Case No. VFA-0674, 28 DOE ¶ 80,173

June 20, 2001

DECISION AND ORDER

OF THE DEPARTMENT OF ENERGY

Appeal

Name of Appellant: Southern California Edison

Date of Filing: May 22, 2001

Case Number: VFA-0674

On May 22, 2001, Southern California Edison (the Appellant) filed an Appeal from a final determination issued on April 26, 2001 by the Department of Energy’s Bonneville Power Administration (BPA). In that determination, BPA, responded to a Request for Information filed by the Appellant on March 7, 2001 under the Freedom of Information Act (FOIA), 5 U.S.C. § 552(b), as implemented by the DOE in 10 C.F.R. Part 1004. BPA’s determination released several responsive documents to the Appellant and withheld two documents. This Appeal, if granted, would require BPA to release the withheld information and to conduct an additional search for responsive documents.

I. BACKGROUND

This Appeal arises out of a contract dispute between the Appellant and the BPA. On March 7, 2001, the Appellant filed an eight-part request for information with BPA. On April 26, 2001, BPA issued a determination letter indicating that it was releasing several responsive documents and withholding two responsive documents under Exemption 5 of the FOIA. BPA also indicated that it did not have any documents that were responsive to three of the eight parts of the Appellant’s request. The present Appeal challenges the adequacy of BPA's search and its withholdings under Exemption 5.

II. ANALYSIS

The FOIA generally requires that records held by federal agencies be released to the public upon request. 5 U.S.C. § 552(a)(3). However, the FOIA lists nine exemptions that set forth the types of information that an agency may withhold. 5 U.S.C. § 552(b)(1)-(9); 10 C.F.R. § 1004.10(b)(1)-(9). These nine exemptions must be narrowly construed. Church of Scientology of California v. Department of the Army, 611 F.2d 738, 742 (9th Cir. 1980) (citing Bristol-Meyers Co. v. FTC, 424 F.2d. 935 (D.C. Cir.), cert. denied, 400 U.S. 824 (1970)). “An agency seeking to withhold information under an exemption to FOIA has the burden of proving that the information falls under the claimed exemption.” Lewis v. IRS, 823 F.2d 375, 378 (9th Cir. 1987). It is well settled that the agency’s burden of justification is substantial. Coastal States Gas Corp. v. Department of Energy, 617 F.2d 854, 861 (D.C. Cir. 1980) (Coastal States). The only exemption that BPA claims in the present case is found at 5 U.S.C. § 552(b)(5) (Exemption 5).

Exemption 5

BPA withheld two documents in their entirety under Exemption 5: (1) an e-mail message sent by Timothy R. Smith to Claire Hobson on August 23, 2000 (Document 1), and (2) an e-mail message sent by Timothy R. Smith to four BPA employees on August 25, 2000 (Document 2).

Exemption 5 of the FOIA exempts from mandatory disclosure documents that 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 Exemption 5 incorporates those “privileges which the Government enjoys under the relevant statutory and case law in the pre-trial discovery context.” Renegotiation Board v. Grumman Aircraft Engineering Corp., 421 U.S. 168, 184 (1975); see also NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 149 (1975) (Sears).

The Deliberative Process Privilege

The determination letter indicates that BPA has withheld both documents under the deliberative process privilege. It is well settled that the deliberative process privilege is among the privileges that fall under Exemption 5. Coastal States, 617 F.2d at 862.

The deliberative process privilege permits the government to withhold documents that reflect advisory opinions, recommendations, and deliberations comprising part of the process by which government formulates decisions and policies. Sears, 421 U.S. at 150. The purpose of the privilege is to protect the quality of agency decisions by promoting frank and independent discussion among those responsible for making governmental decisions. Sears, 421 U.S. at 151. See EPA v. Mink, 410 U.S. 73, 87 (1973) (citing Kaiser Aluminum & Chem. Corp. v. United States, 157 F. Supp. 939, 946 (Ct. Cl. 1958)) (Mink).

