Case No. VFA-0714

February 14, 2002

DECISION AND ORDER

OF THE DEPARTMENT OF ENERGY

Appeal

Name of Appellant: Mark J. Chugg

Date of Filing: January 17, 2002

Case Number: VFA-0714

On January 17, 2002, Mark J. Chugg (the Appellant) filed an Appeal from a final determination issued on January 9, 2002, by the Department of Energy’s Office of Hearings and Appeals (OHA). In that determination, OHA responded to a Request for Information filed by the Appellant on December 4, 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. OHA’s determination withheld personally identifiable information from the Appellant. This information was withheld under FOIA Exemption 7(C) and Privacy Act Exemption (d)(5). This Appeal, if granted, would require OHA to release the information it withheld.

The Appellant had filed a complaint with OHA under 10 C.F.R. Part 708 alleging that his employer had retaliated against him for whistleblowing. The complaint was then investigated by an OHA attorney who issued a report of investigation on October 10, 2001. A copy of the report of investigation and the case file on which it was based was provided to the Appellant in accordance with 10 C.F.R. § 708.23(b). However, certain information that identified sources used in the investigation was not provided to the Appellant. (1) The Appellant subsequently filed a request for information seeking the withheld information with the DOE’s Freedom of Information and Privacy Division, which referred the Appellant’s request for information to OHA on December 4, 2001. On January 9, 2002, OHA issued a determination letter in which it withheld the requested information under FOIA Exemption 7(C) and Privacy Act Exemption (d)(5), citing the “obvious possibility of harassment, intimidation or other personal intrusions.” Determination Letter at 1. The Appellant filed the present Appeal on January 17, 2001, seeking the information withheld by the January 9, 2002 determination letter. (2)

The withheld information is personally identifiable information that specifically concerns the Appellant and is contained in a system of records from which records are retrieved. 5 U.S.C. § 552(b). Therefore, the Privacy Act and the FOIA mandate its release to the Appellant unless the agency can show that it can be withheld under (a) an applicable exemption to the Privacy Act disclosure provisions, and (b) an applicable exemption to the FOIA disclosure provisions. Therefore, we will consider the present appeal under both acts.

The Privacy Act

OHA withheld the information which identifies investigative sources under Privacy Act Exemption (d)(5).

That exemption provides:

Nothing in this section shall allow an individual access to information compiled in reasonable anticipation of a civil action and proceeding.

5 U.S.C. § 552a(d)(5) (Exemption (d)(5)). (3) The D.C. Circuit has previously upheld an agency’s withholding, under Exemption (d)(5), of witness notes and statements collected by a government attorney during an investigation of allegations of retaliation against a whistleblower. In Martin v. Office of Special Counsel, 819 F.2d 1181(D.C. Cir. 1987) (Martin), the D.C. Circuit found that such information is properly withheld under Exemption (d)(5) when it is collected in reasonable anticipation of a “quasi-judicialadministrative hearing.” Id. at 1187-88. The D.C. Circuit defined a quasi-judicial administrative hearing as an administrative proceeding with three specific attributes: the proceeding must (1) be adversarial in nature, (2) be subject to the rules of evidence, and (3) include discovery proceedings. Id. at 1188. The DOE’s Whistleblower Protection Regulations provide for a hearing that is adversarial in nature, includes discovery, and is subject to some evidentiary rules. 10 C.F.R. Part 708. Accordingly, we find that the DOE Whistleblower hearings are quasi-judicial in nature.

Since the withheld information was compiled in reasonable anticipation of a quasi-judicial administrative hearing, it is properly withheld under Exemption (d)(5).

The FOIA

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 the FOIA has the burden of proving that the information falls under the claimed exemption. See 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). Only Exemption 7(C) is at issue in the instant case.

Exemption 7(C) allows an agency to withhold “records or information compiled for law enforcement purposes, if release of such law enforcement records or information . . . could reasonably be expected to constitute an unwarranted invasion of personal privacy. . . .” 5 U.S.C. § 552(b)(7)(C); 10 C.F.R. § 1004.10(b)(7)(iii).

