Government Accountability Project , Case No. VFA-0690, October 5, 2001

Case No. VFA-0690

October 5, 2001

DECISION AND ORDER

OF THE DEPARTMENT OF ENERGY

Appeal

Name of Petitioner: Government Accountability Project

Date of Filing: August 17, 2001

Case Number: VFA-0690

On August 17, 2001, Government Accountability Project (GAP) filed an Appeal from a determination that the Idaho Operations Office of the Department of Energy (DOE/ID) issued in response to a request for documents that GAP submitted under the Freedom of Information Act (FOIA), 5 U.S.C. § 552, as implemented by DOE in 10 C.F.R. Part 1004. DOE/ID issued the determination on July 9, 2001. This Appeal, if granted, would require that DOE/ID release additional responsive information to GAP or provide a detailed explanation of its reasons for withholding such material.

I. Background

GAP is a non-profit organization that represents whistleblowers in legal matters. The group represents Clinton Jensen, an employee of Bechtel BWXT Idaho, a DOE/ID contractor. Mr. Jensen filed a whistleblower complaint (also called an “employee concern”) against his employer. On September 1, 2000, GAP sent a FOIA request to DOE/ID for:

Any and all records related to or generated in connection with any and all investigations, inquiries, audits, and/or requests for information regarding allegations made by Mr. Clinton Jensen, an employee of Bechtel BWXT Idaho at the Idaho National Engineering and Environmental Laboratory (INEEL).

Any and all personnel, security, human resources, and/or other records retrievable by reference to Mr. Jensen’s name, employee number or other unique identifying characteristic, whether in possession or control of the contractor or the government.

Letter from GAP to DOE/ID (September 1, 2000). On July 15, 2001, DOE/ID sent GAP a partial response in which the agency identified a total of 172 responsive documents: 60 were released in full and 112 were partially or entirely withheld under Exemptions 5 and 6. Letter from DOE/ID to GAP (July 15, 2001) (Determination). DOE/ID also explained that its delay in response was due to the volume and complexity of GAP’s request, and that a contractor had additional responsive information that had not yet been sent to DOE for processing. DOE/ID forwarded additional documents to the DOE Headquarters FOIA office for review and a release determination. Id. Finally, DOE/ID informed GAP that it also withheld “handwritten personal notes of a DOE employee” because the agency did not consider those notes to be agency records. Id. at 2. In response, GAP filed this Appeal. Letter from GAP to OHA (August 17, 2001) (Appeal).
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)). Nonetheless, DOE regulations provide that the agency should release to the public material exempt from mandatory disclosure under the FOIA if the DOE determines that federal law permits disclosure and if disclosure is in the public interest. 10 C.F.R. § 1004.1. Accordingly, even if a document can properly be withheld under an exemption, we must also consider whether the public interest demands disclosure pursuant to DOE regulations.

A. Agency Records

Under the FOIA, an agency record is a document that (1) is either created or obtained by an agency, and (2) is under agency control at the time of the FOIA request. Tri-Valley CAREs, 27 DOE ¶ 80,260 (2000) (Tri-Valley) (citing Department of Justice v. Tax Analysts, 492 U.S. 136, 144-45 (1989). Clear indications that a document is an “agency record” are when a document of this type is part of an agency file, and the document was used for an agency purpose. Kissinger v. Committee for Freedom of the Press, 445 U.S. 136, 157 (1980); Bureau of National Affairs v. Department of Justice, 742 F.2d 1484, 1489-90 (D.C. Cir. 1984) (BNA). In making the “agency records” determination, we look at the totality of circumstances surrounding the creation, maintenance and use of the documents in question. BNA, 742 F.2d at 1492-93.

GAP contends that DOE/ID improperly withheld the handwritten personal notes of a DOE employee because of an unfounded decision that the records were not agency records and thus not subject to FOIA. Appeal at 5. GAP alleges that the notes should have been released because their description (notes regarding the investigation of the employee concern) reveals that they are responsive to the FOIA request. Id. GAP further states that DOE/ID did not name the author of the notes, where the notes were found, or the agency’s criteria for stating that they are not agency records. Id. at 5. We agree that DOE/ID did not reveal the author or location of the notes, but find that the agency did state its criteria for deciding that the notes were not agency records. According to the determination letter, the notes were not distributed to anyone--they were retained by the individual who wrote them, and they did not become part of an official DOE file. Determination at 2. Ethyl Corp. v. U.S. Environmental Protection Agency, 25 F.23d 1241, 1247 n.3 (4th Cir. 1994) sets forth criteria that the Department of Justice suggests an agency use to determine if personal records responsive to a FOIA request can be considered agency records. We find that DOE/ID properly applied several of these factors, such as the purpose, distribution, and location of the personal records. Determination at 2. Thus, we find that the notes are not agency records and are not subject to disclosure under FOIA.

