On May 12, 2022, the Office of Hearings and Appeals (OHA) granted in part the Freedom of Information (FOIA) Appeal filed by Joe Smyth, through counsel, from a final determination letter (Determination Letter) issued by the Department of Energy's Office of Public Information (OPI). On Appeal, the Appellant argued the agency failed to adequately explain why it made redactions pursuant to Exemption 5, that it did not correctly apply Exemption 5 to the redacted emails, and that it did not correctly apply the foreseeable harm standard.
An examination of the Determination Letter revealed that the letter (1) adequately described the results of searches; (2) clearly indicated which information was withheld; and (3) specified the exceptions or exemptions under which information was withheld.
An examination of the redacted emails revealed that these emails consisted of exchanges between DOE employees, were drafted and exchanged in relation to DOE decisions, and evidenced a deliberative nature. However, portions of Document 6 were incorrectly redacted, as it consisted of public information. In making the argument that the agency withheld information in a manner inconsistent with Exemption 5, the Appellant also argued that even assuming portions of the documents are in fact subject to the deliberative process privilege, there was information in the redacted portions that could have been released. An examination of the contents of the emails revealed that any potentially releasable portions of the emails at issue were inextricably intertwined with the Exemption 5 protected information such that segregation is not possible.
The Appellant argued that the DOE did not state with particularity the foreseeable harm that would result if the redacted portions were released. In making the argument, the Appellant cited cases where courts were tasked with determining whether the agency appropriately applied the FOIA exemptions based on items like affidavits and Vaughn indices. Agencies are not required to provide items like affidavits and Vaughn indices when initially responding to FOIA requests. Given the nature of the potential harm to the decision-making process that could occur when those providing advice may be inhibited if their frank opinions could be made public, OHA found that the DOE met the foreseeable harm standard. OHA Case No. FIA-22-0014