Case No. VFA-0567, 27 DOE ¶ 80,273 April 21, 2000

DECISION AND ORDER

OF THE DEPARTMENT OF ENERGY

Appeal

Name of Petitioner: Barbara Schwarz

Date of Filing: March 27, 2000

Case Number: VFA-0567

On March 27, 2000, Barbara Schwarz filed an Appeal from a determination by the Department of Energy Headquarters Freedom of Information and Privacy Group (DOE/FOI). This determination responded to a request for information filed under the Freedom of Information Act (FOIA), 5 U.S.C. § 552, as implemented by the Department of Energy (DOE) in 10 C.F.R. Part 1004.

The FOIA generally requires that documents held by the federal government be released to the public upon request. 5 U.S.C. § 552(a)(6)(A). However, Congress has provided nine exemptions to the FOIA setting forth the types of information agencies are not required to release. 5 U.S.C. § 552(a)(6)(B). 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 in the public interest. 10 C.F.R. § 1004.1.

I. Background In a request dated June 18, 1999, Ms. Schwarz requested from the DOE documents within the following categories:

1) As to that the Germans are behind the nuclear weapons and other weapons of nations that are hostile to the United States,

2) As to that the Germans are behind terror acts and wars against the United States or against other countries which the United States want to protect,

3) As to a civilian submarine in the Great Salt Lake, that protects it's [sic] residents from all kind of pollution and germs with the result that people stay young and have currently at least double the lifespan than people not living in this village,

4) As to L. Ron Hubbard and proposed energy programs and environmental programs and nuclear counterintelligence programs proposed by him,

5) As to Claude, Elizabeth, Phillip, Mark C., Harvey L., Edwin, Willard, Olivia Rathbun (de Rothschild) and proposed energy programs, environmental programs and nuclear counterintelligence programs proposed by them,

6) As to myself, Barbara Schwarz or misspelled version Schwartz,

7) As to if Mark C. Rathbun (de Rothschild)[,] members of his family, their attorneys or any Independent or Special Counsel inquired records pertaining to myself from the Dept. of Energy.

Letter from Barbara Schwarz to DOE (June 18, 1999).

On October 20, 1999, DOE/FOI sent a response to Ms. Schwarz. DOE/FOI first stated that it had informed Ms. Schwarz in a July 19, 1999 letter that items 1 and 2 of her request "did not describe the records you were requesting with sufficient specificity for the DOE to conduct a search for responsive documents. This response, therefore, responds to items 3, 4, 5, 6 and 7 of your request." Letter from Abel Lopez, Director, DOE/FOI (October 20, 1999). The response then informed Ms. Schwarz that the

files of five offices at Headquarters were searched for documents responsive to your request. These offices were the Office of Congressional and Intergovernmental Affairs, the Policy, Standards and Analysis Division in the Office of Safeguards and Security, the Office of Headquarters and Executive Personnel Services, the Office of Inspector General, and the Office of the Deputy General Counsel for Litigation.

Id. DOE/FOI reported that (1) the searches of the first three offices listed produced no documents responsive to items 3 through 7 of her request; (2) DOE/IG has already provided a separate response to Ms. Schwarz; and (3) the search of the Office of the Deputy General Counsel for Litigation located only one document, the July 19, 1999 letter to Ms. Schwarz referred to above regarding the lack of specificity of the first two items of her request. Id. That document was provided to Ms. Schwarz in its entirety along with DOE/FOI's October 20, 1999 response.

Ms. Schwarz filed an Appeal on November 2, 1999, contending that the DOE's search for documents responsive to her request was inadequate. She also took issue with the DOE/FOI's opinion that items 1 and 2 of her request did not sufficiently describe the records she was seeking. On December 2, 1999, we issued a decision on the Appeal, in which we remanded the matter to DOE/FOI to coordinate further searches of the Office of Safeguards and Security (OSS) and the Office of Headquarters and Executive Personnel Services for documents responsive to items 3 through 7 of her request, and to invite Ms. Schwarz to confer with knowledgeable DOE personnel in an attempt to clarify her description of the documents she was seeking in items 1 and 2 of her request.

