R.E.V. ENG Services, Case No. VFA-0605

Case No. VFA-0605, 28 DOE ¶ 80,116

October 4, 2000

DECISION AND ORDER

OF THE DEPARTMENT OF ENERGY

Appeal

Name of Petitioner: R.E.V. ENG Services

Date of Filing: September 6, 2000

Case Number: VFA-0605

On September 6, 2000, R.E.V. ENG Services filed an Appeal from a final determination that the Rocky Flats Field Office (Rocky Flats) of the Department of Energy (DOE) issued on August 16, 2000. In its determination, Rocky Flats partially denied R.E.V. ENG Services’ request for information submitted 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 Rocky Flats to release the information it withheld.

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 that may be withheld at the discretion of the agency. 5 U.S.C. § 552(b). Those nine categories are repeated in the DOE regulations implementing the FOIA. 10 C.F.R. § 1004.10(b). The DOE regulations further provide that documents 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

In a letter dated April 8, 2000, R.E.V. ENG Services submitted a FOIA request to Rocky Flats for documents pertaining to a FOIA request and the later appeal filed by Charlene Pazar on June 9, 1997, for the “Final Report that was prepared for the [Rocky Flats] Office of Chief Counsel by David Frederickson of the Albuquerque Field Office.(1) Request Letter dated April 8, 2000, from David Ridenour, P.E., R.E.V. ENG Services, to Mary Hammack, FOIA/Privacy Act Officer, Rocky Flats (Request Letter).

On August 16, 2000, Rocky Flats released eight documents, withholding only residential addresses and telephone numbers under Exemption 6 of the FOIA. Determination Letter dated August 16, 2000, from Barbara A. Mazurowski, Manager FOI Authorizing/Denying

Official (Determination Letter), at 3. Rocky Flats also partially denied the request. It withheld eight documents in their entirety under Exemption 5 of the FOIA. Id. at 2.

In its Appeal, R.E.V. ENG Services disputes the withholding of information under Exemption 5. First, R.E.V. ENG Services claims that “[t]he nature of [the document Rocky Flats identified as ?Note for Retained Copies’] is too unclear from the vague description given.” Appeal Letter at 3 dated August 29, 2000, from David E. Ridenour, P.E., R.E.V. ENG Services, to George B. Breznay, Director, Office of Hearings and Appeals (OHA) (Appeal Letter). R.E.V. ENG Services also claims that no attempt has been made to reasonably segregate factual information from the note. Id. In regard to the other seven documents withheld in their entirety under Exemption 5, R.E.V. ENG Services argues that Rocky Flats did not specify whether the documents were being withheld because they were deliberative or attorney-work product. Id. R.E.V. ENG Services continues that Rocky Flats must assert Exemption 5 for each document individually. It contends that a blanket denial is insufficient. Id. Further, R.E.V. ENG Services argues that Rocky Flats has not attempted to segregate factual information from these documents. Id. at 4. (R.E.V. ENG Services is not appealing the withholding of the residential addresses and telephone numbers made under Exemption 6.)

II. ANALYSIS

A. Deliberative Process Privilege or Attorney Work-Product

Rocky Flats has identified the “Note for Retained Copies” as attorney work-product. However, we could not ascertain from the Determination Letter whether the other seven documents were withheld because they were deliberative and pre-decisional, or attorney work-product, or both. From our discussions with Rocky Flats, we have determined that one of those seven documents, a memorandum from James D. Long Jr., to Mary Hammack, dated June 23, 1997 (Long Memorandum), was withheld as attorney work- product. Therefore, two documents must be reviewed on the basis that they were withheld as attorney work-product, the “Note for Retained Copies” and the Long Memorandum. The other six documents were withheld on the grounds that they were deliberative and pre- decisional.

