Case No. VFA-0754

December 19, 2002

DECISION AND ORDER

OF THE DEPARTMENT OF ENERGY

Appeal

Name of Petitioner: Cynthia Frey Nordstrom

Date of Filing: July 9, 2002

Case Number: VFA-0754

On July 9, 2002, Cynthia Frey Nordstrom (Nordstrom) filed an Appeal from a determination issued to her by the Department of Energy’s Office of the Inspector General (IG). In that determination, the IG released some documents in their entirety, released some documents with redactions, and withheld some documents in their entirety. The determination responded to a request for information filed under the Freedom of Information Act (FOIA), 5 U.S.C. § 552, as implemented by the DOE in 10 C.F.R. Part 1004. This Appeal, if granted, would require the DOE to release the withheld information.

The FOIA generally requires that documents held by the federal government be released to the public upon request. However, Congress has provided nine exemptions to the FOIA which set forth the types of information agencies are not required to release. Under the DOE’s regulations, a document exempt from disclosure under the FOIA shall nonetheless be released to the public whenever the DOE determines that disclosure is not contrary to federal law and is in the public interest. 10 C.F.R. § 1004.1.

I. Background

On February 15, 2002, Nordstrom filed a FOIA request for copies of documents related to an IG investigation conducted into alleged drug use and leave abuse in the Office of Pipeline Certificates at the Federal Energy Regulatory Commission (FERC). Letter from Nordstrom to IG (February 15, 2002). The IG released three documents in their entirety, released 32 documents with material withheld pursuant to FOIA Exemptions 6 and 7(C), and released two documents with material withheld under Exemptions 5, 6, and 7(C). Letter from IG to Nordstrom at 1 (May 9, 2002) (Determination Letter). On July 9, 2002, Nordstrom filed this Appeal with OHA protesting the failure of the IG to release to her the interviews of Maynard Ugol (a FERC official who retired in 1997) and Deborah Grayson, a secretary at FERC. Letter from Nordstrom to Director, OHA (July 9, 2002). Nordstrom argues that the IG released a “heavily redacted, partial response that gave the impression that the investigation had ended months before Maynard Ugol testified to IG investigator, Yvette Milam.” Appellant’s Comments on FOIA Exemption 6 and Public Interest (December 6, 2002).

II. Analysis

A. Exemption 6

Exemption 6 shields from disclosure “[p]ersonnel 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) (Ripskis). 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. See Department of Justice v. Reporters Comm. for Freedom of the Press, 489 U.S. 749 (1989) (Reporters Committee); Hopkins v. Department of HUD, 929 F.2d 81, 88 (2d Cir. 1991); FLRA v. Department of Treasury Financial Management Service, 884 F.2d 1446, 1451 (D.C. Cir. 1989), cert. denied, 110 S. Ct. 864 (1990). 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 (the Exemption 6 standard). Reporters Committee, 489 U.S. at 762-770. See generally Ripskis, 746 F.2d at 3.

B. Exemption 7(C)

Exemption 7(C) applies to a much narrower class of cases than Exemption 6, but it has a less exacting standard that provides more expansive coverage. Pursuant to Exemption 7(C), agencies may withhold "records or information compiled for law enforcement purposes, but only to the extent that the production of such law enforcement records or information . . . (C) could reasonably be expected to constitute an unwarranted invasion of a personal privacy." 5 U.S.C. § 552(b)(7)(C); 10 C.F.R. § 1004.10(b)(7)(iii). Both Exemptions 6 and 7(C) require a balance of the interest in personal privacy in the withheld information against the public interest in the same information. There are, however, two significant differences between Exemptions 6 and 7(C). Pursuant to Exemption 7(C), the information must have been compiled for law enforcement purposes. Furthermore, since Exemption 7(C) allows an agency to withhold information where there is only a reasonable expectation of an "unwarranted invasion of personal privacy," Exemption 7(C) has a lower threshold of privacy interest than Exemption 6 where the balancing test calls for a "clearly unwarranted invasion of privacy." Pursuant to the provisions of Exemption 7(C), we have examined investigations conducted by the IG in response to complaints by individuals, as in this case, and found that they are law enforcement activities. See, e.g., Stoel Rives, LLP, 25 DOE ¶ 80,189 at 80,723 (1996); Robert Burns, 19 DOE ¶ 80,134 at 80,596-97 (1989). Since the documents at issue in this case meet Exemption 7(C)'s threshold test, we need only examine the IG's actions pursuant to the standard of Exemption 7(C), i.e., whether release of the withheld material would result in a reasonable expectation of an unwarranted invasion of personal privacy. See, e.g., J. G. Truher, 26 DOE ¶ 80,154 (1997); Burlin McKinney, 25 DOE ¶ 80,149 at 80,620 (1995); K.D. Moseley, 22 DOE ¶ 80,124 at 80,550 (1992).

