Case No. VFA-0691

September 13, 2001

DECISION AND ORDER

OF THE DEPARTMENT OF ENERGY

Appeal

Name of Petitioner:R.E.V. Engineering Services

Date of Filing:August 23, 2001

Case Number: VFA-0691

This decision addresses the Freedom of Information Act (FOIA) appeal filed by R.E.V. Engineering Services (Appellant) pursuant to 5 U.S.C. § 552, as implemented by the Department of Energy (DOE) at 10 C.F.R. Part 1004. For the reasons set forth below, the appeal will be granted in part and remanded.

I. Background

This appeal arises from two FOIA requests that the Appellant filed with the DOE FOI/Privacy Act Division (DOE/FOI) in Washington, D.C. In the first request, dated April 7, 2000 (the April 2000 request), Appellant sought

the agenda, briefing slides, briefing books, presentation notes and handouts from the briefing(s) given Gen. Eugene Habiger at the Rocky Flats Environmental [Technology] Site [(RFETS)] on or about April 6, 2000 [including] information presented to the Gen. about any changes proposed or implemented in security procedures since [he] last visited [RFETS].

In the second request, dated July 23, 2000 (the July 2000 request), Appellant sought

[d]ocuments pertaining to observations, recommendations, changes, additions or deletions to Safeguards and Security practices at [the Rocky Flats Environmental Technology Site (RFETS), the Rocky Flats Field Office (RFFO)] and/or their contractors or subcontractors generated as a result of visits [to the RFETS by Jack Pope and Rich Levernier].

On July 14, 2000, the DOE/FOI issued a determination regarding the April 2000 request, which stated that the Policy, Standards, and Analysis Division in the Headquarters Office of Safeguards and Security had not located any responsive documents. Appellant filed an appeal from that

determination, which challenged the adequacy of the DOE/FOI’s search, but in a decision issued on September 1, 2000, the Office of Hearings and Appeals (OHA) upheld the DOE/FOI’s determination. See R.E.V. Engineering Services, 28 DOE ¶ 80,109 (2000).

A document relevant to the April 2000 request surfaced, however, in the course of processing the July 2000 request. As explained in its August 7, 2001 determination issued to Appellant regarding the latter request, the DOE/FOI found only one document responsive to the July 2000 request, which was also responsive to the April 2000 request. As explained in the determination, the document includes a one page cover memorandum (the cover memorandum), dated April 3, 2000, from the Director of the Office of Safeguards and Security to the Leader of the Safeguards and Security Team, that forwards an attached two page memorandum. The attached two page memorandum, dated March 28, 2000, from the Program Manager of Assessment and Integration to the Acting Director of the Field Operations Division, addresses deadly force training at Rocky Flats (the training memorandum). The DOE/FOI released to Appellant the cover memorandum. It withheld the training memorandum based upon Exemptions 2 and 5 of the FOIA, 5 U.S.C. § 552(b)(2) and (5), and its finding that release of the document would not be in the public interest.

On August 23, 2001, Appellant filed an appeal from the DOE/FOI’s determination. Appellant challenges the adequacy of the DOE/FOI’s search for documents and contends that the DOE/FOI improperly invoked Exemptions 2 and 5.

II. Analysis

A. Adequacy of the Search

Unless requested material falls within one of nine statutory exemptions, the FOIA generally requires a federal agency to release its records to the public upon request. 5 U.S.C. § 552(a); 10 C.F.R. § 1004.3. Putting aside for a moment the exemptions at issue here, we first address the adequacy of the DOE/FOI’s search in responding to Appellant’s July 2000 FOIA request.(1) For the reasons set forth below, we find that the DOE/FOI’s search is incomplete and are therefore remanding this case for a final determination regarding all located responsive documents.

The FOIA requires an agency to “conduct a search reasonably calculated to uncover all relevant documents.” Truitt v. United States Dep’t of State, 897 F.2d 540, 542 (D.C. Cir. 1990). A reasonably calculated search must be thorough and conscientious, but not absolutely exhaustive. Miller v. United States Dep’t of State, 779 F.2d 1378, 1384-85 (8th Cir. 1985). “The issue is not whether any further responsive documents might conceivably exist but rather whether the government search for responsive documents was adequate.” Perry v. Block, 684 F.2d 121, 128 (D.C. Cir. 1982) (emphasis in original).

In responding to the July 2000 request, the DOE/FOI referred it to the DOE Headquarters Office of Safeguards and Security (OSS) Field Operations Division (FOD). OHA telephone conversations with DOE/FOI, Aug. 28, 29, 2001. We find that the FOD was the proper referent division, because at all times relevant to the processing of the July 2000 request, Mr. Levernier worked for the OSS, and Mr. Pope worked with him as a contractor employee. OHA telephone correspondence from DOE/FOI, Aug. 29, 30, 2001.

