Case No. VFA-0655, 28 DOE ¶ 80,160

April 11, 2001

DECISION AND ORDER

OF THE DEPARTMENT OF ENERGY

Appeal

Name of Petitioner: Nevada Nuclear Waste Task Force, Inc.

Date of Filing: March 12, 2001

Case Number: VFA-0655

On March 12, 2001, Nevada Nuclear Waste Task Force, Inc. (Nevada) filed an Appeal from a determination issued to it on February 5, 2001, by the Office of Civilian Radioactive Waste Management (OCR) of the Department of Energy. That determination concerned a request for information that Nevada submitted pursuant to the Freedom of Information Act (FOIA), 5 U.S.C. § 552, as implemented by the DOE in 10 C.F.R. Part 1004. If the present Appeal were granted, OCR would be ordered to release the requested information.

The FOIA requires that documents held by federal agencies generally be released to the public upon request. The FOIA, however, lists nine exemptions that set forth the types of information which may be withheld at the discretion of an agency. 5 U.S.C. § 552(b); 10 C.F.R. § 1004.10(b). The DOE regulations further provide that a document exempt from mandatory disclosure under the FOIA shall nonetheless be released to the public whenever the DOE determines that disclosure is in the public interest. 10 C.F.R. § 1004.1.

I. Background

On December 18, 2000, Nevada filed a FOIA request seeking a copy of all comments received from reviewers of the Site Recommendation Consideration Report Overview. See Appeal Letter at 1. In its February 5, 2001 determination letter, OCR stated that it withheld the requested comments in their entirety pursuant to Exemption 5 of the FOIA. The Determination Letter further stated that the documents requested involve communications that are predecisional and are part of a deliberative process “in that they involve recommendations and opinions on policy matters relating to the consideration of the Yucca Mountain site under the Nuclear Waste Policy Act.” See Determination Letter at 1. The Determination Letter also concluded that releasing the requested comments would likely stifle honest and frank communication within the agency. Id. at 1.

On March 12, 2001, Nevada filed the present Appeal with the Office of Hearings and Appeals (OHA). In its Appeal, Nevada asserts that OCR’s application of Exemption 5 to the requested comments was too broad. See Appeal Letter at 1. Specifically, it argues that OCR should have only withheld information that is specifically deliberative in nature and released “all other information

. . . that is not specifically deliberative, such as background information, facts, figures, sender and receiver information, dates, times and other information.” Nevada further asserts that release of this information is in the public interest. Id. For these reasons, Nevada requests that the OHA direct OCR to release the requested information.

II. Analysis

Exemption 5 of the FOIA exempts from mandatory disclosure documents which are "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). The Supreme Court has held that 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). The courts have identified three traditional privileges that fall under this definition of exclusion: the attorney-client privilege, the attorney work-product privilege, and the executive "deliberative process" or "predecisional" privilege. Coastal States Gas Corporation v. Department of Energy, 617 F.2d 854, 862 (D.C. Cir. 1980) (Coastal States). In withholding the reviewers’ comments, Nevada relied upon the "deliberative process" privilege of Exemption 5.

The "deliberative process" privilege of Exemption 5 permits the government to withhold documents 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) (quoting Kaiser Aluminum & Chem. Corp. v. United States, 157 F. Supp. 939 (Cl. Ct. 1958)) (Mink). The ultimate purpose of the exemption is to protect the quality of agency decisions. Sears, 421 U.S. at 151.

In order to be shielded by Exemption 5, a document 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 exemption thus covers documents that reflect, among other things, the personal opinion of the writer rather than the final policy of the agency. Id. Even then, however, the exemption only covers the subjective, deliberative portion of the document. Mink, 410 U.S. at 87-91. An agency must disclose factual information contained in the protected document unless the factual material is “inextricably intertwined” with the exempt material. Soucie v. David, 448 F.2d 1067, 1077 (D.C. Cir. 1971).

The records at issue are reviewers’ comments to a draft of an overview of a Site Recommendation Consideration Report. The reviewers were DOE and contractor employees who were responsible for rendering comments on the substance, style and tone of the draft Report. (1) Given the facts presented to us, we find that the requested comments are intra-agency, pre-decisional and part of the deliberative process. It is well settled that draft documents, by their very nature, are pre-decisional and deliberative. This category of documents has been afforded Exemption 5 protection because draft documents typically reflect “tentative views which might be altered or rejected upon further deliberation by the authors or by their superiors.” Coastal States, 617 F.2d at 866; Committee to Bridge the Gap, 20 DOE ¶ 80,127 (1990). Consequently, we have determined that Exemption 5 was properly applied to the information at issue. In addition, after a thorough review of the comments at issue, we find that the factual material requested by Nevada in its Appeal is inextricably intertwined with the exempt material, and thus properly withheld.

III. Public Interest Determination

The DOE regulations provide that the DOE shall release to the public material exempt from mandatory disclosure under the FOIA if the DOE determines that federal law permits disclosure and it is in the public interest. 10 C.F.R. § 1004.1. Notwithstanding our finding that OCR properly applied Exemption 5 to the reviewers’ comments in this case, we must consider whether the public interest nevertheless requires disclosure pursuant to 10 C.F.R. § 1004.1. In applying this regulation, we note that the Department of Justice has reviewed its administration of the FOIA and adopted a “foreseeable harm” standard for defending FOIA exemptions. See Memorandum from Janet Reno, Attorney General, to Heads of Departments and Agencies (October 4, 1993) (stating that the Department of Justice will defend the assertion of a FOIA exemption only in those cases where the agency articulates a reasonably foreseeable harm to an interest protected by that exemption).

In the present case, the requested information consists of reviewers’ comments made by DOE and contractor officials which were submitted in response to a draft of an overview of a report. The release of this information would in our opinion have a chilling effect on the willingness of OCR officials to make recommendations or voice opinions regarding highly sensitive and controversial issues. Employees and managers would be less likely to communicate their recommendations on this and similar issues if they knew or suspected that an agency would release their opinions to the public. OCR officials have stated that, and we agree, the release of the requested information would result in a foreseeable harm in that the candor of future agency deliberations would be substantially diminished. Consequently, we find that this harm satisfies the reasonably foreseeable harm standard that the Attorney General articulated and that the release of the material contained in the requested information and protected pursuant to Exemption 5 would not be in the public interest. See Dennis Kirson, 26 DOE ¶ 80,225(1997).

It Is Therefore Ordered That:

(1) The Appeal filed by Nevada Nuclear Task Force, Inc., on March 12, 2001, Case Number VFA- 0655, 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: April 11, 2001

(1)It is well settled that many documents generated outside of agencies are withholdable under the deliberative process privilege. In order to determine whether documents generated outside of agencies are part of the deliberative process, the courts have employed a functional test. Under this functional approach, opinions and recommendations generated by outside consultants are considered part of the deliberative process if they were created pursuant to agency initiative in order to assist the agency in its decision making. See Nuclear Control Institute, 27 DOE ¶ 80,128 at 80,565 (1998) (citing Formaldehyde Institute. V. HHS, 889 F.2d 1118, 1123 (D.C. Cir. 1989)). In this case, contractor officials have been made part of the deliberative process.