R. E. V. Eng. Services, Case No. VFA-0654, March 28, 2001

Case No. VFA-0654, 28 DOE ¶ 80,156

March 28, 2001

DECISION AND ORDER

OF THE DEPARTMENT OF ENERGY

Appeal

Name of Petitioner: R. E. V. Eng. Services

Date of Filing: March 1, 2001

Case Number: VFA-0654

On March 1, 2001, David Ridenour (Ridenour) of R. E. V. Eng. Services (REV) filed an Appeal from a determination issued to him in response to a request for documents that REV submitted under the Freedom of Information Act (FOIA), 5 U.S.C. § 552, as implemented by the Department of Energy (DOE) in 10 C.F.R. Part 1004. The determination was issued on February 20, 2001, by the DOE’s Rocky Flats Field Office (RFFO). This Appeal, if granted, would require that RFFO release additional responsive information to REV or provide a detailed explanation of its reasons for withholding such material.

I. Background

In a previous case, Ridenour had appealed RFFO’s determination withholding certain information under the FOIA. See R.E.V. Eng. Services, 28 DOE ¶ 80,116 (2000). In that decision, the Office of Hearings and Appeals (OHA) granted the Appeal and remanded the matter to RFFO to perform another review of the documents responsive to Ridenour’s request. Id. After a further review, RFFO released two documents in their entirety but continued to withhold portions of five documents. Letter from RFFO to Ridenour (February 20, 2001) (Determination). According to RFFO, those documents were exempt from disclosure under Exemption 5 of the FOIA.

In this Appeal, Ridenour contends that RFFO did not properly establish the applicability of Exemption 5 to any of the redacted documents. Letter from Ridenour to Director, OHA (March 1, 2001) (Appeal). He further alleges that RFFO did not specify the role played by each withheld document in the deliberative process, thus making it impossible for him to understand the basis for the withholding. Appeal at 1. Ridenour asks that OHA remand this issue to RFFO with direction to release the withheld documents in their entirety or to provide a clear and understandable document-by-document reason for withholding the material. Appeal at 2.

II. Analysis

The Deliberative Process Privilege

Exemption 5 permits the withholding of responsive material that reflects advisory opinions, recommendations, and deliberations comprising part of the process by which government decisions and policies are formulated. NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 149 (1974) (Sears). 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 Gas Corp. v. Department of Energy, 617 F.2d 854, 856 (D.C. Cir. 1980). This privilege covers records that reflect the personal opinion of the writer rather than final agency policy. Id. Consequently, the privilege does not generally protect records containing purely factual matters.

This office has previously reviewed the five documents in question, and we stated at that time that portions of those documents were properly withheld under Exemption 5. See R.E.V. Eng Services, 28 DOE ¶ 80,116 (2000) (R.E.V. Eng). We also found that the documents contained some factual information. However, the issue currently under appeal is whether RFFO has provided the necessary information for Ridenour to understand RFFO’s basis for withholding material under Exemption 5. We find that it has not.

A document must be described with enough specificity to allow the requester (1) to ascertain whether the claimed exemptions reasonably apply to the documents and (2) to formulate a meaningful appeal. See R.E.V. Eng., 28 DOE at 80,543; Paul W. Fox, 25 DOE ¶ 80,150 at 80,622 (1005), citing James L. Schwab, 22 DOE ¶ 80,164 (1992); Harold Fine, 17 DOE ¶ 80,136 at 80,588 (1988); Arnold & Porter, 12 DOE ¶ 80,108 at 80,527 (1984). Generally, a description is adequate if each document is identified by a brief description of the subject matter it discusses and, if available, the date upon which the document was produced and its authors and recipients. The description need not contain information that would compromise the privileged nature of the document. R.E.V. Eng., 28 DOE at 80,543; Arnold & Porter, 12 DOE at 80,527.

We find that RFFO has adequately described the withheld documents. The following two descriptions are representative of the descriptions of the six documents:

1) Status Sheet, which contains documented conversations, telephone calls and electronic mail concerning Ms. Charlene Pazar’s FOIA Request No. RF97-038.

2) Electronic message, dated 10/27/97, from Mary Hammack to Jeremy Karpatkin, Communications and Economic Development, RFFO, subject: FOIA request in OCC for Concurrence.

Determination at 2. RFFO has adequately identified the subject matter, date, author and recipient of the documents.

However, a determination must also adequately justify the withholding of a document by explaining briefly how the claimed exemption applies to the document. Arnold & Porter, 12 DOE at 80,527; Paul W. Fox, 25 DOE at 80,622. The determination in this case contains no explanations of how the deliberative process privilege applies to each document. RFFO wrote in the determination:

The deleted portions of the . . . five documents contain deliberative information which is exempt from mandatory disclosure under the provisions of the FOIA. Portions of the five documents contain[ing] frank and independent discussion and/or recommendatory in nature are, therefore, deliberative process documents. The deliberative process privilege of Exemption 5 protects from disclosure materials that reflect the personal opinions, analyses, or recommendations of those individuals involved. The factors that are weighed to determine whether documents are protected by the deliberative process privilege include: (1) whether the documents are “deliberative” (i.e., whether it reflects the give-and-take of a consultative process); (2) whether the documents are so candid or personal in nature that public disclosure would stifle honest and frank communication in the future; and (3) whether the documents are recommendatory of what will become a final document.

The DOE regulations provide that documents exempt from mandatory disclosure under the FOIA shall be released, regardless of their exempt status, unless the DOE determines that disclosure is contrary to public interest. For the reasons described above, I have determined that release of those portions of the five documents is not in the public interest.

Determination at 2.

The paragraphs quoted above do not explain how Exemption 5 applies to the specific documents withheld from Ridenour. Rather, RFFO has merely restated the applicable law without explaining how that law applies to the withheld information. See Animal Legal Defense Fund v. Department of Air Force, 44 F. Supp. 2d 295 (D.D.C. 1999) (stating that the need to describe each withheld document under Exemption 5 is particularly acute because the deliberative process privilege depends on the document and its role in the administrative process); Senate of the Commonwealth of Puerto Rico v. Department of Justice, 823 F.2d 574, 585-86 (D.C. Cir. 1987). (1)

We find that RFFO has not provided the necessary information for the requester to understand RFFO’s basis for withholding material under Exemption 5. Accordingly, this Appeal is granted. We remand this matter to RFFO to provide an explanation of how the deliberative process privilege applies to each of the five withheld documents. This explanation should set forth the deliberative process involved and the role that the withheld material played in that process.

It Is Therefore Ordered That:

(1) The Freedom of Information Act Appeal filed by R.E.V. Eng. Services December 26, 2000, OHA Case Number VFA-0642, is hereby granted as set forth in Paragraph (2) below.

(2) This matter is hereby remanded to the Rocky Flats Field Office of the Department of Energy, which shall issue a new determination in accordance with the instructions set forth above.

(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 situated, or in the District of Columbia.

George B. Breznay

Director

Office of Hearings and Appeals

Date: March 28, 2001

(1)RFFO also makes a conclusory assertion that release of the material is not in the public interest. Determination at 2. Even though this statement is also inadequate, we note that the requester has not presented any evidence that release of the withheld information is in the public interest.