The threshold test for withholding information under Exemption 7(C) is whether such information is compiled as part of or in connection with an agency law enforcement proceeding. FBI v. Abramson, 456 U.S. 615, 622 (1982). The scope of Exemption 7 encompasses enforcement of both civil and criminal statutes. Rural Housing Alliance v. Department of Agriculture, 498 F.2d 73, 81 & n.46 (D.C. Cir. 1974). In the instant case, OHA is charged with investigating allegations of retaliation against whistleblowers. 10 C.F.R. Part 708. OHA is therefore a classic example of an organization with a clear law enforcement mandate. In the present case, the OHA documents were created during an investigation of a whistleblower complaint filed by the Appellant. Consequently, the OHA documents at issue were clearly created for a law enforcement purpose.

In order to determine whether a record may be withheld under Exemption 7(C), an agency must undertake a three-step analysis. First, the agency must determine whether or not a significant privacy interest would be compromised by the disclosure of the record. If no privacy interest is identified, the record may not be withheld pursuant to either of the exemptions. See Ripskis v. Department of Housing and Urban Dev., 746 F.2d 1, 3 (D.C. Cir. 1984) (Ripskis). Second, the agency must determine whether or not release of the document would further the public interest by shedding light on the operations and activities of the Government. See Reporters Committee for Freedom of the Press v. Department of Justice, 489 U.S. 749 (1989) (Reporters Committee). Finally, the agency must weigh the privacy interests it has identified against the public interest in order to determine whether release of the record could reasonably be expected to constitute an unwarranted invasion of personal privacy. See generally Ripskis, 746 F.2d at 3; Stone v. FBI, 727 F. Supp. 662, 663-64 (D.D.C. 1990).

We find that there is a privacy interest here. Because of the obvious possibility of harassment, intimidation, or other personal intrusions, the courts have consistently recognized significant privacy interests in the identities of individuals whose names are contained in investigative files. Safecard Services, Inc. v. S.E.C., 926 F.2d 1197 (D.C. Cir. 1991); Cucarro v. Secretary of Labor, 770 F.2d 355, 359 (3d Cir. 1985). We have followed the courts' lead. James L. Schwab, 21 DOE 80,117 at 80,556 (1991); Lloyd R. Makey, 20 DOE 80,129 (1990). Therefore, we find that release of the individuals' identities or information that could identify these individuals would result in significant invasions of privacy.

In Reporters Committee, the Supreme Court narrowed the scope of the public interest in the context of the FOIA. The Court found that only information which contributes significantly to the public's understanding of the operations or activities of the Government is within the public interest as that term is used in the FOIA. Id. We fail to see how release of the identities of individuals in the present case would inform the public about the operations and activities of Government. Accordingly, we find that there is little or no public interest in disclosure of the individuals' identities or information that could identify these individuals.

After weighing the significant privacy interests present in this case against an insubstantial or non- existent public interest, we find that release of information revealing the individuals' identities would constitute a clearly unwarranted invasion of personal privacy. Accordingly, we find that information that would reveal the identities of the individuals was properly withheld under Exemption 7(C).

Conclusion

Since the withheld information was properly withheld by OHA under FOIA Exemption 7(C) and Privacy Act Exemption (d)(5), we find that the present appeal should be denied.

While we are strongly committed to keeping the public fully informed about DOE actions, we are also mindful of the need to preserve the privacy rights of individuals as well as the integrity of the whistleblower investigation process. By releasing the responsive documents with only those redactions necessary to prevent identification of specific individuals, which is what has been done here, the agency can provide as much information as possible while safeguarding individual privacy rights.

It Is Therefore Ordered That:

(1) The Appeal under the Freedom of Information Act and the Privacy Act filed by Mark J. Chugg on January 17, 2002 (Case Number VFA-0714) is hereby denied.

(2) 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: February 14, 2002

(1)A report of investigation is typically issued prior to the commencement of a proceeding before an OHA hearing officer.

(2)In order to provide an independent and objective review of OHA’s initial determination, OHA Deputy Director, Thomas O. Mann issued the determination letter in response to the Appellant’s request, while the present appeal was adjudicated by OHA’s Director, George B. Breznay.

(3)The Appellant did not file a request under the Privacy Act. However, it is DOE policy to apply the Privacy Act when individuals request information about themselves that is contained in a system of records.