

that were referred by OCRWM to the DOE Inspector General and DOE Security [and] the U.S. Nuclear Regulatory Commission.

By letter dated December 20, 2000 to the appellant’s attorney, the OCRWM FOIA Office (OCRWM/FOI) partially denied the appellant’s FOIA request, stating the following:

[D]ocuments consisting of 1,303 pages in which all third party names, residential addresses, employee numbers and/or social security numbers, employee signatures, their listed witness names and third party performance appraisals contained within have been redacted pursuant to 5 U.S.C. 552(b)(6) [(“Exemption 6") of the FOIA], because release of this information would constitute a clearly unwarranted invasion of personal privacy [that] far outweighs any possible public interest to be served by release of this information.

Also pursuant to Exemption 6, the OCRWM/FOI withheld in their entirety 7 resumes consisting of 66 pages, stating that exempt information is “so intermingled [with nonexempt information] that no substantive portions could be segregated for release as nonexempt.” In addition, pursuant to 10 C.F.R. § 1004.9, the OCRWM/FOI responded, “you are categorized as a commercial requester.” The OCRWM/FOI further stated that although the appellant had originally stated a willingness to pay an amount of not more than $100, “when this office informed your firm of the actual cost, an e-mail confirmation was received from [your assistant], stating your firm’s willingness to pay the amount of $951.20.” (2)

The appellant, who has filed a reprisal complaint against a DOE contractor and submitted his FOIA requests “for the purpose of obtaining information regarding the government investigation [into his] allegations,” appealed from the OCRWM/FOI’s determination on February 20, 2001. In his appeal, he asserts the following:

(A) The OCRWM/FOI was “overzealous” in redacting certain documents under Exemption 6, since many of the redacted documents had been supplied in unredacted form to the appellant through case discovery, “created as a result of concerns raised by the appellant to the DOE,” or previously exchanged between the DOE and the appellant himself. The Appellant further asserts that “information obtained by the DOE in investigating . . . concerns [including documents relevant to the DOE’s Interim Final Report] should not be withheld from the person who raised those concerns.”

(B) The OCRWM/FOI erroneously categorized the appellant as a “commercial requester” for purposes of charging processing fees associated with this FOIA requests.

(C) The appellant is entitled to either a fee waiver or a reduction in fees in proportion to the amount of time “inappropriately spent reviewing and redacting information from documents previously produced by or to” the appellant.

(D) The OCRWM erred in charging the appellant $951.20 for processing his FOIA request, since the appellant had stated a willingness to pay not more than $100 and the OCRWM denied him the opportunity to narrow his FOIA requests after he learned of the actual cost. The appellant maintains that because he needed the requested documents for an upcoming trial, he was effectively forced to accept the charge and subsequently dispute it through this administrative appeal.

We address each of the appellant’s assertions in kind below.

II. Analysis

A. Whether Exemption 6 Protects the Redacted and Withheld Information

With nine exemptions, the FOIA requires federal agencies to release documents to the public upon request. Exemption 6 protects from disclosure “personnel 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). “Similar files” include all documents which contain information that applies to a particular individual. Department of State v. Washington Post, 456 U.S. 595, 599 (1982). If documents are of the type described in Exemption 6, then an agency must undertake a three step analysis, as enumerated by the Supreme Court in Department of Defense v. Federal Labor Relations Auth., 510 U.S. 487, 495-96 (1994) (FLRA), in determining whether Exemption 6's protection applies. First, an agency must determine whether a significant privacy interest would be invaded by disclosure of the record. If no privacy interest is identified, the record may not be withheld under Exemption 6. See also Department of Justice v. Reporters Comm. for Freedom of the Press, 489 U.S. 749 (1989) (Reporters Committee); Ripskis v. Department of HUD, 746 F.2d 1, 3 (D.C. Cir. 1984). 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. Finally, the agency must weigh the identified privacy interests against the public interest in order to determine whether release of the information would constitute a clearly unwarranted invasion of that person’s privacy. With these principles in mind, we shall now review the contested documents.