Appellant asserts that the RFFO should have been searched, as well. Appeal letter at 3. Indeed, upon receipt of the July 2000 request, the DOE/FOI contacted the RFFO, FOIA Division (RFFO/FOI). OHA telephone conversation with DOE/FOI and DOE/RFFO, Aug. 28, 2001. However, as the RFFO/FOI explained to the DOE/FOI in July 2000, and to OHA in the course of reviewing this appeal, all records regarding the results of Messrs. Levernier and Pope’s security visit to the RFFO would be located at OSS Headquarters, where the records were generated. OHA telephone conversation with DOE/RFFO, Aug. 28, 2001. Messrs. Levernier and Pope did not write or leave relevant records at the RFFO, nor did they send relevant records to that office. Therefore, documents pertaining to the results of their visit would not be located there. Id.

Although we find that the FOD is the proper referent division, we are unable to ascertain whether it conducted an adequate search for documents, because apparently, the FOD’s search is incomplete. While this appeal was pending, the FOD informed us that it located an additional document that may be relevant to the July 2000 request, but which has not yet been reviewed under the FOIA. OHA telephone conversation with FOD, Aug. 31, 2001. We will therefore remand this case to the DOE/FOI to complete its search and issue a revised, final determination regarding all documents responsive to the July 2000 request. Appellant may file a new appeal from that determination, if he deems it necessary at that time.

B. Exemption 2

We now turn to the issue of whether the FOD properly withheld the training memorandum. As stated above, the FOIA sets forth 9 exemptions pursuant to which an agency may withhold responsive documents. The DOE/FOI withheld the training memorandum pursuant to Exemptions 2 and 5. We begin our analysis with Exemption 2.

Exemption 2 permits an agency to withhold from public disclosure material “related solely to the internal personnel rules and practices of an agency.” 5 U.S.C. § 552(b)(2). Following the U.S. Supreme Court’s decision United States Dep’t of Air Force v. Rose, 425 U.S. 352 (1976) (Rose), the courts have interpreted Exemption 2 to include two distinct categories of information. The first category, referred to as “low 2,” includes information relating to internal matters of an agency in which the public could not reasonably be expected to have an interest, for example, information concerning lunch hours or parking regulations. Rose, 425 U.S. at 369-70. The second category, referred to as “high 2,” encompasses information the disclosure of which “may risk circumvention of agency regulation.” 425 U.S. at 369. As stated in Crooker v. Bureau of Alcohol, Tobacco and Firearms, 670 F.2d 1051, 1074 (D.C. Cir. 1981) (Crooker), high 2 information may be withheld if (i) it is used for predominantly internal purposes, and (ii) disclosure significantly risks circumvention of agency regulations or statutes (the Crooker test).

We have reviewed the training memorandum and find that its entire substantive text (the text) constitutes a high 2 record shielded from disclosure. The text addresses perceived training deficiencies at RFFO and is obviously an internal document not intended for dissemination outside the DOE. In addition, because the text discusses training deficiencies with regard to safeguards and security at a radioactive waste facility, its disclosure “might help outsiders to circumvent regulations or standards.” Caplan v. Bureau of Alcohol, Tobacco and Firearms, 587 F.2d 544, 546 (2d Cir. 1978) (Caplan) (finding agency pamphlet that focused on techniques for apprehending those engaged in illegal behavior protected by Exemption 2). Release of the text might increase the risk of physical harm to agency officials or the public and significantly assist those engaged in nefarious activity by acquainting them with intimate details of the security strategies employed by the DOE. This raises the possibility of circumvention of those strategies. See Caplan, 586 F.2d at 547. As such, the text falls within the protective purview of Exemption 2.

However, we find that the heading of the training memorandum, including the issuing DOE facility, date, names of the author and addressee, and subject line (collectively, “the heading information”) are not protected as low 2 or high 2 information. Indeed, the DOE/FOI appears to agree; although it withheld the entire training memorandum, it revealed the heading information to Appellant in its determination letter. Unless the heading information is protected under Exemption 5, that portion of the training memorandum, which is segregable from the text, must be released to Appellant.

C. Exemption 5

We therefore proceed to examine whether the withheld information is protected under Exemption 5. We find that it is not.

Exemption 5 of the FOIA shields from 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). Exemption 5 incorporates the executive “deliberative process” privilege, which 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. NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 150 (1975); Coastal States Gas Corp. v. United States Dep’t of Energy, 617 F.2d 854, 862 (D.C. Cir. 1980) (Coastal States). The purpose of the deliberative process privilege is to promote high-quality agency decisions by fostering frank and independent discussion among individuals involved in the decision-making process. Coastal States, 617 F.2d at 866.