B. Exemption 5

1. Attorney-Client Privilege

GAP appeals the withholding of the following three documents under the attorney-client privilege of FOIA Exemption 5: Document 158 (Draft Scope of Work); Document 163 (SMC Employee Concern); and Document 167 (Senate Gas Diffusion Plant Testimony). Appeal at 5. The attorney- client privilege exists to protect confidential communications between attorneys and their clients made for the purpose of securing or providing legal advice. Mead Data Central, Inc. v. Department of Air Force, 566 F.2d 242, 252 (D.C. Cir. 1977) (Mead); California Edison, 28 DOE ¶ 80,173 (2001) (California Edison). The privilege covers facts divulged by a client to his or her attorney, and also covers opinions that the attorney gives the client based upon those facts. Mead, 566 F.2d at 254 n.25. The privilege permits nondisclosure of an attorney’s opinion or advice in order to protect the secrecy of the underlying facts. Id. at 254 n.28. Not all communications between an attorney and client are privileged, however. Clark v. American Commerce National Bank, 974 F.2d 127 (9th Cir. 1992). The privilege is limited to those disclosures necessary to obtain or provide legal advice. Fisher v. United States, 96 S.Ct. 1569, 1577 (1976). The privilege does not extend to social, informational, or procedural communications between attorney and client. California Edison, 28 DOE at 80,665. GAP has appealed this withholding because it contends that the electronic mail messages appear to be informational communications between several employees. Appeal at 5.

This office examined the three documents in question. Document 158 is a message from one member of a team of employees created to assess the employee concern to two other team members, including an attorney. The employee sent the recipients a draft of the scope of work for a physician to assist the team. It appears that the sender was soliciting advice and opinions from the recipients about the content of the scope of work. In California Edison, we held that an e-mail from one employee to a group of colleagues (including a company attorney) was protected by the attorney- client privilege because the author was soliciting legal advice from the attorney as well as comments from the others. California Edison, 28 DOE at 80,665. This situation is similar to the facts in California Edison. The language of Document 158 invites additional comments, and it is not unreasonable to assume that the author of the document would seek legal advice on this key phase of the assessment team’s activities. Thus, we find that portions of Document 158 are covered by the attorney-client privilege of Exemption 5. (1)

Document 163 is an e-mail that one employee sent to several others on the assessment team, including an attorney. The e-mail consists of four sentences, the last three redacted before release. This document is not soliciting legal advice from the attorney, nor was it used to obtain or provide legal advice. It appears to be transmitting and requesting routine information about a prospective meeting. We find that Document 163 is not covered by the attorney-client privilege, and remand this document to DOE/ID for release in its entirety, or for a further explanation of why the material is exempt from disclosure under the FOIA.

Document 167 is an e-mail message that refers to, and contains, an excerpt of the testimony of a physician at a Senate hearing. An assessment team member sent the document to the entire team for their information. However, the attorney on the team replied to the e-mail with an opinion regarding the testimony. Thus, this communication can be considered privileged. We note that DOE/ID properly released the non-exempt portions of the document.

2. The Deliberative Process Privilege

GAP has appealed DOE/ID’s use of the deliberative process privilege on two grounds: (1) that DOE has not explained how each document is predecisional and deliberative; and (2) that DOE has failed to explain adequately its inability to segregate non-exempt material in 52 documents labeled “inextricably intertwined.” (2) Appeal at 2-3. GAP contends that the agency must correlate the exemptions with passages within each document, rather than make blanket statements that all of the material is inextricably intertwined. Id. GAP argues that DOE/ID has violated the FOIA’s intent of public disclosure, made it impossible for GAP to appeal the withholding, and may have withheld non-exempt material. Id. at 1-4. GAP argues that the FOIA requires DOE to link each document withheld under Exemption 5's deliberative process privilege with an agency decision or policy to which the document contributed. Id.

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 conducted a de novo review of a representative sample of the documents at issue, and we conclude that the records contain material that is clearly pre-decisional and deliberative. However, there is a further inquiry required in this case because the issue currently under appeal is whether DOE/ID has provided the necessary information for GAP to understand DOE/ID’s basis for withholding material under Exemption 5. We find that, although DOE/ID has described each document adequately, it has not provided GAP with enough information to properly formulate an appeal.

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 ¶ 80,116 at 80,543 (2000) (R.E.V. Eng.); Paul W. Fox, 25 DOE ¶ 80,150 at 80,622 (1995), 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 DOE/ID has adequately described the withheld documents. The agency created a chart with seven columns, namely: document number, item, date, sender, recipient, subject or description, and exemption number or reason. Following are representative descriptions for the documents:

1) Status Report on Performance Assurance Division Review of Employee Concern (TS-PA000-030) (description of a draft memo). All inextricably intertwined.

2) Executive Summary (description of a draft executive summary). All inextricably intertwined.

3) Attachment 2.1. Beryllium in the Workplace (description of a draft paper, author and recipient unknown). All inextricably intertwined.

4) Draft Paper. IH Program Deficiencies. All inextricably intertwined.