1. Documents Relating to Appellant’s Reprisal Allegations

The first set of documents relate to the appellant’s allegations of reprisal against a DOE contractor and consist of a schedule and transcripts of interviews of contractor employees; pages from two DOE Interim Final Reports of investigations (and addendums thereto) into the appellant’s allegations; an Issue Analysis Plan prepared by the OCRWM Employee Concerns Program (EC) manager; various Deficiency Reports and Quality Assurance Checklists prepared by contractor employees; and various handwritten and typed memoranda, letters, and emails (many authored by or addressed to the appellant) regarding the EC’s investigation into the appellant’s allegations. We have reviewed unredacted copies of the documents and, as discussed below, we find that in every instance the OCRWM/FOI properly and meticulously applied Exemption 6 in withholding only third party names, residential addresses, employee or social security numbers, and employee signatures (collectively, “the redacted information”).(3)

As a threshold matter, we find that the redacted information constitutes a “similar file,” because it applies to particular individuals.(4) Having so found, we must next determine whether disclosure of the information would constitute an invasion of privacy and how severe an invasion it would be. Reporters Committee, 489 U.S. at 763, defines privacy as encompassing “the individual’s control of information concerning his or her person,” which “includes the prosaic . . . as well as the intimate and potentially embarrassing,” Painting and Drywall Work Preservation Fund v. HUD, 936 F.2d 1300, 1302 (D.C. Cir. 1991) (PDWPF).

In this case, the redacted information includes not merely names, but also intimate information, such as addresses and employee and social security numbers. We therefore find that there is a privacy interest in the redacted information. Furthermore, because the purpose for which a FOIA requester seeks information is immaterial, if we were to find that the appellant is entitled to receive the information sought, that same information would have to be provided, for example, to creditors, salesmen, and commercial organizations. PDWPF, 936 F.2d at 1303. See also, Reporters Committee, 498 U.S. at 771 (Congress clearly intended the FOIA “to give any member of the public as much right to disclosure as one with a special interest [in a particular document]”). We therefore find that the privacy interest in the redacted information is significant.(5)

On the other hand, the public interest in disclosure of the redacted information is virtually nonexistent and consequently does not override the significant privacy interests involved. Although appellant claims a unique entitlement to disclosure of the redacted information because it relates to allegations and concerns raised by him, the relevant inquiry in determining whether there is a public interest in disclosure is the extent to which disclosure would serve the “core purpose of the FOIA,”

i.e., to “contribute significantly to public understanding of the operations or activities of government.” FLRA, 510 U.S. at 1012. Put another way, proper emphasis is upon the public’s right “to be informed about what their government is up to,” not the specific interest of a person seeking disclosure in a particular case. Reporters Committee, 489 U.S. at 772. See also, Professional Review Organization v. Department of HHS, 607 F. Supp. 423, 427 (D.D.C. 1985). “[W]hether an invasion of privacy is warranted cannot turn on the purposes for which the request for information is made.” Reporters Committee, 498 U.S. at 772. The redacted information in the memos consists of the names of contractor employees. The names deal with the alleged failure of a contractor to comply with relevant laws. In this case, the names do not cast light on what the DOE “is up to,” and there is no obvious public interest in its disclosure. See PDWPF, 936 F.2d at 1303 (information potentially revealing contractor’s failure to pay prevailing wages on HUD-assisted projects does not shed light on HUD activity). In addition, the fact that a small portion of the redacted information is contained in DOE Interim Final Reports regarding the appellant’s allegations does not change the fact that the information regards the activities of private, non-federal employees and has no apparent bearing upon government activities.