On March 9, 2000, DOE/FOI issued a new determination to the Appellant. DOE/FOI stated that a further search by the OSS located 40 responsive documents, which DOE/FOI enclosed with its determination. Letter from Abel Lopez, Director, DOE/FOI, to Barbara Schwarz (March 9, 2000). DOE/FOI deleted information from five of the documents, citing Exemption 6 of the FOIA, 5 U.S.C. § 552(b)(6). Id. The additional search by the Office of Headquarters and Executive Personnel Services, however, located no responsive documents. Id. at 2. The determination by DOE/FOI also reported the results of searches for documents responsive to items 1 and 2 of the request, by the Office of International Affairs, the Office of Security and Emergency Operations, and the History Division of the Office of the Executive Secretariat. Of these searches, only that conducted by the History Division of the Office of the Executive Secretariat revealed a potentially responsive document, which was released to the Appellant in its entirety. Id. at 2-3. The present Appeal challenges DOE/FOI's withholding of information under Exemption 6 as well of the adequacy of searches reported in DOE/FOI's March 9 determination letter.(1)

II. Analysis A. DOE/FOI's Withholding of Information Under FOIA 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 a record 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). 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 Fin. Management Serv., 884 F.2d 1446, 1451 (D.C. Cir. 1989), cert. denied, 493 U.S. 1056 (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. Reporters Committee, 489 U.S. at 762-70.

In its March 9 determination, DOE/FOI stated that it deleted from certain documents released to the Appellant the "names of individuals who held security clearances or who were subject to security investigations . . . ." Letter from Abel Lopez, Director, DOE/FOI, to Barbara Schwarz (March 9, 2000) at 1. From our review of the documents, it appears that certain information regarding two employees of Atomic Energy Commission (AEC, a predecessor agency to the DOE)(2) contractors was brought to the attention of AEC Personnel Security officials in 1968. This information concerned the two AEC contractor employees' connections to the Hubbard College of Scientology. Redacted from the documents released to the appellant are the names of the two persons, as well as other information that could identify them.

We have no doubt that these two individuals have a significant privacy interest in preventing the public release of their identities in this context, as the Supreme Court has recognized under Exemption 6 the privacy interests of the subjects of official inquiries. Department of Air Force v. Rose, 425 U.S. 352 (privacy interests of Air Force Academy cadets subject to honor and ethics inquiries); Church of Scientology v. United States Dep't of the Army, 611 F.2d 738, 747 (9th Cir. 1979) ("A reasonable person would be very likely to find that disclosure of religious affiliations and activities would constitute an invasion of his or her privacy.").(3)

As for whether release of the information withheld would further the public interest by shedding light on the operations and activities of the Government, the Appellant argues,

Disclosure of [information withheld under] Exemption 6 would be very well in [the] public interest, because the time showed that L. Ron Hubbard and also some other scientologists were target[s] of libel and slander by a German oriented, German originated and German controlled Nazi-conspiracy, in which also U.S. officials participated.

Appeal at 2. We disagree. The information already released to the appellant clearly sheds light on the operation and activities of the Government in investigating AEC contractor employees with connections to Scientology organizations. However, the information withheld from those documents, the names of the individuals investigated and other information that could identify them, says little if anything about the activities of the Government. Weighing the significant privacy interests at stake on one hand, and the slight public interest on the other, we conclude that Exemption 6 was properly applied to the information withheld from Ms. Schwarz.

B. Adequacy of DOE's Search for Responsive Documents We have stated on numerous occasions that a FOIA request deserves a thorough and conscientious search for responsive documents, and we have not hesitated to remand a case where it is evident that the search conducted was in fact inadequate. See, e.g., Butler, Vines and Babb, P.L.L.C., 25 DOE ¶ 80,152 (1995). The FOIA, however, requires that a search be reasonable, not exhaustive. "[T]he 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. Department of State, 779 F.2d 1378, 1384-85 (8th Cir. 1985); accord Weisberg v. Department of Justice, 745 F.2d 1476, 1485 (D.C. Cir. 1984). In cases such as these, "[t]he issue is not whether any further documents might conceivably exist but rather whether the government's search for responsive documents was adequate." Perry v. Block, 684 F.2d 121, 128 (D.C. Cir. 1982). In order to determine whether the search conducted by these offices was adequate under the FOIA, we contacted each office and requested information as to how it went about its search.

1. Search on Remand for Documents Responsive to Items 3 Through 7 of Ms. Schwarz's Request

As discussed above, in a December 2, 1999 decision on an earlier Appeal filed by Ms. Schwarz, we remanded the matter to DOE/FOI to coordinate further searches of the Office of Safeguards and Security (OSS) and the Office of Headquarters and Executive Personnel Services for documents responsive to items 3 through 7 of her request.

In response to our query, OSS provided the following information as to the search it conducted. First, the office determined that

any document responsive to Ms. Schwarz' request would be found in a search of our Central Personnel Clearance Index (CPCI); our clearance records on microfiche that cover all clearances or individuals considered for clearances, extending back to the . . . late 1940's; and this office's Information Management Center (IMC), which contains correspondence and records covering the information and subjects that Ms. Schwarz asked about.

. . . Please be advised that the CPCI records were searched electronically and the microfiche records were searched manually. The records in IMC were searched both electronically and manually.

Memorandum from Lynn Gebrowsky, Policy Standards and Analysis Division, OSS, to Steven Goering, OHA (April 13, 2000).

