Case No. VFA-0663, 28 DOE ¶ 80,167

April 30, 2001

DECISION AND ORDER

OF THE DEPARTMENT OF ENERGY

Appeal

Name of Petitioner: International Consulting Services

Date of Filing: March 23, 2001

Case Number: VFA-0663

On March 23, 2001, International Consulting Services (ICS) filed an Appeal from a determination issued to it on March 2, 2001, by the National Energy Technology Laboratory (NETL) of the Department of Energy (DOE). That determination concerned a request for information that ICS 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, NETL would be ordered to release the requested information or to issue a new determination.

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

ICS filed a FOIA request seeking information regarding the Ultra Clean Fuels solicitations and the proposals submitted in response to the solicitation. In its March 2, 2001 determination letter, NETL identified a number of documents responsive to ICS’s request. However, NETL withheld portions of this information pursuant to Exemption 4 of the FOIA. See March 2, 2001 Determination Letter.

On March 23, 2001, ICS filed the present Appeal with the Office of Hearings and Appeals (OHA). In its Appeal, ICS challenges NETL’s withholding of information it believes is non-proprietary. Specifically, ICS asserts that NETL should redact material not specifically found to be proprietary under Exemption 4. ICS asks that the OHA direct NETL to release the withheld information.

II. Analysis

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. After conducting a search for responsive documents under the FOIA, the agency must provide the requester with a written determination notifying the requester of the results of that search, and if applicable, of the agency’s intentions to withhold any of the responsive information under one or more of the nine statutory exemptions to the FOIA. 5 U.S.C. § 552(a)(6)(A)(i). The statute further requires that the agency inform the requester of its right “to appeal to the head of the agency any adverse determination.” Id.

The written determination letter serves to inform the requester of the results of the agency’s search for responsive documents and of any withholdings that the agency intends to make. In doing so, the determination letter allows the requester to decide whether the agency’s response to its request was adequate and proper and provides this office with a record upon which to base its consideration of an administrative appeal.

It therefore follows that the agency has an obligation to ensure that its determination letters (1) adequately describe the results of the searches, (2) clearly indicate which information was withheld, and (3) specify any exemption under which information was withheld. Burlin McKinney, 25 DOE ¶ 80,205 at 80,797 (1996). It is well established that a FOIA determination must contain a reasonably specific justification for withholding material pursuant to a FOIA request. See Deborah L. Abrahamson, 23 DOE ¶ 80,147 (1993). A specific justification is necessary to allow this Office to perform an effective review of the initial agency determination and to permit the requesting party to prepare a reasoned appeal. Without an adequately informative determination letter, the requester and the review authority must speculate about the adequacy and appropriateness of the agency’s determinations. Id. In addition, the FOIA requires the agency to provide to the requester any reasonably segregable portion of a record after deletion of the portions that are exempt. See 5 U.S.C. § 552(b). See also FAS Engineering Inc., 27 DOE ¶ 80,131 (1998), quoting Soucie v. David, 448 F.2d 1067, 1077 (D.C. Cir. 1971) (factual material must be disclosed unless inextricably intertwined with exempt material).

In the present case, NETL withheld responsive information under Exemption 4 of the FOIA. We note that there does not appear to have been any attempt to segregate and release any non-exempt information from exempt information in any of the withheld information. Until NETL attempts to segregate non-exempt information for release, we will not consider the applicability of Exemption 4 to any of the withheld information. Accordingly, we shall remand this matter NETL either to release to ICS all of the information responsive to its request or to segregate and release any non- exempt information and issue a new determination adequately supporting the withholding of the information it does not release. If a new determination is issued, NETL should include a statement of the reason for denial, a specific explanation of how the exemption applies to the information withheld and a statement why discretionary release is not appropriate. See 10 C.F.R. § 1004.7(b)(1).

It Is Therefore Ordered That:

(1) The Appeal filed by International Consulting Services, OHA Case No. VFA-0663, on March 23, 2001, is hereby granted in part as set forth below in Paragraph (2) and denied in all other respects.

(2) This matter is hereby remanded to the National Energy Technology Laboratory of the Department of Energy, which shall either release the responsive information withheld in its March 2, 2001 determination or 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 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 30, 2001