H & J Tool & Die Company, Inc., Case No. VFA-0653, April 24, 2001

Case No. VFA-0653, 28 DOE ¶ 80,166

April 24, 2001

DECISION AND ORDER

OF THE DEPARTMENT OF ENERGY

Appeal

Name of Petitioner:H & J Tool & Die Company, Incorporated

Date of Filing:March 12, 2001

Case Number: VFA-0653

H & J Tool & Die Company, Incorporated (“the Firm”) has appealed two determinations issued by the Department of Energy (DOE) under the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552, as implemented by the DOE in 10 C.F.R. Part 1004. On March 12, 2001, the Firm appealed a determination issued on January 19, 2001, by the Office of the Inspector General (“OIG”) on the grounds that the OIG had failed to follow proper procedures and had improperly withheld certain information.(1) On April 4, 2001, the Firm appealed a related determination that was issued by the FOIA and Privacy Act Division of the Office of the Executive Secretariat (FOIA Office) on November 29, 2000, on the grounds that DOE had failed to conduct an adequate search for documents that were responsive to its FOIA request.

I. BACKGROUND

By letter dated November 16, 2000, the Firm sent a letter to the FOIA Office seeking documents regarding a complaint that had been filed with the OIG as well as all other documents relating to the Firm. On November 29, 2000, the FOIA Office sent the Firm a letter which indicated that the request for documents relating to the OIG complaint had been assigned to the OIG to conduct a search for responsive documents and provide a direct reply to the Firm. In this letter, the FOIA Office did not mention that the Firm had also requested documents about the Firm, nor did it indicate that any other DOE office had been asked to search for responsive documents.

By letter dated January 19, 2001, the OIG responded to the portion of the Firm's FOIA request that sought documents regarding a specific OIG complaint by indicating that:

The OIG had located responsive documents;

The OIG was releasing four of these documents in their entirety;

The OIG did not provide two documents to the Firm because it believed that the Firm already had these documents; and

The OIG released one document (a copy of a completed OIG complaint form) to the Firm with names and other information withheld pursuant to Exemptions 6 and 7(C) of the FOIA, 5 U.S.C. § 552(b)(6) and § 552(b)(7)(C).

The Firm appealed the determination of the OIG to OHA on the grounds that the OIG failed to provide two documents because it believed that the Firm already had these documents and wrongfully withheld information from a document under Exemptions 6 and 7(C) of the FOIA.(2) The Firm also explained that it was challenging the adequacy of the search conducted by the FOIA Office for all documents that contained information about the Firm. See Memorandum of Telephone Conversation between Joseph A. Hauger, Jr., President, H & J Tool & Die Company, and Linda Lazarus, Staff Attorney, OHA (April 4, 2001).

II. ANALYSIS

A. Adequacy of the Search

The FOIA requires that documents held by federal agencies generally be released to the public upon request. Following an appropriate request, agencies are required 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., David G. Swanson, 27 DOE ¶ 80,178 (1999); Butler, Vines and Babb, P.L.L.C., 25 DOE ¶ 80,152 (1995). In cases such as these, "[t]he issue is not whether any further responsive documents might conceivably exist but rather whether the government's search for responsive documents was inadequate." Perry v. Block, 684 F.2d 121, 128 (D.C. Cir. 1982) (emphasis in original).

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, 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). Furthermore, the determination of whether a search was reasonable is "dependent upon the circumstances of the case." Founding Church of Scientology v. National Security Agency, 610 F.2d 824, 834 (D.C. Cir. 1979).

In reviewing the present Appeal, we contacted the FOIA Office and ascertained that, except for the referral to the OIG to search for records pertaining to a specific complaint, DOE had not yet searched for documents that contain information about the Firm. For this reason, the FOIA Office has requested that this matter be remanded to it so that such a search may be conducted. See Memorandum of Telephone Conversation between Sheila Jeter, FOIA and Privacy Act Specialist, and Linda Lazarus (April 6, 2001). As this request is reasonable, this matter will be remanded to the FOIA Office to conduct a new search for records that contain information about the Firm.

B. Exemptions 6 and 7(C)

The Firm also challenges the fact that the OIG had redacted material from a copy of a completed OIG complaint form involving a DOE contractor pursuant to Exemptions 6 and 7 (C) of the FOIA. 5 U.S.C. § 552(b)(6), (7)(C). Before providing this document to the Firm, the OIG had redacted the names and other information that could identify certain contractor employees. See Memorandum of Telephone Conversation between Caroline Nielsen, OIG, and Linda Lazarus (April 23, 2001). These redactions are proper.

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). Exemption 7(C) allows an agency to withhold "records or information compiled for law enforcement purposes, if release of such law enforcement records or information . . . could reasonably be expected to constitute an unwarranted invasion of personal privacy. . . ." 5 U.S.C. § 552(b)(7)(C); 10 C.F.R. § 1004.10(b)(7)(iii).

In order to determine whether a record may be withheld under either Exemption 6 or 7(C), an agency must undertake a three-step analysis. First, the agency must determine whether or not a significant privacy interest would be compromised by the disclosure of the record. If no privacy interest is identified, the record may not be withheld pursuant to either of the exemptions. See Ripskis v. Department of Housing and Urban Dev., 746 F.2d 1, 3 (D.C. Cir. 1984) (Ripskis). Second, the agency must determine whether or not release of the document would further the public interest by shedding light on the operations and activities of the Government. See Reporters Committee for Freedom of the Press v. Department of Justice, 489 U.S. 749 (1989) (Reporters Committee). Finally, the agency must weigh the privacy interests it has identified against the public interest in order to determine whether release of the record either (1) would constitute a clearly unwarranted invasion of personal privacy (the Exemption 6 standard), or (2) could reasonably be expected to constitute an unwarranted invasion of personal privacy (the Exemption 7(C) standard). See generally Ripskis, 746 F.2d at 3; Stone v. FBI, 727 F. Supp. 662, 663-64 (D.D.C. 1990) .

