Southern California Edison, Case No. VFA-0677, July 3, 2001

Case No. VFA-0677, 28 DOE ¶ 80,176

July 3, 2001

DECISION AND ORDER

OF THE DEPARTMENT OF ENERGY

Appeal

Name of Appellant: Southern California Edison

Date of Filing: June 13, 2001

Case Number: VFA-0677

On June 13, 2001, Southern California Edison (the Appellant) filed an Appeal from a final determination issued on May 14, 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 21, 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. This Appeal, if granted, would require BPA to release additional information to the Appellant.

This Appeal arises out of a contract dispute between the Appellant and BPA. On March 21, 2001, the Appellant filed a twelve-part request for information with BPA. On May 14, 2001, BPA issued a determination letter indicating that it was releasing several responsive documents to the Appellant. On June 13, 2001, the Appellant submitted the present Appeal in which it challenges the adequacy of BPA's determinations. (1) Specifically, the Appellant notes that although a substantial amount of information has been redacted from the documents released to it by BPA, the determination letter neither attempts to justify these redactions nor even acknowledges that BPA has withheld any information. (2)

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 statute requires that 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 provide the requester with an opportunity to appeal any adverse determination. Id.

A written determination letter informs 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 searches, (2) clearly indicate which information was withheld, and (3) specify the exemption(s) under which information was withheld. Research Information Services, Inc., 26 DOE ¶ 80,139 (1996); Burlin McKinney, 25 DOE ¶ 80,205 at 80,767 (1996). Without an adequately informative determination letter, the requester and the review authority must speculate about the appropriateness of the agency’s determinations. Id.

In the present case, it is clear that BPA’s determination is not adequate. Information has been redacted from responsive documents without any explanation or justification. Accordingly, we are remanding this Appeal to BPA. On remand, BPA must either release the information it redacted or issue a new determination letter which explains and justifies its withholdings in accordance with the requirements set forth above.

It Is Therefore Ordered That:

(1) The Appeal filed by Southern California Edison, Case No. VFA-0677, 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: July 3, 2001

(1)The Appeal was based upon two separate determinations regarding two different FOIA requests. Accordingly, we have split the Appeal into two separate Appeals. Those issues arising from the determination letter issued on May 14, 2001, which responded to a request filed on March 21, 2001, will continue to be adjudicated under Case Number VFA-0677. Those issues arising from the determination letter issued on June 4, 2001, which responded to a request filed on April 21, 2001, will be adjudicated under Case Number VFA-0678.

(2)The Appellant also notes, correctly, that the determination letter fails to inform it of its appeal rights as required by 10 C.F.R. § 1004.7. Since the Appellant was able to file a valid appeal in a timely manner, despite this omission, BPA’s error was harmless in this instance.