October 3, 2002

DECISION AND ORDER

OF THE DEPARTMENT OF ENERGY

Appeal

Name of Petitioner: Martin Salazar

Date of Filing: September 5, 2002

Case Number: VFA-0773

On September 5, 2002, Martin Salazar (the Appellant) filed an Appeal from a final determination that the Savannah River Operations Office (Savannah River) of the Department of Energy (DOE) issued on August 21, 2002. That determination concerned a request for information the Appellant 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, and the Privacy Act, 5 U.S.C. § 552a, as implemented by the DOE in 10 C.F.R. Part 1008. Documents were located, redacted, and released to the Appellant in response to his request. In his Appeal, the Appellant asserts that Savannah River misinterpreted the standards under which it can withhold information. If granted, this Appeal would require Savannah River to release the documents in full.

Background

On April 8, 2002, the Appellant requested complete copies of all his “EEO files and any other disciplinary records in possession of [Savannah River].” Privacy Act Request dated April 8, 2002. On May 7, 2002, Savannah River released a number of redacted documents to the Appellant. He appealed to this Office on June 12, 2002. After discussions with Savannah River, it withdrew its May 7, 2002 determination letter, intending to issue a corrected letter. We dismissed the Appeal. Dismissal Letter dated September 4, 2002, from Thomas O. Mann, Deputy Director, Office of Hearings and Appeals (OHA), to Martin Salazar. On August 21, 2002, Savannah River issued the corrected determination letter, releasing redacted copies of the documents the Appellant requested. On September 5, 2002, the Appellant appealed a second time, claiming that Savannah River “misinterpreted the standards for which they seek exemption or has not established relevancy to the standards which they have cited.” Appeal Letter dated August 27, 2002, from Martin Salazar to Thomas O. Mann, Deputy Director, OHA.

Analysis

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. § 552a(a)(5). 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

Savannah River withheld the information which identifies investigative sources under Privacy Act Exemption (d)(5), which provides that “[n]othing 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)). We agree with the Appellant that Savannah River did not “establish relevancy to the standards which they cited.” However, in our discussion with Savannah River, we determined that the documents released to the Appellant by the August 21, 2002 Determination Letter are part of a Privacy Act system of records, called DOE-41. DOE-41 contains legal records. In this particular case, these legal records were compiled during the past ten years in response to complaints filed by the Appellant. Memorandum of Telephone Conversation between Janet Fishman, Attorney- Examiner, OHA, and Pauline Conner, Savannah River. In addition, the Appellant currently has a law suit pending in federal district court against Savannah River. Electronic Mail Message dated September 9, 2002, from Lucy Knowles to Janet Fishman.

Rather than remand the matter to Savannah River again, we will review the application of Exemption (d)(5). In Smeirtka v. Department of Treasury, 447 F. Supp. 221, 227-28 (D.D.C. 1978), the court found that Exemption (d)(5) covers documents prepared by and at the direction of lay agency staff personnel during a period prior to the plaintiff’s firing. Further, the court in Government Accountability Project v. Office of Special Counsel, 1988 WL 21394, at *5 (D.D.C. Feb. 22, 1988), found that the exemption applies to any records compiled in anticipation of civil proceedings whether prepared by attorneys or not. We believe that Exemption (d)(5) applies to the documentary information at issue in this case. The relevant records were compiled by Savannah River personnel in response to complaints filed by the Appellant. Since the withheld information is part of DOE-41, a Privacy Act system of records, and was compiled in response to complaints filed by the Appellant, it may properly be 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). Exemptions 5 and 6 are at issue in this case.

Exemption 5 exempts from mandatory disclosure documents that are “inter-agency memoranda 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 documents normally privileged in the civil discovery context. NLRB v. Sears, Roebuck & Co., 421 U.S. 132 (1975). Redacted portions of one document released to the Appellant contained the handwritten notes of an attorney, which were redacted prior to its release to the Appellant. Attorney work-product is a privilege commonly cited in the civil discovery context. We agree that the handwritten portions of this document were properly withheld.

Exemption 6 exempts 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). This includes legal files. In order to apply this exemption, an agency must weigh the privacy interests involved against the public interest in disclosure. See Department of Justice v. Reporters Comm. for Freedom of the Press, 489 U.S. 749 (1989). In this case, Savannah River properly found that withholding the names of witnesses and complainants would eliminate the possibility of harassment, and release of that information would not shed any light on the operations and activities of the government. August 21, 2002 Determination Letter at 3. Therefore, we find that Savannah River properly applied Exemption 6 in withholding the names of complainants and witnesses in these documents.

Conclusion

The information withheld is the handwritten notes of an attorney and the names of the complainants and the witnesses. Since we find the information was properly withheld by Savannah River under FOIA Exemptions 5 and 6 and Privacy Act Exemption (d)(5), the present Appeal should be denied.

It Is Therefore Ordered That:

(1) The Appeal filed on September 5, 2002, by Martin Salazar, Case No. VFA-0773, 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) and 5 U.S.C. § 552a(g)(1). Judicial review may be sought in the district where 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 3, 2002