C. Privacy Interest of the Interviewees

This office has reviewed unredacted copies of the material that the IG withheld pursuant to Exemptions 6 and 7(C) and found that it contains the names, titles and addresses of those individuals who were interviewed during the course of the IG’s investigation. All of the individuals whose names and identifying information were withheld are either actual sources or possible sources in the investigation into alleged drug and leave abuse at FERC. We have previously found that there is a strong privacy interest in the names and related identifying information of sources and witnesses to an investigation. Sources and witnesses have an obvious privacy interest in remaining anonymous. See James L. Schwab, 21 DOE ¶ 80,117 at 80,556 (1991); Lloyd R. Makey, 20 DOE ¶ 80,109 at 80,524 (1990). Furthermore, the public interest favors protecting the identities of sources and witnesses, rather than disclosing them, to ensure that witnesses continue to provide information voluntarily for law enforcement investigations, without fear of retribution. See generally King v. Department of Justice, 830 F.2d 210, 232-36 (D.C. Cir 1987). Since there are strong privacy and public interests in protecting these identities, we find that the IG properly withheld the names and other identifying information of the interviewees.

D. Public Interest in Disclosure

Having established the existence of a privacy interest in the identity of a witness in an investigation, the next step is to determine whether there is a public interest in disclosure. The Supreme Court has held that there is a public interest in disclosure of information that “sheds light on an agency’s performance of its statutory duties.” Reporters Committee, 489 U.S. at 773. See Marlene Flor, 26 DOE ¶ 80,104 at 80,511 (1996) (Flor). The requester has the burden of establishing that disclosure would serve the public interest. Id. (quoting Carter v. Department of Commerce, 830 F.2d 388 (D.C. Cir. 1987)).

Ms. Nordstrom argues that the public has an interest in the alleged misconduct of a high ranking government official. She further contends that withholding testimony under Exemption 6 will “conceal waste, fraud and abuse, and other inappropriate and unlawful behavior in government, and expose the inappropriate and retaliatory conduct of FERC management and the IG.” Appellant’s Comments at 2. According to Nordstrom, the testimony of Ugol and Grayson is critical to proving her complaint. Id.

We conclude that Ms. Nordstrom has not demonstrated, and we do not find, any public interest in the disclosure of the requested information. She merely speculates that agency misconduct exists, and can only speculate that Ugol and Grayson might provide supportive testimony for her complaint. The D.C. Circuit Court of Appeals found that “when . . . Governmental misconduct is alleged as the justification for disclosure, the public interest is “insubstantial” unless the requester puts forward ?compelling evidence that the agency denying the FOIA request is engaged in illegal activity’ and shows that the information sought ?is necessary in order to confirm or refute that evidence.’ ” Davis v. Department of Justice, 968 F.2d 1276, 1282 (D.C. Cir. 1992) (quoting Safecard Services, Inc. v. S.E.C., 926 F.2d 1197, 1205-1206 (D.C. Cir. 1991). See also Martin Becker, 28 DOE ¶ 80,123 (2000). Moreover, we find that release of the names (and other identifiers) of the interviewees in this investigation would not aid the public in understanding how FERC performs its statutory duties.(1) Therefore, in view of the fact that there is no apparent public interest to balance against the significant potential invasion of personal privacy, we find that the IG properly withheld the names and identifying information of the interviewees. (2).

E. Segregable Information

The FOIA also requires the agency to provide to the requester any reasonably segregable portion of a record after deletion of the portions that are exempt. See 5 U.S.C. § 552(b). See also FAS Engineering Inc., 27 DOE ¶ 80,131 (1998), quoting Soucie v. David, 448 F.2d 1067, 1077 (D.C. Cir. 1971) (factual material must be disclosed unless inextricably intertwined with exempt material).

This office performed a simultaneous page-by-page comparison of the unredacted IG file and the redacted information that was released to the requester. There was sufficient information in each document of the redacted package to make sense of the documents and to determine the subject of each interview. Dates were not redacted, interviews were clearly identified as such, and the IG did not redact sections that described the subject matter of the investigation or the purpose of the interview. Therefore, we find that the IG properly released all segregable, non-exempt factual material in this case.

It Is Therefore Ordered That:

(1) The Appeal filed by Cynthia Frey Nordstrom, on July 9, 2002, OHA Case No. VFA-0754, is hereby denied.

(2) This is a final order of the Department of Energy of which any aggrieved party may seek judicial review pursuant to the provisions of 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: December 19, 2002

(1) Ms. Nordstrom continues a friendly correspondence with Ugol in his retirement, and submitted copies of their email messages for the record in this case. There is no evidence in the messages that Ms. Nordstrom has ever asked Ugol to examine the material that the IG sent to her in order to confirm or deny her allegation that his testimony, if it exists, was withheld.

(2)Consequently, if the testimony of Ugol and Grayson is in the IG file, FOIA Exemptions 6 and 7(C) prevent us from releasing their identities to Ms. Nordstrom.