Document Index for Items 1 and 2 of FOIA Request 00-123. Thus, DOE/ID has provided GAP with basic information regarding the document date, a brief description of the document, the author, and recipient.

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. DOE/ID withheld 94 of 172 responsive documents under the deliberative process privilege of Exemption 5. 52 of the 94 documents were labeled “all inextricably intertwined,” and thus withheld in their entirety. By way of explanation, DOE/ID stated in the determination:

The information that has been withheld under Exemption 5 falls squarely within the deliberative process privilege, attorney client privilege or attorney work product privilege. Where possible, all factual information was segregated from predecisional and deliberative information and released to you. However, some documents containing interviews with personnel, thoughts, opinions, conjecture and supposition were withheld in their entirety due to the fact that this information was so inextricably intertwined with factual information that it was not reasonable or possible to segregate. Where this is the case, it is noted in the Document Index.

Determination at 2.

The paragraphs quoted above do not explain how Exemption 5 applies to the specific documents withheld from GAP. Rather, DOE/ID has 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). See also R.E.V. Eng., 28 DOE ¶ 80,156 (2001). DOE/ID has not explained what role the responsive documents played in the administrative process at issue in GAP’s request for information related to its client’s whistleblower complaint. For instance, DOE/ID withheld 22 Status Reports in their entirety. However, even though the status reports are adequately described (e.g., “Status Report to DOE/ID Human Resources on Review to Evaluate an Employee Concern,” “Status Report to DOE/ID Human Resources on Review to Evaluate Allegations of Unsafe Work Place,” “Status Report on Performance Assurance Division Review of Employee Concern”), there is no explanation of the role of each document, or of the role of Status Reports as a category of documents, in the deliberative process surrounding the evaluation of Mr. Jensen’s employee concern. Thus, it is difficult for GAP to formulate its appeal. According to Mead, the courts do not favor “broad, sweeping generalized claims” of exemption. Mead, 566 F.2d at 251. Therefore, we find that DOE/ID has not provided the necessary information for GAP to understand the agency’s basis for withholding 112 responsive documents under Exemption 5. On remand, the agency should provide this information to the requester.(3)

C. Segregability of Non-Exempt Material

The FOIA requires that “any reasonably segregable portion of a record shall be provided to any person requesting such record after deletion of the portions which are exempt . . . .” 5 U.S.C. § 552(b); see also Greg Long, 25 DOE ¶ 80,129 (1995). However, if factual material is so inextricably intertwined with deliberative material that its release would reveal the agency’s deliberative process, that material can be withheld. Radioactive Waste Management Associates, 28 DOE ¶ 80,152 (2001). DOE/ID withheld 52 documents under Exemption 5 in their entirety, and determined that any non-exempt material in those documents was “inextricably intertwined” with exempt material and thus not subject to disclosure. Determination at 2.

This office reviewed a sample of the material that was withheld in its entirety, and based on our review, we find that DOE/ID should reconsider the issue of segregability. For example, we found some segregable factual material in Documents 72, 74-76, 77, 80, and 81. It is likely that other responsive documents may contain similar factual material, or other types of material--e.g., tables of contents, lists of tables or figures, and introductory matter--that may not qualify for protection under Exemption 5. See Radioactive Waste Management Associates, 28 DOE at 80,621. Mead states that non-exempt material that is “distributed in logically related groupings” and that would not result in a “meaningless set of words and phrases” may be subject to disclosure. Mead, 566 F.2d at 261. Our review concluded that the responsive documents contain non-exempt material distributed in logically related groupings, such as sentences and paragraphs, that could be released to the requester. We do not believe that release of the selected facts would reveal the deliberative process. See Radioactive Waste Management Associates, 28 DOE at 80,620. Accordingly, this portion of the Appeal is remanded to DOE/ID.

D. Public Interest

DOE regulations direct the agency to release responsive, exempt material if the DOE determines such release to be in the public interest. 10 C.F.R. § 1004.1. In applying this regulation, we note that the Department of Justice has indicated that it is its policy 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. Memorandum from the Attorney General to Heads of Department and Agencies, Subject: The Freedom of Information Act (October 4, 1993) at 1-2. We note that DOE/ID made eight discretionary releases to GAP in its release under the Determination Letter. There may be additional information that could also be released to the requester on remand.

It Is Therefore Ordered That:

(1) The Freedom of Information Act Appeal filed by GAP, August 17, 2001, OHA Case Number VFA-0690, is hereby granted as set forth in Paragraph (2) below and is denied in all other respects.

(2) This matter is hereby remanded to the Idaho Operations 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: October 5, 2001

(1)However, we note that Document 158, although exempt from disclosure under Exemption 5, is a good candidate for discretionary release. In addition, we find that some factual information in the document is reasonably segregable. See segregability discussion infra Section II.C.

(2)See segregability discussion infra Section II.C.

(3)Given the large volume of material, it may be more efficient for DOE/ID (yet still responsive to the requester) to categorize the documents and explain the role of each category of documents in the deliberative process.