The Office of Headquarters and Executive Personnel Services searched its Senior Executive Performance Appraisal Records in the Executive and Technical Resource Division; Lending Library files and records in the Career Management Resource Center; Computer database, office files and old office records in the Employment and Classification Division; Medical records and files, performance, conduct, leave, and family-friendly records and requests (e.g., leave transfer) in the Employee and Labor Relations Division; and Correspondence files. In each of these areas, the Office conducted a manual search of office files, and an automated search of computer hard drives by all staff members in all existing software applications. The office also performed a name search of its computerized Corporate Human Resources Information System (CHRIS) and Department of Energy Information Database (DOEInfo). Electronic mail from Marilyn Greene, Office of Headquarters and Executive Personnel Services, to Steven Goering, OHA (April 19, 2000).

2. Search for Documents Responsive to Items 1 and 2 of Ms. Schwarz's Request

Ms. Schwarz also challenges the adequacy of searches for documents responsive to items 1 and 2 of the request, by the Office of International Affairs, the Office of Security and Emergency Operations, and the History Division of the Office of the Executive Secretariat. These three offices provided the following information regarding their respective searches.

The Office of Security and Emergency Operations conducted a visual file search of all its internal files as well as an electronic query of the SOCOTS correspondence tracking system. Electronic mail from Pat Daly, Office of Security and Emergency Operations, to Steven Goering, OHA (April 19, 2000). The Office of International Affairs coordinated a search of its entire organization by "consultation with IA managers on whether they would have any documents relating to any terrorist acts or threats to the U.S. from any nation within their respective offices including employees under their supervision." Electronic mail from Nicole Chesley, Office of International Affairs, to Steven Goering, OHA (April 14, 2000). Finally, a historian in the History Division of the Office of the Executive Secretariat stated that she did not believe her division would have any documents responsive to the first two items of the Appellant's request, but nonetheless consulted an index that categorized by subject documents of the AEC Secretariat dating from 1958 through 1974. Memorandum of telephone conversation between Marie Hallion, Office of the Executive Secretariat, and Steven Goering, OHA (April 10, 2000).

Based on the above descriptions, we conclude that the searches conducted by all of the above offices were reasonably calculated to uncover the records sought by Ms. Schwarz. Though there was not one uniform search method used, each office clearly made a conscientious effort to locate all responsive documents it might have, either by notifying personnel of the request and asking them to provide responsive documents, or by searching indices, document tracking systems, and computer systems.(4)

In sum, because we find that DOE/FOI properly withheld information from the requester under Exemption 6, and that the DOE offices conducted adequate searches for documents responsive to Ms. Schwarz's request, the present Appeal should be denied.

It Is Therefore Ordered That:

(1) The Appeal filed by Barbara Schwarz, Case No. VFA-0567, is hereby denied.

(2) This is a final order of the Department of Energy from which any aggrieved party may seek judicial review. 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: April 21, 2000

(1) Ms. Schwarz also complains that DOE files contain mainly negative and untrue information about L. Ron Hubbard. However, the purpose of the FOIA is to provide access to documents the government has, not to ensure that the documents the government has are accurate or portray subjects in a positive light.

(2) The Appellant asks in her Appeal why the DOE has not conducted a search of the Atomic Energy Commission or the "Energy, Research and Development Office, . . ." Appeal at 2. The Energy Research and Development Administration (ERDA), like the AEC, is a predecessor agency to the DOE. As such, ERDA and the AEC no longer exist.

(3) Contrary to the argument of the Appellant, the death of L. Ron Hubbard has no relevance to whether the information was properly withheld under Exemption 6. Appeal at 2.

(4) Ms. Schwarz asserts in her Appeal that no DOE offices searched for documents responsive to items 3 through 7 of her request. Appeal at 1-2. This is not correct. As discussed in our December 2, 1999 decision on Ms. Schwarz's earlier Appeal, six DOE offices conducted searches in response to this portion of the appellant's request. Ms. Schwarz also specifically complains that the Office of International Affairs and the Office of Security and Emergency Operations only conducted searches for documents responsive to items 1 and 2 of her request. Appeal at 2. However, under the DOE FOIA regulations, the Freedom of Information Officer at any DOE location, in this case the Director of DOE/FOI at DOE Headquarters, has the authority to determine which office would have "responsibility for, custody of, or concern with the records requested." 10 C.F.R. § 1004.5(a). We can therefore safely assume that DOE/FOI forwarded the items of Ms. Schwarz's request to the offices it determined was most likely to have responsive documents. Further, we see no basis, and the appellant provides us none, to question the determination of DOE/FOI that the Office of International Affairs and the Office of Security and Emergency Operations would not have documents responsive to items 3 through 7 of her request.

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