In order for the deliberative process to shield a document, it must be both pre-decisional, 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 Appellant claims that the deliberate process privilege does not apply to either of the two documents withheld by BPA. In support of this contention, the Appellant correctly notes that in order to be protected under the deliberative process privilege, information must be generated prior to the adoption of an agency’s policy or decision. However, both documents, which consist of the author’s opinions of how BPA should respond to a written inquiry submitted by the Appellant on August 18, 2000 (the August 18, 2000 inquiry), were generated as part of the agency’s deliberations about its proper response to the August 18, 2000 inquiry. Accordingly, we find that both documents can be withheld under Exemption 5's deliberative process privilege.

The Attorney-Client Privilege

BPA withheld Document 2, an e-mail message sent by Timothy R. Smith to four BPA employees on August 25, 2000, under the attorney-client privilege as well as the deliberative process privilege. The attorney-client privilege exists to protect confidential communications between attorneys and their clients made for the purpose of securing or providing legal advice. In Re Grand Jury Proceedings 88-9 (MIA), 899 F.2d 1039 (11th Cir. 1990); In Re Grand Jury Subpoena of Slaughter, 694 F.2d 1258, 1260 (11th Cir. 1982); 8 J. Wigmore, Evidence, § 2291, p. 590 (McNaughton Rev. Ed. 1961); McCormack, Law of Evidence, Sec. 87, p.175 (2nd ed. E. Cleary 1972). Not all communications between attorney and client are privileged, however. Clark v. American Commerce National Bank, 974 F.2d 127 (9th Cir. 1992) (Clark). The courts have limited the protection of the privilege to those disclosures necessary to obtain or provide legal advice. Fisher v. United States, 96 S. Ct. 1569, 1577 (1976) (Fisher). In other words, the privilege does not extend to social, informational, or procedural communications between attorney and client.

The Appellant claims that Document 2 cannot be withheld under the attorney-client privilege. This e-mail message proposes a course of action in response to a letter to BPA from the Appellant. One of the recipients of the message was a BPA attorney. It is clear from the context of the e-mail message that its author was soliciting legal advice from that BPA attorney (as well as comments from the other three recipients). This e-mail message was clearly a confidential communication between an attorney and his client made for the purpose of obtaining legal advice. Accordingly, this document is protected by the attorney-client privilege.

The Public Interest

The DOE regulations provide that the DOE should 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. Accordingly, even if a document can properly be withheld under Exemption 5, we must consider whether the public interest nevertheless demands disclosure pursuant to 10 C.F.R. § 1004.1. In applying this regulation, we note that the Department of Justice has adopted a "foreseeable harm" standard for defending FOIA exemptions. Memorandum from the Attorney General to Heads of Departments and Agencies, Subject: The Freedom of Information Act (October 4, 1993) (Reno Memorandum). The Reno Memorandum indicates that whether or not there is a legally correct application of an exemption, it is the policy of the Department of Justice to 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. See Reno Memorandum at 1, 2.

BPA’s determination does not indicate that it considered the public interest in disclosing this information. Accordingly, we are remanding the portion of the Appeal withholding the two e-mail messages to the BPA. On remand, BPA must either release these two documents or issue a new determination indicating that release of these documents would not be in the public interest.

B. Adequacy of the Search

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., Eugene Maples, 23 DOE ¶ 80,106 (1993); Native Americans for a Clean Environment, 23 DOE ¶ 80,149 (1993). 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 (D.C. Cir. 1983), 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).

The Appellant asserts that the BPA’s search for responsive documents was flawed in a number of aspects. First, the Appellant indicates that one of the documents released to it by BPA, the December 21, 2000 Federal Columbia River Power System Biological Opinion, is not responsive to its request. The Appellant asserts that BPA should have instead released the May 2000 Federal Columbia River Power System Biological Opinion to it. BPA indicates that it apparently misunderstood that Appellant’s request and is willing to conduct a further search for the May 2000 Federal Columbia River Power System Biological Opinion. Accordingly, we are remanding this portion of the Appeal to BPA. On remand, BPA shall conduct a further search for the May 2000 Federal Columbia River Power System Biological Opinion and shall then either release this document to the Appellant or issue a new determination letter justifying its withholding.