Furthermore, that the redacted information may be contained in discoverable documents is irrelevant for purposes of the FOIA and Exemption 6. “Regardless of the requested information’s usefulness in a separate proceeding, the FOIA does not supplant discovery or enlarge discovery rights. Being a private litigant neither diminishes nor enhances the merits of a FOIA request.” Barvick v. Cisneros, 941 F. Supp. 1015, 1020 (D. Kan. 1996) (Barvick) (citing National Labor Relations Board v. Sears, Roebuck & Co., 421 U.S. 132, 143 n.10 (1975). In the same vein, also immaterial is the fact that the redacted information is contained in documents originally created by or sent to the appellant himself, as the identity of the requesting party generally has no bearing on the merits of his FOIA request. See Reporters Committee, 489 U.S. at 771.

Based upon the foregoing, we find that the OCRWM/FOI properly applied Exemption 6 to the redacted information.

2. The Resumes

The second set of disputed documents consists of 7 resumes of contractor employees (collectively, “the resumes”), which the OCRWM/FOI wholly withheld under Exemption 6, based upon its determination that exempt information in the resumes is “so intermingled that no substantive portions could be segregated for release as non-exempt.” We agree that the resumes must be completely withheld, but do so based upon the determination that Exemption 6 protects all information in the resumes, i.e., there is no non-exempt information to segregate.

Our review of unredacted copies of the resumes reveals that they are inherently personal in nature, i.e., pertain to particular individuals, and therefore invocation of Exemption 6 analysis is proper. We further find that the resumes trigger a privacy interest, as they contain the names of private individuals, and their addresses, telephone numbers, education and employment histories. As discussed above, an individual has a significant privacy interest in his name and contact information. Furthermore, each non-federal employee represented by one of the resumes has at least a small privacy interest in the history set forth therein. Even a nominal privacy interest is sufficient to justify withholding the resumes in this case, because there is no public interest involved. As with the redacted information, the resumes regard private contractor employees and, as such, disclosure will not contribute significantly to public understanding of government operations or activities. The resumes therefore may be withheld in their entirety.

B. Whether The Appellant is a Commercial Use Requester

The FOIA delineates three types of costs--"search costs," "duplication costs," and "review costs"--and places requesters into three categories that determine which of these costs a given requester must pay. If a requester wants the information for a "commercial use," it must pay for all three types of costs incurred. In contrast, educational institutions and the news media are required to pay only duplication costs, and all other requesters are required to pay search and duplication costs but not review costs. 5 U.S.C. § 552(a)(4)(A)(ii); 10 C.F.R. § 1004.9(b).

The appellant asserts that the OCRWM/FOI erroneously categorized him as a “commercial use requester.” We agree. In defending its categorization of the appellant, the OCRWM/FOI explained that it looked to the attorney who had filed the FOIA requests on behalf the appellant. OHA telephone conversation with the OCRWM/FOI Officer, Feb. 29, 2001. The OCRWM/FOI asserted that because the attorney directly filed the FOIA requests, presumably for a fee to be paid by her client (i.e., the appellant), the attorney was properly charged the commercial use rate. For the purpose of assessing processing fees, however, when one party files a FOIA request on behalf of another, agencies must look to the party for whom the request is made. See Government Accountability Project (GAP), 25 DOE ¶ 80,203 (1996) (analyzing whether client seeking documents, not organization that actually filed request, is “commercial use requester”); OMB Fee Guidelines, 52 Fed. Reg. at 10,017-18. Thus, in determining whether the commercial rate applies to this case, we must look through the attorney to the appellant.

In doing so, we find that the appellant is not a commercial use requester. A “commercial use” is defined as “one that furthers a commercial, trade or profit interest as those are commonly understood.” 10 C.F.R. § 1004.2(c). In this case, the appellant seeks to use the requested information in proceedings stemming from his complaint of reprisal against a DOE contractor. Information helpful to a retaliation claim may further a requester's interest in compensation or retribution, but not an interest in commerce, trade, or profit. McClellan Ecological Seepage Situation v. Carlucci, 835 F.2d 1282, 1285 (9th Cir. 1987). Therefore, the appellant is not a commercial use requester for purposes of FOIA. See GAP, supra.

