Case No. VFA-0727

March 27, 2002

DECISION AND ORDER

OF THE DEPARTMENT OF ENERGY

Appeal

Name of Appellant:Mitchell G. Brodsky

Date of Filing:February 27, 2002

Case Number: VFA-0727

Mitchell G. Brodsky filed this Appeal in response to a determination issued to him by the Department of Energy's Yucca Mountain Site Characterization Office (YMSCO). The determination deals with a request that Brodsky submitted pursuant to the Freedom of Information Act (FOIA), 5 U.S.C. § 552, as implemented by the Department of Energy at 10 C.F.R. Part 1004. In his Appeal, Brodsky requests the release of material responsive to the request. As explained below, we will grant the Appeal and remand Brodsky's request for further processing.

I. Background

Brodsky's FOIA request sought the release of a report prepared for the DOE by John Nicoletti (the Nicoletti report). The Nicoletti report concerns an investigation into allegations by Brodsky that he was subjected to a hostile work environment.

YMSCO located a copy of the Nicoletti report. However, YMSCO withheld the Nicoletti report in its entirety, claiming it was exempt from mandatory release pursuant to 5 U.S.C. § 552(b)(6) (Exemption 6). Brodsky then filed the present Appeal with the Office of Hearings and Appeals.

II. Analysis

The FOIA generally requires that all federal agency records be made available to the public, while providing for nine categories of records that are exempt from mandatory disclosure. YMSCO withheld the draft report under Exemption 6 of the FOIA, which exempts "personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy." 5 U.S.C.§ 552(b)(6); 10 C.F.R. § 1004.10(b)(6). The purpose of Exemption 6 is to "protect individuals from the injury and embarrassment that can result from the unnecessary disclosure of personal information." Department of State v. Washington Post Co., 456 U.S. 595, 599 (1982).

In order to determine whether information may be withheld under Exemption 6, an agency must undertake a three-step analysis. First, the agency must determine whether a significant privacy interest would be invaded by the disclosure of the record. If no privacy interest is identified, the record may not be withheld pursuant to Exemption 6. Ripskis v. Department of HUD, 746 F.2d 1, 3 (D.C. Cir. 1984). Second, the agency must determine whether release of the document would further the public interest by shedding light on the operations and activities of the government. Hopkins v. Department of HUD, 929 F.2d 81, 88 (2d Cir. 1991); Department of Justice v. Reporters Comm. for Freedom of the Press, 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 the release of the record would constitute a clearly unwarranted invasion of personal privacy. Reporters Committee, 489 U.S. at 762-770.

The fact that some material in a record meets the criteria for withholding discussed above does not necessarily mean that the record may be withheld in its entirety. 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 under this subsection." 5 U.S.C. § 552(b); Greg Long, 25 DOE ¶ 80,129 (1995). However, material need not be segregated and released when the exempt and nonexempt material are so "inextricably intertwined" that release of the nonexempt material would compromise the exempt material, or where nonexempt material is so small and interspersed with exempt material that it would pose "an inordinate burden" to segregate it. Lead Industries Assoc. v. OSHA, 610 F.2d 70, 85 (2d Cir. 1979).

YMSCO states in the Determination Letter that it is withholding the report pursuant to Exemption 6 because "release of this document, in its entirety, would compromise substantial privacy interests and would clearly be an unwarranted invasion of personal privacy." The basis for this claim appears to be the fact that the Nicoletti report contains the names of Brodsky's fellow employees that were interviewed by Nicoletti, and a summary of their statements regarding Brodsky's allegation. YMSCO also states that "the release of the names and identifying information in this case could chill employees from providing candid information in the future."

We obtained a copy of the Nicoletti report and reviewed it in light of the Exemption 6 criteria. It consists of summaries of interviews Nicoletti conducted with Brodsky and other employees, and Nicoletti's assessment of Brodsky's claim. In our review, we found that YMSCO is correct in withholding some material under Exemption 6. We also found, however, segregable passages that do not appear to qualify for withholding under Exemption 6. For example, the report contains an "Assessment Summary," a summary of Nicoletti's interview with Brodsky, and a summary of documents that Brodsky submitted to Nicoletti. It appears to us that each of these sections consists primarily of material does not disclose personal information about any person other than Brodsky. Such material could therefore be released, either unredacted or with minor redactions, without compromising the privacy interests of other persons interviewed by Nicoletti.

III. Conclusion

On remand, YMSCO must review the withheld document, segregate and release all nonexempt portions of the document, and issue a new determination that justifies the withholding of any material from Brodsky.

It Is Therefore Ordered That:

(1) The Appeal filed by Mitchell G. Brodsky (Case No. VFA-0727) is hereby granted as set forth in paragraph (2) below and denied in all other aspects.

(2) This matter is hereby remanded to the Yucca Mountain Site Characterization Office for further proceedings consistent with the guidelines set forth in the above Decision.

(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 located, or in the District of Columbia.

George B. Breznay

Director

Office of Hearings and Appeals

Date: March 27, 2002