Case No. VFA-0758

September 4, 2002

DECISION AND ORDER

OF THE DEPARTMENT OF ENERGY

Appeal

Name of Petitioner: Newhouse News Service

Date of Filing: July 9, 2002

Case Number: VFA-0758

On July 9, 2002, Newhouse News Service (Newhouse) filed an Appeal from a determination issued to it on June 19, 2002 by the FOIA and Privacy Act Division (FOIA Division) of the Department of Energy (DOE). That determination concerned a request for information that Newhouse submitted pursuant to the Freedom of Information Act (FOIA), 5 U.S.C. § 552, as implemented by the DOE in 10 C.F.R. Part 1004. If the present Appeal were granted, DOE would be ordered to release the information withheld and to search for additional responsive documents.

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

On March 2, 2001, Newhouse filed a FOIA request seeking the names of aluminum industry representatives who met with Secretary of Energy Spencer Abraham on or about February 13, 2001. In addition, Newhouse asked for correspondence or briefing papers that were distributed at the meeting. See Appeal Letter at 1. On June 19, 2002, the FOIA Division issued a determination which stated that two responsive documents were located. The FOIA Division provided Newhouse with one of these documents in its entirety. The other document was provided to Newhouse with certain deletions made pursuant to Exemption 5 of the FOIA. The FOIA Division stated the withheld material is “pre-decisional” and “deliberative.” See Determination Letter at 1.

On July 9, 2002, Newhouse filed the present Appeal with the Office of Hearings and Appeals (OHA). In its Appeal, Newhouse challenges the FOIA Division’s determination and asserts that material was improperly withheld under Exemption 5. In addition, Newhouse contends that the FOIA Division’s determination was incomplete and that more responsive materials must exist. See Appeal Letter at 2. For these reasons, Newhouse requests that the OHA direct the FOIA Division to release the requested information.

II. Analysis

Exemption 5

Exemption 5 of the FOIA exempts from mandatory disclosure documents which 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). The Supreme Court has held that this provision exempts "those documents, and only those documents, normally privileged in the civil discovery context." NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 149 (1975) (Sears). The courts have identified three traditional privileges that fall under this definition of exclusion: the attorney-client privilege, the attorney work-product privilege, and the executive "deliberative process" or "predecisional" privilege. Coastal States Gas Corporation v. Department of Energy, 617 F.2d 854, 862 (D.C. Cir. 1980) (Coastal States). In withholding portions of a memorandum written to Secretary Abraham, the FOIA Division relied upon the "deliberative process" privilege of Exemption 5.

The "deliberative process" privilege of Exemption 5 permits the government to withhold documents that reflect advisory opinions, recommendations, and deliberations comprising part of the process by which government decisions and policies are formulated. Sears, 421 U.S. at 150. It is intended to promote frank and independent discussion among those responsible for making governmental decisions. EPA v. Mink, 410 U.S. 73, 87 (1973) (quoting Kaiser Aluminum & Chem. Corp. v. United States, 157 F. Supp. 939 (Cl. Ct. 1958)) (Mink). The ultimate purpose of the exemption is to protect the quality of agency decisions. Sears, 421 U.S. at 151. In order to be shielded by Exemption 5, a document must be both predecisional, i.e. generated before the adoption of agency policy, and deliberative, i.e. reflecting the give-and-take of the consultative process. Coastal States, 617 F.2d at 866. The exemption thus covers documents that reflect, among other things, the personal opinion of the reviewers rather than the final policy of the agency. Id.

After reviewing the requested document at issue, we have concluded that the determination made by the FOIA Division in applying Exemption 5 was correct and consistent with the principles outlined above. The information withheld from Newhouse consists of comments and opinions prepared by a DOE employee and intended only for internal DOE use. The information requested in this case properly falls within the definition of "intra-agency memoranda" in the FOIA. In addition, the comments and opinions contained in the memorandum are clearly predecisional and deliberative. They were created by a subordinate of the Secretary of Energy for consideration and do not represent a final agency position. Furthermore, we note that the release of these opinions could inhibit employees from expressing their candid views if they believed that those views could become public knowledge. As such, the document at issue is precisely the sort of document which the deliberative process privilege of Exemption 5 is designed to protect. Sears, 421 U.S. at 153 (quoting Davis, The Information Act: A Preliminary Analysis, 34 U. Chi. L. Rev. 761, 797 (1967)). Accordingly, we hold that the comments and opinions withheld from the memorandum meet all the requirements for withholding material under the Exemption 5 deliberative process privilege.

Public Interest Determination

The fact that material requested falls within a statutory exemption does not necessarily preclude release of the material to the requester. The DOE regulations implementing the FOIA provide that "[t]o the extent permitted by other laws, the DOE will make records available which it is authorized to withhold under 5 U.S.C. § 552 whenever it determines that such disclosure is in the public interest." 10 C.F.R. § 1004.1. In this case, no public interest would be served by release of the comments and opinions contained in the memorandum at issue, which consist solely of advisory opinions and recommendations provided to DOE in the consultative process. The release of this deliberative material could have a chilling effect upon the agency. The ability and willingness of DOE employees to make honest and open recommendations concerning similar matters in the future could well be compromised. If DOE employees were inhibited in providing information and recommendations, the agency would be deprived of the benefit of their open and candid opinions. This would stifle the free exchange of ideas and opinions which is essential to the sound functioning of DOE programs. Fulbright & Jaworski, 15 DOE ¶ 80,122 at 80,560 (1987).

Adequacy of Search

When an agency conducts a search under the FOIA, it must undertake a search that is “reasonably calculated to uncover all relevant documents.” Weisberg v. United States Dep’t of Justice, 705 F.2d 1344, 1351 (D.C. Circ. 1983). “The standard of reasonableness which we apply to agency search procedures does not require absolute exhaustion of the files; instead, it requires a search reasonably calculated to uncover the sought materials.” Miller v. United States Dep’t of State, 779 F.2d 1378, 1384-85 (8th Cir. 1985). We have not hesitated to remand a case where it is evident that the search conducted was in fact inadequate. See, e.g., David G. Swanson, 27 DOE ¶ 80,178 (1999); Butler, Vines and Babb, P.L.L.C., 25 DOE ¶ 80,152 (1995).

In the present case, Newhouse asserts that a search for responsive documents should have included “any communication with or between the Department and Bonneville Power Administration officials.” See Appeal Letter at 2. It further argues that “it is apparent from the public record that such material must exist, but you did not provide them as requested.” Id. In response to Newhouse’s Appeal, we contacted the FOIA Division to determine the scope of the search. See Record of Telephone Conversation between Brenda Washington, FOIA Division and Kimberly Jenkins- Chapman, OHA (August 8, 2002). The FOIA Division informed us that it searched the Office of Executive Secretariat and the Office of the Assistant Secretary of Congressional and Intergovermental Affairs for any documents related to Newhouse’s request. These two offices were the ones determined to be most likely to contain responsive material. The FOIA Division stated that it provided Newhouse with two responsive documents. According to the FOIA Division no other responsive documents exist. Specifically, with respect to the meeting Secretary Abraham had on or about February 13, 2001 with aluminum industry representatives, the FOIA Division informed us that no handouts or other correspondence were provided at this meeting and that the representatives only exchanged business cards. Id.

Given the facts presented to us, we find that the FOIA Division conducted an adequate search which was reasonably calculated to uncover documents responsive to Newhouse’s request. Accordingly, Newhouse’s Appeal should be denied.

It Is Therefore Ordered That:

(1) The Appeal filed by Newhouse News Service, OHA Case No. VFA-0758, 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 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: September 4, 2002