We have previously considered cases in which both Exemption 6 and 7(C) were invoked, and we stated that in such cases, provided the Exemption 7 threshold requiring a valid law enforcement purpose is met, we would analyze the withholding only under Exemption 7(C), the broader of the two exemptions. See, e.g., K.D. Moseley, 22 DOE ¶ 80,124 (1992). Since, as discussed below, all of the documents involved here were compiled for law enforcement purposes, any document that satisfies Exemption 7(C)'s "reasonableness" standard may be protected. Conversely, documents not protected by Exemption 7(C) will be unable to satisfy Exemption 6's more restrictive requirement that they constitute a clearly unwarranted invasion of personal privacy.

The threshold test for withholding information under Exemption 7(C) is whether such information is compiled as part of or in connection with an agency law enforcement proceeding. FBI v. Abramson, 456 U.S. 615, 622 (1982). The scope of Exemption 7 encompasses enforcement of both civil and criminal statutes. Rural Housing Alliance v. Department of Agriculture, 498 F.2d 73, 81 & n.46 (D.C. Cir. 1974). By law, the OIG is charged with investigating waste, fraud, and abuse in programs and operations administered or financed by the DOE. 5 U.S.C. Appendix 3 § 4. The OIG is therefore a classic example of an organization with a clear law enforcement mandate. Ortiz v. Department of Health and Human Services, 70 F.3d 729, 732-33 (2d Cir. 1995). In the present case, the OIG documents were created during an investigation of possible irregularities in the procurement process and during the processing of a FOIA request. Consequently, the OIG documents at issue were created for a law enforcement purpose.

We find that there is a privacy interest here. Because of the obvious possibility of harassment, intimidation, or other personal intrusions, the courts have consistently recognized significant privacy interests in the identities of individuals whose names are contained in investigative files. Safecard Services, Inc. v. S.E.C., 926 F.2d 1197 (D.C. Cir. 1991); Cucarro v. Secretary of Labor, 770 F.2d 355, 359 (3d Cir. 1985). We have followed the courts' lead. James L. Schwab, 21 DOE 80,117 at 80,556 (1991); Lloyd R. Makey, 20 DOE 80,129 (1990). Therefore, we find that release of the individuals' identities or information that could identify these individuals would result in significant invasions of privacy.

In Reporters Committee, the Supreme Court narrowed the scope of the public interest in the context of the FOIA. The Court found that only information which contributes significantly to the public's understanding of the operations or activities of the Government is within the public interest as that term is used in the FOIA. Id. We fail to see how release of the identities of individuals in the present case would inform the public about the operations and activities of Government. Accordingly, we find that there is little or no public interest in disclosure of the individuals's identities or information that could identify these individuals.

After weighing the significant privacy interests present in this case against an insubstantial or non-existent public interest, we find that release of information revealing the individuals' identities would constitute a clearly unwarranted invasion of personal privacy. Accordingly, we find that information that would reveal the identities of the individuals were properly withheld under Exemptions 6 and 7(C). While we are strongly committed to keeping the public fully informed about DOE actions, we are also mindful of the need to preserve the privacy rights of individuals. By releasing the responsive document with only those redactions necessary to prevent identification of specific individuals, which is what has been done here, the agency can provide as much information as possible while safeguarding individual privacy rights.

C. Documents in the Firm’s Possession

The OIG did not provide the Firm with copies of two document based on the belief that the Firm already had copies of these documents in its possession. Although the Firm has these documents, the FOIA only permits the government to withhold documents when information is exempt from disclosure under the statute. Accordingly, we will remand this matter to the OIG with instructions to either provide these documents or issue a new determination that sets forth a justification for withholding these documents.

It Is Therefore Ordered That:

(1) The Freedom of Information Act Appeal filed by H & J Tool & Die Company, Incorporated, on March 12, and April 4, 2001 (Case Number VFA-0653) is hereby granted as set forth in paragraphs (2) and (3) below, and denied in all other respects.

(2) This matter is hereby remanded to the FOIA and Privacy Act Division of the Office of the Executive Secretariat for further action in accordance with this decision.

(3) This matter is hereby remanded to the Office of the Inspector General for further action in accordance with this decision.

(4) 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 situated, or in the District of Columbia.

George B. Breznay

Director

Office of Hearings and Appeals

Date: April 24, 2001

(1)On February 26, 2001, the Office of Hearings and Appeals (OHA) received an Appeal from the Firm. By letter dated February 28, 2001, OHA informed the Firm that its Appeal would not be considered as properly filed until OHA received a copy of the determination letter that was the subject of the Appeal. On March 12, 2001, OHA received a copy of this determination letter from the Firm.

(2)The Firm also appealed because the OIG had failed to make a determination about the releasability of a document which had originated in the Chicago Operations Office (Chicago). Instead of issuing a determination, the OIG had returned this document to Chicago and requested that Chicago send a determination directly to the Firm. Chicago is in the process of making a determination concerning the releasability of this document. See Memorandum of Telephone Conversation between Linda Rohde, FOIA and Privacy Act Officer, and Linda Lazarus (April 23, 2001). Although we will not consider this aspect of the Firm’s Appeal at this time, the Firm will have the opportunity to appeal Chicago’s determination after it has been issued.