B. Attorney Work-Product Documents

Exemption 5 protects “inter-agency or intra-agency memorandums or letters which would not be available by law to a party . . . in litigation with the agency.” 5 U.S.C. § 552(b)(5). The language of Exemption 5 has been construed to “exempt those documents, and only those documents, normally privileged in a civil discovery context.” NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 149 (1975) (Sears). The attorney work-product privilege serves to “provide working attorneys with a ?zone of privacy’ within which to think, plan, weigh facts and evidence . . . , and prepare legal theories.” Coastal States Gas Corporation v. Department of Energy, 617 F.2d 854, 864 (D.C. Cir. 1980) (Coastal States). It protects documents prepared by an attorney in contemplation of litigation. Hickman v. Taylor, 329 U.S. 495, 509-10 (1947); Fed. R. Civ. P. 26(b)(3). This privilege is also applicable to material prepared by a non-attorney who was supervised by an attorney. Nishnic v. Department of Justice, 671 F. Supp. 771, 772-73 (D.D.C. 1987). Finally, because factual work-product is not “routinely” or “normally” discoverable, it can also be protected under Exemption 5. See United States v. Weber Aircraft Corp., 465 U.S. 792, 799 (1984) (Weber); FTC v. Grolier, 462 U.S. 19, 26 (1983) (Grolier).

The first document we must review is the “Note for Retained Copies.” The description of this document is nothing more than its title. The lack of a full description renders it difficult to determine its nature. A document must be described with enough specificity to allow the requester (1) to ascertain whether the claimed exemptions reasonably apply to the documents and (2) to formulate a meaningful appeal. See Paul W. Fox, 25 DOE ¶ 80,150, at 80,622 (1995), citing James L. Schwab, 22 DOE ¶ 80,164 (1992); Harold Fine, 17 DOE ¶ 80,136 at 80,588 (1988); Arnold & Porter, 12 DOE ¶ 80,108 at 80,527 (1984). Generally, a description is adequate if each document is identified by a brief description of the subject matter it discusses and, if available, the date upon which the document was produced and its authors and recipients. The description need not, however, contain information that would compromise the privileged nature of the document. Arnold & Porter, 12 DOE at 80,527. A determination must also adequately justify the withholding of a document by explaining briefly how the claimed exemption applies to the document. Id.; Paul W. Fox, 25 DOE at 80,622. With the exception of providing the name of the “Note,” none of the other descriptive items required by the Arnold & Porter decision were provided in the determination letter. More importantly, Rocky Flats failed to provide any explanation of how the attorney work-product privilege applies to the “Note.” Rocky Flats has failed to include a specific description of the “Note” in its Determination Letter. Rocky Flats provided our Office with a copy of the “Note” and we have reviewed it. Although we agree with Rocky Flats that it contains attorney work-product, we will remand the matter to Rocky Flats for a better description of this document and an explanation of how the privilege applies to the “Note.”

Likewise, the Memorandum from James D. Long, Jr., to Mary Hammack, dated June 23, 1997, contains attorney work-product information. We believe this document is properly identified by its title. As we stated previously, the description need not contain information that would compromise the privileged nature of the document. But a determination must adequately justify the withholding of a document by explaining briefly how the claimed exemption applies to the document. Arnold & Porter, 12 DOE at 80,527; Paul W. Fox, 25 DOE ¶ 80,150 (1995). Again, Rocky Flats has failed to provide any explanation of how the attorney work-product privilege applies to this document. Therefore, we will also remand this document to Rocky Flats for similar considerations.

C. Deliberative Process and Predecisional Documents

Included within the boundaries of Exemption 5 is the "predecisional" privilege, sometimes referred to as the "executive" or "deliberative process" privilege. Coastal States, 617 F.2d at 862. The predecisional privilege permits the agency to withhold records 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) (Mink); Kaiser Aluminum & Chemical Corp. v. United States, 157 F. Supp. 939 (Ct. Cl. 1958).

In order to be shielded by Exemption 5, a record 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 predecisional privilege of Exemption 5 covers records that typically reflect the personal opinion of the writer rather than the final policy of the agency. Id. Consequently, the privilege does not generally protect records containing purely factual matters.

There are, however, exceptions to these general rules that factual information should be released. The first exception is for records in which factual information was selected from a larger collection of facts as part of the agency's deliberative process, and the release of either the collection of facts or the selected facts would reveal that deliberative process. Montrose v. Train, 491 F.2d 63 (D.C. Cir. 1974); Dudman Comms. v. Department of Air Force, 815 F.2d 1564 (D.C. Cir. 1987). The second exception is for factual information that is so inextricably intertwined with deliberative material that its exposure would reveal the agency's deliberative process. Wolfe v. HHS, 839 F.2d 769, 774-76 (D.C. Cir. 1988). Factual matter that does not fall within either of these two categories does not generally qualify for protection under Exemption 5.