C. Whether Appellant is Entitled to a Fee Waiver or Reduction of Fees

The appellant asserts that he is entitled to a fee waiver or reduction of fees for “time inappropriately spent reviewing and redacting information previously produced by or to [the appellant].(6) We disagree.

In asserting that he is entitled to a waiver or reduction of fees, appellant fails to recognize the distinction between documents produced through the FOIA and documents produced through case discovery. As discussed above, the identity of a requester generally has no bearing upon the merits of his FOIA request; even the fact that the requester has unredacted copies of documents in his possession has no bearing upon whether those same documents must be produced to him in redacted form under the FOIA. See Reporters Committee, 489 U.S. at 772. Because we have found that the responsive documents were properly redacted in this case, it may be appropriate to charge redaction fees, if the appellant, once placed in the proper request category, is subject to such fees.

D. Whether Charging Appellant Processing Fees in Excess of $100 Was Proper

Appellant asserts that because he submitted a written statement to the OCRWM/FOI that he would pay processing fees up to $100 and requested advance notice if the fees would exceed that amount, the OCRWM/FOI should not have charged him $951.20, or any amount in excess of $100. Although we do not have jurisdiction to simply reduce FOIA processing fees, we contacted the Director of the DOE FOI/Privacy Act Division (the FOIA Director) regarding this matter. The Director indicated that it would have been proper for the OCRWM/FOI to obtain the appellant’s authorization for the greater amount prior to incurring the $951.20 cost, allow the appellant to narrow his FOIA request, incur production costs only up to $100, or choose to produce all of the responsive documents to him at a charge of no more than $100. OHA telephone conversation with the Director, Mar. 15, 2001. Although resolution of the fee dispute remains with the appellant and the OCRWM/FOI, we note that our finding that the OCRWM/FOI improperly categorized appellant as a commercial requester may effect a reduction in fees charged.

III. Conclusion

Based upon the foregoing analysis, we find that the redacted information and the withheld resumes are properly protected from disclosure under Exemption 6. We further find that the appellant is not a commercial use requester for purposes of assessing processing fees, but that he is not entitled to or reduction in fees, except to the extent that his improper categorization may have affected the fees charged to him. This matter is therefore remanded to the DOE Office of Civilian Radioactive Waste Management for a new determination as to how the appellant must be categorized under 5 U.S.C. § 552(a)(4)(a)(ii) and 10 C.F.R. § 1004.9(b), for the purpose of assessing processing fees.

It Is Therefore Ordered That:

(1) The appeal filed by David Mitchell on February 20, 2001, Case Number VFA-0652, is hereby granted as specified in Paragraph (2) below.

(2) This matter is hereby remanded to the FOIA/Privacy Act Division of the Department of Energy Office of Civilian Radioactive Waste Management to issue a new determination in accordance with the instructions set forth in this Decision and Order.

(3) 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 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: March 27, 2001

(1)All documents filed by the appellant in this matter were actually filed on his behalf by his attorney.

(2)As discussed below, the appellant consented to pay $951.20 with the intent of subsequently appealing the fee.

(3)Although the OCRWM/FOI indicated that it also withheld third party witness names and performance appraisals, no such information was redacted from the contested documents sent to this office for review by the appellant. Most of the redacted information therein is contractor employee names.

(4)Because the type of privacy and public interests associated with the redacted information is essentially the same, it is unnecessary to perform a separate analysis of each piece of redacted information. We therefore will conduct an Exemption 6 analysis for the redacted information in its entirety.

(5)We note that because we find that there is no identifiable public interest in disclosure (discussed infra), even a nominal privacy interest would weigh against disclosure.

(6)”We note that appellant has not asserted that he is entitled to a waiver of or reduction in fees under the FOIA’s fee waiver provisions. 5 U.S.C. § 552(a)(4)(a)(iii).