Fine v. US DEPT. OF ENERGY

• Decision Date: 29 March 1993
• Docket Number: No. Civ-88-1033-JB,Civ-89-0031-JP.,Civ-88-1033-JB
• Citation: 823 F. Supp. 888
• Parties: Harold R. FINE, Plaintiff, v. UNITED STATES DEPARTMENT OF ENERGY, OFFICE OF INSPECTOR GENERAL, Defendant.
• Court: U.S. District Court — District of New Mexico

823 F. Supp. 888

Harold R. FINE, Plaintiff, v. UNITED STATES DEPARTMENT OF ENERGY, OFFICE OF INSPECTOR GENERAL, Defendant.

Nos. Civ-88-1033-JB, Civ-89-0031-JP.

United States District Court, D. New Mexico.

March 29, 1993.

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Duff Westbrook, Albuquerque, NM, for plaintiff.

Jan Elizabeth Mitchell, Asst. U.S. Atty., Albuquerque, NM, for defendant.

MEMORANDUM OPINION AND ORDER

BURCIAGA, Chief Judge.

THIS MATTER is before the Court for an in camera inspection of documents ordered by the Court in Memorandum Opinion and Orders of May 3, 1991 and June 25, 1991.

Plaintiff Harold R. Fine, while Assistant Manager for the Western Region of United States Department of Energy, Office of Inspector General ("DOE/OIG"), claimed that a contract procurement process was manipulated in favor of the accounting firm of Peat, Marwick and Main. Mr. Fine discussed this concern with others and was orally admonished for doing so. Later, however, the admonishment was rescinded.

Subsequently, Mr. Fine requested, pursuant to the Freedom of Information Act ("FOIA") 5 U.S.C. § 552 (1977), any information that the DOE/OIG had regarding the contract procurement process, the investigation of Plaintiff and documents regarding various personnel actions involving Plaintiff.

In this action, Plaintiff appeals Defendant DOE/OIG's decision to withhold, in whole or in part, the documents sought. In its Memorandum Opinion and Order of May 3, 1991, the Court ordered Defendant submit for in camera inspection Documents 3, 7, 8, 9, 11, 12, 13, 15, 16, 17, 20, 22, 28, 31, 34, 39, 41 and 43. The Court ordered documents 1, 5, 6, 8, 10, 13, 14, 15, 20, 22, 25, 27, 28, 29, 30, 31, 32, 34, 35, 36, 39, 40, 41, 44, 45, 53A, 59, 60, 61, 63, 66, 67, 68, 71, 91, 95, 97, 114, 121, 127, 129, 131, 135 and 144 submitted for in camera inspection on June 25, 1991.

I. STANDARD OF REVIEW

This Court reviews de novo any administrative claim of exemption. 5 U.S.C. § 552(a)(4)(B); Johnson v. U.S. Dep't of Justice, 739 F.2d 1514, 1516 (10th Cir.1984). Defendant bears the burden of proof that a claimed exemption applies. 5 U.S.C. § 552(a)(4)(B). Finally, disclosure, not secrecy, is the dominant objective of the FOIA. Department of Air Force v. Rose, 425 U.S. 352, 361, 96 S.Ct. 1592, 1599, 48 L.Ed.2d 11 (1976).

II. EXEMPTION 6

A. Background

Exemption 6 protects "personnel 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) (1977).

A challenge to an agency's withholding of documents based on Exemption 6 requires the Court employ a three prong test: (1) is the information sought to be found in personnel, medical, or similar files; (2) would disclosure of the information constitute an invasion of personal privacy; and (3) does the severity of the invasion of personal privacy outweigh the public interest in disclosure? DePlanche v. Califano, 549 F.Supp. 685, 689 (W.D.Mich.1982).

The language "clearly unwarranted" requires balancing a cognizable individual privacy interest against the public benefit in disclosure. Department of Air Force v. Rose, 425 U.S. 352, 96 S.Ct. 1592, 48 L.Ed.2d 11 (1976). The basic concern of the FOIA is making available information that an informed electorate needs to properly monitor the activities of the federal government. Ditlow v. Schultz, 517 F.2d 166, 172 (D.C.Cir. 1975). If the personal privacy interest and public benefit from disclosure balance with equal weight, the documents should be disclosed because of the FOIA's presumptions favoring public disclosure. Board of Trade v. Commodity Futures Trading Comm'n, 627 F.2d 392 (D.C.Cir.1980).

In considering the public benefit side of the balance, the focus is on general public need for the information, not the needs of the individual requester. U.S. Dep't of Justice v. Reporters Comm. For Freedom of the Press, 489 U.S. 749, 109 S.Ct. 1468, 103 L.Ed.2d 774 (1989). Information about private citizens that reveals "little or nothing about an agency's own conduct" does not further the purpose of the FOIA. Id. at 773, 109 S.Ct. at 1481. "Official information that sheds light on an agency's performance of its statutory duties falls squarely" within the FOIA's purpose. Id.

