Greg Long, Case No. VFA-0060, August 15, 1995
Case No. VFA-0060, 25 DOE ¶ 80,129 August 15, 1995 DECISION AND ORDER OF THE DEPARTMENT OF ENERGY Appeal Name of Petitioner:Greg Long Date of Filing:July 14, 1995 Case Number: VFA-0060 On July 14, 1995, Greg Long of Philomath, Oregon filed an Appeal from a determination issued on June 29, 1995 by the Albuquerque Operations Office (Albuquerque Operations) of the Department of Energy (DOE). That determination denied in part Mr. Long's request for information 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. This Appeal, if granted, would require the DOE to release the withheld information. The FOIA requires that agency records which are held by federal agencies, and which have not been made public in an authorized fashion by a covered branch of the federal government, generally be released to the public upon request. 5 U.S.C. § 552(a)(3). In addition to this requirement, the FOIA lists nine exemptions that set forth the types of information which may be withheld at the discretion of the agency. 5 U.S.C. § 5552(b)(1)-(b)(9). See also 10 C.F.R. § 1004. 10(b)(1)-(b)(9). The DOE regulations further provide that documents which may be exempt from mandatory disclosure will nonetheless be released to the public if 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 In a letter dated March 23, 1995, Mr. Long filed a FOIA request with Albuquerque Operations seeking two related categories of information. The first category concerns the investigation of a mysterious and unexplained "hum" reported by many people in and around Taos, New Mexico. In particular, Mr. Long noted that Sandia National Laboratory had been involved in exploring this phenomenon starting in 1991. The second category asks for documents in which Sandia personnel explored similar "hums" elsewhere in New Mexico. Albuquerque Operations reported to Mr. Long on June 29, 1995 that Sandia National Laboratory had provided one responsive record for each category. The first, the "Electromagnetic Test Report, Electromagnetic Investigation of the Taos Hum, Test Report, dated September 27, 1994," was released in its entirety. The second document, a draft report on "other possible sources of the Taos 'Hum.'" was withheld in its entirety. Albuquerque Operations explained that the report was never finalized because funding for the project had been terminated. Accordingly, Albuquerque Operations withheld the document under the deliberative process privilege of Exemption 5 of the FOIA on the grounds that the document contained preliminary opinions and findings which were never finalized. 5 U.S.C. § 552(b)(5); 10 C.F.R. § 1004.10(b) (5). Albuquerque Operations did provide Mr. Long with findings done by a team at the University of New Mexico who were working in conjunction with the Sandia National Laboratory team. Mr. Long has appealed the withholding of the draft report. II. Analysis Exemption 5 of the FOIA exempts from mandatory disclosure documents which are "[i]nter-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 section exempts "those documents, and only those documents, normally privileged in the civil discovery context." National Labor Relations Bd. v. Sears, Roebuck & Co., 421 U.S. 132, 149 (1975). Among these privileges is the "executive" or "deliberative process" privilege. This is the privilege that Albuquerque Operations relied upon in withholding information in this case under Exemption 5. The "executive" privilege shields from mandatory disclosure documents, advisory in nature, which are created during agency consideration of proposed action, and which are part of the decision-making process. Coastal States Gas Corp. v. Department of Energy, 617 F.2d 854, 866 (D.C. Cir. 1980). Thus, application of the privilege "under (b)(5) depends not only on the intrinsic character of the document itself, but also on the role it played in the administrative process." Lead Industries Assoc., Inc. v. Occupational Safety and Health Admin., 610 F.2d 70, 80 (2d Cir. 1979) (Lead Industries). As a result, to withhold an intra- or inter-agency document under the "executive" privilege of Exemption 5, it must be both predecisional, i.e., "antecedent to the adoption of agency policy," and deliberative, i.e., "it must actually be related to the process by which policies are formulated." Jordan v. Department of Justice, 591 F.2d 753, 773 (D.C. Cir. 1978). See also Assembly of California v. Department of Commerce, 968 F.2d 916, 920-21 (9th Cir. 1992); Formaldehyde Inst. v. Department of Health and Human Services, 889 F.2d 1118, 1122 (D.C. Cir. 1989). That is to say, a document must not only be prepared as part of agency consideration of some matter, it must also "bear on the formulation or exercise of policy-oriented judgment." Ethyl Corp. v. Environmental Protection Agency, 25 F.3d 1241, 1248 (4th Cir. 1994); Petroleum Info. Corp. v. Department of Interior, 976 F.2d 1429, 1435 (D.C. Cir. 1992); Playboy Enterprises v. Department of Justice, 677 F.2d 931, 935 (D.C. Cir. 1982). While the Albuquerque Operations determination in this case explains the first prong of this test, it does not address the second. Therefore, the determination does not adequately explain its basis for withholding and, we will remand this matter to Albuquerque Operations for a new, more detailed determination. In making a further determination in this case, Albuquerque Operations should also consider the fact that even if a document meets the criteria set forth above, the document may not be simply withheld in its entirety. The FOIA, as implemented by 10 C.F.R. § 1004.10, requires that "[a]ny 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). See The Oak Ridger, 21 DOE ¶ 80,120 at 80,564-65 (1991) (and cases cited therein); Boulder Scientific Co., 19 DOE ¶ 80,126 at 80,577 (1989) (and cases cited therein). In the context of the "executive" privilege of Exemption 5, this means that non-deliberative material ordinarily should