Information within the purview of the deliberative process privilege must be both predecisional and deliberative. Information is predecisional if it is prepared or gathered in order to assist an agency decisionmaker in arriving at a decision. Renegotiation Board v. Grumman Aircraft Eng. Corp., 421 U.S. 168, 184 (1975). Predecisional information is also deliberative if it reflects the give-and- take of the consultative process, Coastal States, 617 F.2d at 866, so that disclosure would reveal the mental processes of the decision-maker, National Wildlife Federation v. United States Forest Service, 861 F.2d 1114, 1119 (9th Cir. 1988).

Information protected by the deliberative process privilege may include “recommendations, draft documents, proposals, suggestions, and other subjective documents which reflect the personal opinions of the writer rather than the policy of the agency,” Coastal States, 617 F.2d at 854, but does not include factual information, unless the factual material is “inextricably intertwined” with exempt material, Soucie v. David, 448 F.2d 1067, 1077 (D.C. Cir. 1971). In some circumstances, “disclosure of even purely factual material may so expose the deliberative process within an agency that it must be deemed exempted under [Exemption 5].” Mead Data Cent., Inc. v. United States Dep’t of Air Force, 566 F.2d 242, 256 (D.C. Cir. 1977) (Mead Data).

As an initial matter, we agree with the DOE/FOI that the text of the training memorandum is protected under Exemption 5, as well as Exemption 2.(2) The text is predecisional, because it was prepared and gathered by an OSS manager in order to assist the Acting Director of the FOD in arriving at a decision regarding security training procedures. The text is also deliberative, as it represents the opinion of the OSS manager regarding security at the RFFO and sets forth a recommendation regarding security training.

On the other hand, the heading information is purely factual information that is not inextricably intertwined with exempt material, i.e., the text. The heading information does not hint at a predecisional or deliberative process and sits distinctly apart from the text. Thus, we find that it is not protected under the FOIA and must be released to Appellant on remand.

D. Public Interest

DOE regulations, 10 C.F.R. § 1004.1, provide that “the DOE will make records available which it is authorized to withhold under [a FOIA exemption] whenever it determines that such disclosure is in the public interest.” Therefore, although we have determined that the text of the training memorandum is protected under Exemptions 2 and 5, we must finally address whether disclosure of the text is in the public interest. We find that it is not.

As discussed above, the text directly relates to security issues and training deficiencies at RFFO, a radioactive waste facility. We agree with the DOE/FOI that disclosure of the text would “reveal certain vulnerabilities” at RFFO, which “could be exploited by those who might seek to harm the facility.” DOE/FOI determination letter at 3. An administrative manual that sets forth or clarifies an agency’s substantive or procedural regulations might be subject to the disclosure requirements, since there may be a “legitimate public interest in having those affected guide their conduct in conformance with the agency’s understanding.” Caplan, 587 F.2d at 548. On the other hand, revelation of the text, “which does not purport to set forth [the agency’s] interpretation of substantive or procedural law, but rather focuses on the techniques for apprehending those who engaged in breaking the law, would not promote lawful behavior; it would only facilitate law evasion.” Id. Clearly, such a result is not in the public interest.

III. Conclusion

Based upon the foregoing, we are unable to make a determination as to whether the DOE/FOI conducted an adequate search in response to the July 2000 request. We are therefore remanding this matter to the DOE/FOI so that it may complete its search for documents and issue a new determination. With respect to the document that the DOE/FOI has located, the training memorandum, we find that the text is protected under the FOIA and DOE regulations. We further find, however, that the heading information in the training memorandum must be released.

It Is Therefore Ordered That:

(1) The appeal filed by R.E.V. Engineering Services on August 23, 2001, OHA Case No. VFA- 0691 is hereby granted as set forth in Paragraph (2) below, and denied in all other respects.

(2) This matter is hereby remanded to the FOI/Privacy Act Division of the Department of Energy Headquarters in Washington, D.C. for further action in accordance with the directions set forth in this decision.

(3) This is a final Order of the Department of Energy from which any aggrieved party may seek judicial review. Judicial review may be sought in the district where 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: September 13, 2001

(1)As discussed above, we have previously determined that the DOE/FOI’s search for documents in response to Appellant’s April 2000 request was adequate, so we will not revisit that issue here.

(2)Our analysis of the text with regard to the FOIA could end with the finding that it is protected under Exemption 2, but we analyze it also under Exemption 5 for the purpose of distinguishing it from the heading information.