In considering whether an invasion of personal privacy will result, the adverse effects of disclosure on the job or personal status of the individual must be determined. L & C Marine Transp. Ltd. v. United States, 740 F.2d 919 (11th Cir.1984). Personal facts, the public disclosure of which could subject the person to whom they pertain to "embarrassment, harassment, disgrace, loss of employment or friends" is needed for Exemption 6. Brown v. F.B.I., 658 F.2d 71, 75 (2d Cir.1981).

Courts are required to segregate exempt portions of documents from those portions which are not exempt. 5 U.S.C. § 552(b). "Redaction cannot eliminate all risks of identifiability, as any human approximation risks some degree of imperfection, and the consequences of exposure or identity can admittedly be severe." Department of Air Force v. Rose, 425 U.S. 352, 381, 96 S.Ct. 1592, 1608, 48 L.Ed.2d 11 (1976).

B. Defendant's Use of Exemption 6

Defendant consistently justifies invoking Exemption 6 by claiming that disclosure of the document in question would subject the author and/or persons mentioned in the document to possible harassment or intimidation by plaintiff. Further, in all the documents, defendant found that the privacy interests of the author and/or persons mentioned outweigh the "minimal, if any public interest" in release.

Where a person's fear of reprisals from the subject of a communication is "reasonable" based on either demonstrated fact or inferences supported by reasonable claims, privacy interests support the application of Exemption 6. Holy Spirit Ass'n For the Unification of World Christianity v. F.B.I., 683 F.2d 562, 565 (D.C.Cir.1982). In Holy Spirit Association, plaintiff sought release of letters describing "bizarre and possibly illegal activities" in which the writers suspected plaintiff of being engaged. Id. at 565. These activities supported the writers's fears of reprisal and justified withholding the letters under Exemption 6. Id. See also Church of Scientology v. U.S. Dep't of State, 493 F.Supp. 418 (D.D.C.1980) (plaintiff's practice of harassing its "suppressors" justified invoking Exemption 6).

Defendant has offered neither facts nor supported inferences tending to show plaintiff might be inclined to harass or intimidate persons. Plaintiff is no longer employed by the defendant so he is not in a position on-the-job to harass or intimidate employees of DOE/OIG and/or its contractors. The Court, therefore, does not find justifiable defendant's repeated invoking of Exemption 6 to prevent harassment or intimidation by plaintiff.

Further, the Court finds in general that the public interest in release is more than "minimal" as claimed by defendant. The documents sought shed light on defendant's performance of its contract procurement duties, thus furthering public oversight of agency activities.

Exemption 6 is unique among all the exemptions to the FOIA in containing the "clearly unwarranted" standard. This qualification was a "considered and significant determination" by Congress. Rose, 425 U.S. at 378, n. 16, 96 S.Ct. at 1608, n. 16. Thus, Exemption 6 is a narrow one for the agency. It is not enough for an agency to allege that some minimal invasion of privacy will occur. Ditlow, 517 F.2d at 170. "Exemption 6 was directed at threats to privacy interests more palpable than mere possibilities." Rose, 425 U.S. at 380, n. 19, 96 S.Ct. at 1608, n. 19.

C. Documents Withheld Pursuant to Exemption 6 Documents Ordered For In Camera Review in June 25, 1991 Order Document 1

Defendant withheld in their entirety twenty pages of personal notes describing conversations the author had with plaintiff and other individuals.

Analysis:

The Court rejects withholding this document in its entirety. First, the withheld material contains no personal details about any individual and release would not have a significant adverse effect on the job or personal status of an individual. Second, defendant's allegations of possible reprisal by plaintiff are unsupported and unpersuasive to the Court. However, protecting a person from possible harassment, is not the only purpose behind Exemption 6. Protecting individuals from a "wide range of embarrassing disclosures" is the aim of Exemption 6. Rural Housing Alliance v. U.S.D.A., 498 F.2d 73, 77 (D.C.Cir.1974); Campbell v. Civil Service Commission, 539 F.2d 58 (10th Cir. 1976). It is possible that persons making certain statements to the author of this document would be embarrassed about their disclosure to plaintiff.

Accordingly, in balancing individual privacy interests against the general disclosure principle of the FOIA, the Court orders release of Document 1 subject to the deletions noted by the Court.

Document 5

Defendant released a six-page diary of recollections of conversations with plaintiff deleting the names of the author and individuals mentioned as well as identifying information.

Analysis:

The Court finds that defendant has withheld factual information in addition to identifying material. Regarding defendant's stated purpose of protecting the author, it should be noted that plaintiff has existing knowledge of the author of Document 5. See Affidavit of Harold Fine in Support of Plaintiff's Response to Defendant's Motion for Summary Judgment, July 2, 1990 p. 18.

Therefore, the Court orders release of document 5 subject to the deletions noted by the Court.

Document 6

This document is the handwritten version of document 5. The Court orders release of document 6 subject to the same deletions as document 5. Plaintiff has pre-existing knowledge of the...