FIA-22-0015 - In the Matter of Simon Edelman

On May 23, 2022, the Office of Hearings and Appeals (OHA) granted in part and denied in part a Freedom of Information Act (FOIA) appeal filed on behalf of Simon Edelman (Appellant) concerning a request made to the Department of Energy's (DOE) Office of Inspector General (OIG) for records related to a complaint alleging reprisal for revealing ethical violations and corruption by a former Secretary of Energy. Appellant's current FOIA request concerned a prior FOIA/Privacy Act request for similar documents related to the same complaint of retaliation that Appellant previously made to OIG in 2018. On Appeal, Appellant challenged OIG's application of Exemptions 5, 6 and 7(c) for some of the documents and asserted that DOE failed to produce responsive documents in a timely fashion. After review, OHA found that OIG had informed the Appellant in its partial determination letter and in its final determination letter that it was conducting an ongoing search for responsive documents and that DOE Headquarters was planning to provide the documents to Appellant on a continuous basis as it received them and after they completed their review regarding releasability . DOE had not yet denied a request for records in whole or in part, nor had DOE stated that there are no documents responsive to the request. Therefore, OHA determined that the circumstances for an administrative appeal did not exist as to the documents that Appellant alleged were not timely provided to him by DOE, and OHA dismissed this portion of the Appeal. In addition, OHA reviewed the redacted portions of specific records that were challenged in the Appeal.  OHA determined that the redacted material from the specific documents was exempt from disclosure under the deliberative process privilege of Exemption 5, and moreover, some of those same withholdings were also protected by the attorney-client privilege and attorney work-product privilege of Exemption 5. OHA also found that OIG had properly withheld the names and personal identifying information pursuant to Exemptions 6 and 7(c) in a specific document challenged in the appeal. Accordingly, OHA denied the appeal in all other respects. OHA Case No. FIA-22-0015