be released to the requester. Environmental Protection Agency v. Mink, 410 U.S. 73, 87-91 (1972). The only exceptions to the command of segregation are where exempt and non-exempt material are so "inextricably intertwined" that release of the non-exempt material would compromise the exempt material, Lead Industries, 610 F.2d at 85, or where non-exempt material is so small and interspersed with exempt material that it would pose "an inordinate burden" to segregate it. Id. <1>In this case, it appears that no attempt was made to segregate and release non-exempt material. In addition, we note that the withheld document contains factual statements and graphs that do not appear to be deliberative. This non-exempt material should be released to Mr. Long. On remand, Albuquerque Operations should also consider whether Exemption 5 can be applied to this draft in a manner which is consistent with the guidance contained in the Memorandum from Janet Reno, Attorney General of the United States, to Heads of Departments and Agencies (October 4, 1993) (Reno Memorandum). See also Memorandum from William Jefferson Clinton, President of the United States, to Heads of Departments and Agencies, 29 Weekly Comp. Pres. Doc. (No. 40) 1999, 2000 (Oct. 11, 1993) (noting the importance of FOIA and its centrality to the Reinventing Government initiative). That memorandum indicates 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 reasonably foresees that disclosure would be harmful to an interest protected by that exemption. See Reno Memorandum, at 1, 2 (Oct. 4, 1993). As the Attorney General stated, an agency should withhold information "only in those cases where the agency reasonably foresees that disclosure would be harmful to an interest protected by that exemption. Where an item of information might technically or arguably fall within an exemption, it ought not be withheld from a FOIA requester unless it need be." Id. See also Mapother v. Department of Justice, 3 F.3d 1533, 1537-38 (D.C. Cir. 1993) (before agency attempts to withhold factual material under deliberative process privilege, withholding must be examined in light of goals and policies of privilege); Wolfe v. Department of Health and Human Services, 839 F.2d 768, 774 (D.C. Cir. 1988) (en banc) (same). Thus, the Attorney General's standard applies a presumption in favor of disclosure unless an agency articulates a reasonably foreseeable specific harm to a specific interest protected by an exemption. Albuquerque Operations should take account of the Attorney General's memorandum on remand. See U.S. Solar Roof, 25 DOE ¶ 80,112 at 80,530 (1995); William D. Lawrence, 24 DOE ¶ 80,139 at 80,599 (1994). It Is Therefore Ordered That: (1) The Freedom of Information Act Appeal filed by Greg Long of Philomath, Oregon, Case No. VFA-0060, is hereby granted in part as set forth in Paragraph (2) below, and denied in all other respects. (2) This matter is hereby remanded to the Director of the Office of Public Affairs of the Albuquerque Operations Office, who shall either release information or issue a new determination in accordance with the instructions 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 situated, or in the District of Columbia. George B. Breznay Director Office of Hearings and Appeals Date: August 15, 1995 <1>In addition, information which has been made available to the public ordinarily may not be withheld under Exemption 5 because the authorized release of such information generally constitutes a waiver of the application of the exemption. See United States v. Metropolitan St. Louis Sewer District, 952 F.2d 1040, 1045 (8th Cir. 1992); Lawyers Alliance for Nuclear Arms Control - Philadelphia Chapter v. Department of Energy, 766 F. Supp. 318, 322-23 (E.D. Pa. 1991); Wisconsin Project on Nuclear Arms Control, 22 DOE ¶ 80,109 at 80,517 (1992). On Apr 3, 4:47 pm, Trev <[email protected]> wrote: > That refusal to release the document on electrical effects > contributing to Hum tells a a lot. > It would be good to know the reasons so I'll have a sniff around. The > trouble is double negatives type data aren't really helpful and the > report is needed and should be released forthwith. > If people over there in the US can't get it no one else will, for > sure. > > On Mar 24, 9:30 am, "john dawes" <[email protected]> wrote: > > > > > In 1993 the US Government commissioned an official enquirery into the Hum > > which became known as the Taos Hum Investigation. > > > Scientists from two renowned national laboratories and universities, using > > the best available equipment, conducted an in-depth investigation lasting > > two years. > > > The investigation was conducted in two parts, the first was concerned with > > acoustic noise and vibration, the second part concentrated on electrical > > effects. > > > With the conclusion of the investigation two official reports were > > prepared, part one, which contained the results of the acoustic and > > vibration observations was published and made available for public > > scrutiny. The second report which contained measurements of electrical > > effects was not published, this report was classified as restricted and not > > available for public scrutiny. > > > Since the Taos Investigation several US citizens have attempted to see this > > second report using the US Freedom of Information Act but their requests > > were refused.. To my knowledge the second report is still classified and > > not available to the public. > > > It is most probable that the second report does indicate the source of the > > Hum and its implications regarding human health.- Hide quoted text - > > - Show quoted text - -- You received this message because you are subscribed to the Google Groups "Hum Sufferers" group. To post to this group, send email to [email protected]. To unsubscribe from this group, send email to [email protected]. For more options, visit this group at http://groups.google.com/group/hum-sufferers?hl=en.
