Case No. VFA-0699

October 31, 2001

DECISION AND ORDER

OF THE DEPARTMENT OF ENERGY

Appeal

Name of Petitioner: Chinese for Affirmative Action

Date of Filing: September 27, 2001

Case Number: VFA-0699

On September 27, 2001, Chinese for Affirmative Action (CAA) filed an Appeal from a determination that the Oakland Operations Office of the Department of Energy (DOE/OAK) issued in response to a request for documents that CAA 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/OAK issued the determination on August 27, 2001. This Appeal, if granted, would require that DOE/OAK release additional responsive information to CAA or provide a detailed explanation of its reasons for withholding such material.

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

In a June 7, 2001 letter to DOE/OAK, CAA requested 19 specific categories of documents related to “possible civil rights abuses and the use of racial profiling in the country’s national laboratories.” Letter from Monica C. Hayde, Steinhart & Falconer, LLP, to Roseann Pelzner-Goodwin, DOE/OAK (June 7, 2001).

On August 27, 2001, DOE/OAK sent CAA a partial response to the request,(1) along with an unidentified number of documents. In its response, DOE/OAK cited FOIA Exemption 6 in withholding from the requester “names, addresses, e-mails, telephone numbers, birth dates, and identifiers of lab, contractors, DOE employees, complainants, and witnesses.” Letter from Martin J. Domagala, Deputy Manager, DOE/OAK, to Monica C. Hyde, Steinhart and Falconer (August 27, 2001).

DOE/OAK also indicated that it was withholding information under FOIA Exemption 5. Id. at 2-3. Exemption 5 of the FOIA exempts from mandatory disclosure documents which are "[i]nter-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 this section exempts "those documents, and only those documents, normally privileged in the civil discovery context." National Labor Relations Bd. v. Sears, Roebuck & Co., 421 U.S. 132, 149 (1975). Among these privileges are the executive or deliberative process privilege, the attorney work-product privilege, and the attorney-client privilege. DOE/OAK cited all three privileges as a basis for withholding information.

CAA appeals what it calls DOE/OAK’s “blanket assertions of FOIA exemptions 5 and 6 and its failure to correlate the proffered exemptions to any particular record or category of requests.” Appeal at 1. Therefore, particularly relevant to our analysis below is the fact that DOE/OAK’s determination did not (1) identify, with respect to the particular documents or portions of documents withheld from CAA, the FOIA exemption that was the basis for the withholding; or (2) describe the documents that were withheld in their entirety from the requester.

II. Analysis

It is well established that a FOIA determination must have reasonably specific justifications for withholding all or parts of documents responsive to a FOIA request. See, e.g., Wisconsin Project on Nuclear Arms Control, 22 DOE ¶ 80,109 at 80,517 (1992); Davis Wright & Jones, 19 DOE ¶ 80,104 at 80,509 (1989) (and cases cited therein). Conclusory and generalized claims by agency officials that material is exempt from disclosure are not acceptable. We strongly adhere to this position so that the requesting party may prepare an adequate appeal, and so that this Office may make an effective review of the initial agency determination. Thus, “when an agency seeks to withhold information it must provide a relatively detailed justification, specifically identifying the reasons why a particular exemption is relevant and correlating those claims with the particular part of a withheld document to which they apply.” Arnold & Porter, 12 DOE ¶ 80,108 at 80,528 (1984). A sufficiently detailed explanation should indicate the issues addressed in a document and the functions of the document which render it exempt from mandatory disclosure. Coastal States Gas Corp. v. DOE, 617 F.2d 854, 861 (D.C. Cir. 1980); Vaughn v. Rosen, 523 F.2d 1136, 1145 (D.C. Cir. 1975); Arnold & Porter, 12 DOE at 80,528. These requirements are reflected in the DOE regulations, which require that a response to a properly submitted FOIA request include:

a statement of the reason for the denial, containing a reference to the specific exemption under the Freedom of Information Act authorizing the withholding of the record, and to the extent consistent with the purposes of the exemption, a brief explanation of how the exemption applies to the record withheld, and a statement of why a discretionary release is not appropriate.

10 C.F.R. § 1004.7(b)(1)(i).

In past cases, we have held that a general discussion of the policies underlying the various exemptions that fails to explain why the specific documents withheld fall within the claimed exemption is inadequate. Arnold & Porter, 12 DOE at 80,528 (and cases cited therein). Instead, we have required the agency to support its application of an exemption providing the type of justification required by Arnold & Porter.

Moreover, a document withheld in its entirety must be described with enough specificity to allow the requester (1) to ascertain whether the claimed exemptions reasonably apply to the document 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 at 80,527. 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.

In this case we find that DOE/OAK’s response to CAA’s request does not permit either an adequate appeal or an effective review of its basis for withholding documents. Specifically, the response fails to identify which FOIA exemption (Exemption 5 or Exemption 6) applies to each document or portion of document withheld. Nor does the response identify or describe those documents that were withheld from the requester in their entirety.(2)

For these reasons, we will remand this matter to DOE/OAK so that it may issue a new determination to CAA. This new determination should, for each document or portion of document withheld from the requester, identify the FOIA exemption (and with respect to Exemption 5, the particular privilege) that is the basis for the withholding. In addition, any document that is withheld in its entirety should be 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.(3)

It Is Therefore Ordered That:

(1) The Freedom of Information Act Appeal filed by CAA on September 27, 2001, OHA Case Number VFA-0699, 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 Oakland Operations Office of the Department of Energy for the issuance of 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 31, 2001

(1)DOE/OAK stated that it was also forwarding the request to DOE Headquarters, which would respond directly to CAA.

(2)CAA requests that DOE/OAK “be directed to produce responsive documents from each of the three laboratories under its umbrella, rather than just one or two laboratories.” Appeal at 4. However, until DOE/OAK has identified all responsive documents to the Appellant, it would be premature to consider any argument by CAA regarding the adequacy of DOE/OAK’s search for documents.

(3)Though CAA complains of DOE/OAK’s failure to correlate specific responsive documents to the enumerated categories of its request, we find no basis in the relevant statute or regulations that would require DOE/OAK to do so. Nonetheless, we do agree with CAA that this could facilitate its understanding of the reasons for the withholding of information.