In addition to providing categories of records exempt from mandatory disclosure, 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). Thus, if a document contains both predecisional matter and factual matter that is not otherwise exempt from release, the factual matter must be segregated and released to the requester.

Rocky Flats withheld six documents because they contain information that is predecisional and part of the deliberative process. We have also been provided with copies of those documents. We have reviewed these documents and believe that they were properly withheld under Exemption 5. These documents demonstrate the normal frank and independent discussions that occur in making governmental decisions. However, we also believe that they contain factual information that could be segregated and released to the requester. For example, the first document listed in the Determination is a “Status Sheet, which contains documented conversations, telephone calls and electronic mail concerning” the FOIA Request. Determination Letter at 2. Some of the information contained in this document is nothing more than dates. This information could be segregated and released. Another line indicates that a telephone call was received and from whom, information that could be segregated and released. Therefore, we will remand the withheld documents to Rocky Flats. On remand, Rocky Flats shall review the documents and segregate and release all factual portions of them or issue a new determination that justifies their withholding.

III. THE PUBLIC INTEREST

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. R.E.V. ENG Services argues that discretionary release would be in the public interest. Appeal Letter at 4.

Despite the fact that Rocky Flats need not segregate the factual material in a document that is protected by the attorney work-product privilege, we believe that Rocky Flats should release the factual information in both the “Note” and the Memorandum. The Attorney General has indicated that whether or not there is a legally correct application of an exemption, it is the policy of the Department of Justice to defend the assertion of a FOIA exemption only in those cases where the agency articulates a reasonably foreseeable harm to an interest protected by that exemption. Memorandum from the Attorney General to Heads of Departments and Agencies, Subject: The Freedom of Information Act (October 4, 1993) at 1, 2 (Reno Memorandum). The factual information can be released without foreseeable harm to the agency, even though it would not “normally” or “routinely” be discoverable in litigation. Portions of the “Note” are factual information that could easily be segregated and released to R.E.V. ENG Services without adversely harming the interest protected by the attorney work-product privilege. One such portion is a discussion of a statute and its requirements. Therefore, we will remand both the “Note” and the Memorandum to Rocky Flats to segregate and release the factual information or to provide justification sufficient to articulate a reasonably foreseeable harm in releasing any portion of either document. In regard to the documents withheld under the deliberative process privilege, since we are remanding this matter to Rocky Flats, we will not review those documents to determine whether the information should be released because it is in the public interest to do so. On remand, Rocky Flats should also review the documents to determine if it would be in the public interest to release any information that could be properly withheld.

IV. CONCLUSION

Rocky Flats properly withheld the documents under the Exemption 5 deliberative process and attorney work-product privileges, even though it did not identify which privilege it was using for each document. We have clarified that only the “Note for Retained Copies” and the Long Memorandum were withheld under the attorney work-product privilege. We are remanding this matter to Rocky Flats to provide a better description of these two documents and how the attorney work-product privilege applies to them. We are also remanding these two documents for Rocky Flats to segregate the factual information within them or issue a new determination that justifies their withholding. The other six documents were withheld under the deliberative process privilege. Again, Rocky Flats did not segregate the factual material from any of these documents. We will remand the matter for Rocky Flats to review the documents, and segregate and release all factual portions of them or issue a new determination that justifies their withholding.

It Is Therefore Ordered That:

(1) The Appeal filed by R.E.V. ENG Services, on September 6, 2000, Case No. VFA-0605, is hereby granted as set forth in Paragraph (2) below.

(2) This matter is hereby remanded to the Rocky Flats Field Office of the Department of Energy, which shall issue a new determination in accordance with the instructions set forth above.

(3) This is a final Order of the Department of Energy from which any aggrieved party may seek judicial review pursuant to the provision of 5 U.S.C. § 552(a)(4)(B). Judicial review may be sought either 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 4, 2000

(1)”The report is the subject of two pending Appeals with the Office of Hearings and Appeals, Case Nos. VFA-0600 and VFA-0604. It will not be addressed in this Decision.