On July 5, 2022, the Office of Hearings and Appeals (OHA) granted in part the Freedom of Information (FOIA) Appeal filed by William Gagner from a final determination letter ( Determination Letter) issued by the Department of Energy's Office of Science Consolidated Service Center (OSCSC). On Appeal, the Appellant argued the agency failed to adequately explain why it made redactions pursuant to Exemption 4 and 5, and that it did not correctly apply Exemptions 4 and 5 to the redacted documents.
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 insofar as it concerned Exemption 5. However, as it related to the explanation provided for the Exemption 4 redactions, the Determination Letter was inadequate, as it did not employ wording consistent with the legal precedent, as established by Argus Leader, that the "competitive-harm" test should no longer be applied in determining whether information is "confidential." Accordingly, the matter was remanded so that OSCSC could reconsider the explanation it provided in the Determination Letter, in light of relevant legal requirements, in order for the Appellant to assess whether OSCSC had a sufficient basis to apply Exemption 4.
The Appellant argued the DOE and the Contractor had previously agreed on how and when the DOE would treat information from UT-Battelle as confidential. As the documents in question were not marked "proprietary" or "confidential" pursuant to their agreement, there was nothing indicating the Contractor treated the information as confidential. Additionally, there was no indication that the DOE provided assurances of confidentiality to the Contractor at the time the information was submitted to the DOE. An examination of materials provided to OHA indicated that the information in question consisted of financial information that is kept confidential and not released to the public. Further, the information in question is transmitted to the DOE in confidence. Accordingly, the information was customarily and actually treated as private. Regarding the matter of whether the DOE provided an assurance of confidentiality when the Contractor submitted the information, it was determined that the contract between the Contractor and the DOE indicates the financial information was a contractor-owned record. Accordingly, there was an expectation that the information would not be released. This created an implied assurance of privacy at the time the Contractor submitted the information. OHA concluded that Exemption 4 was appropriately applied to the redacted information contained in the responsive documents.
Regarding Exemption 5, the Appellant argued that based on the context of the email containing the redaction, there was no indication a "legal" or "policy" decision was being made. An examination of the redaction that was made pursuant to Exemption 5 revealed that the email was drafted by a DOE employee and sent for the purpose of seeking more information, reflecting the "give-and-take" contemplated by the exemption. It was also determined that the email in question was sent in relation to a decision pertaining to an annual financial report. Accordingly, OHA determined that Exemption 5 was appropriately applied to the document in question. (OHA Case No. FIA-22-0018)