The Appellant further asserts that it was provided with an incomplete copy of one responsive document. Apparently, the Appellant received pages 2 though 10 of this document, which it describes as “Convert Last Years.” BPA indicates that it cannot identify any document entitled (or described as) Convert Last Years among the documents it released to the Appellant in response to the present request. Resolution of this situation will require BPA to consult with the Appellant. Accordingly, we are remanding this portion of the Appeal to BPA. On remand, BPA shall consult with the Appellant in order to identify the document the Appellant has described as Convert Last Years.

The Appellant also claims that it “requires definitions of the terms, rows, and columns on the chart contained [in the Convert Last Years document].” Appeal at Page 2. However, it is well settled that the FOIA does not require agencies to either create a document that does not already exist in order to satisfy FOIA requests or to answer questions directed at them by requesters. See 10 C.F.R. § 1004.4(d). Instead, the FOIA is limited to requiring the "disclosure of certain documents which the law requires the agency to prepare or which the agency has decided for its own reasons to create." NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 162 (1975); see also Renegotiation Bd. v. Grumman Aircraft Eng'g Corp., 421 U.S. 168, 192 (1975); Yeager v. Drug Enforcement Administration, 678 F.2d 315 (D.C. Cir. 1982).

The Appellant also contends that BPA failed to correctly interpret a part of its request. Part 5 of the Appellant’s request sought:

All documents that evidence, support, or refer to the representation contained in the December 19, 2000, letter of Mr. Stephen R. Oliver to all BPA Pacific Northwest Regional Customers showing that BPA determined it had sufficient surplus power for the August 1, 2000 to July 31, 200[1] operating year.

Request at 2 (emphasis supplied). BPA’s determination letter responded to this request in the following manner:

No such records exist. Contrary to the characterization in [the Appellant’s] request, Mr. Oliver’s letter does not in any way represent that BPA had sufficient surplus power for any operating year. It provided information only regarding the available authority for marketing Excess Federal power pursuant to 16 U.S.C. § 832m(b). That being the case, there are no documents that would be responsive to this request.

Determination Letter at 3. The Appeal claims that the Request sought “all documents ?that evidence, support or refer’ to the representations made in the letter.” Appeal at page 3 (emphasis supplied). It is clear that the Request sought those documents that support a specific alleged representation, while the Appeal claims that it sought any documents supporting any representation made in Mr. Oliver’s letter. The Appeal is therefore attempting to broaden the scope of the Request. It is well settled that we do not permit FOIA appellants to broaden their requests for information in their appeals. See, e.g., Alan J. White, 17 DOE ¶ 80,117 at 80,539 (1988); see also Arthur Scala, 13 DOE ¶ 80,133 at 80,622 n.2 (1986). Since the Appellant now wishes to obtain information of a broader nature than that which it sought initially, its broadened request is a new request for information. The Appellant should therefore file a new request for information with the BPA in order to obtain the information it is seeking.

III. CONCLUSION

We are remanding a portion of the present Appeal to BPA. On remand, BPA shall: either release all or part of the withheld e-mail messages or issue a new determination letter indicating that releasing this information would not be in the public interest, consult with the Appellant as indicated above, and conduct a further search for the May 2000 Federal Columbia River Power System Biological Opinion and then either release this document to the Appellant or issue a new determination letter justifying its withholding..

It Is Therefore Ordered That:

(1) The Appeal filed by Southern California Edison, Case No. VFA-0674, is hereby granted as specified in Paragraph (2) below and denied in all other aspects.

(2) This matter is hereby remanded to the Bonneville Power Administration, 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 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: June 20, 2001