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Hq-2020-00188-F 0D\, 202 Ben J. Hulac CQ Roll Call 1201 Pennsylvania Avenue N.W. 7th Floor Washington, D.C. 20004 Via email: [email protected] Re: HQ-2020-00188-F Dear Mr. Hulac: This is a final response to the request for information that you sent to the Department of Energy (DOE) under the Freedom of Information Act (FOIA), 5 U.S.C. § 552. You requested the following: An inventory of gifts received by Energy Secretary Rick Perry during his tenure in that post. The scope of this request runs from when he took the job until today, Nov. 13, 2019. Please include the following data points in the inventory: a) Date when gift received b) Name of donor c) Organization donor represents d) Whether the donor is a lobbyist e) Whether the donor represents a foreign entity f) Description of gift g) Value of gift h) Determination of what happened to gift i) Location of gift On December 12, 2019, DOE provided you with previously released documents from January 2017 to July 2018. By accepting these documents as previously released, you agreed to waive your right to appeal prior redactions. Your request was assigned to DOE’s Office of Management (MA) to conduct a search of its files for responsive documents. MA started its search for this request on January 27, 2020, which is the cutoff date for responsive records. MA completed its search and identified one (1) responsive document. The document is being provided to you as described in the accompanying index. Upon review, DOE has determined that certain information contained within the record should be withheld pursuant to Exemptions 5, 6, 7(E), and 7(F) of the FOIA, 5 U.S.C. § 552(b)(5), (b)(6), (b)(7)(E), and (b)(7)(F). Exemption 5 protects from mandatory disclosure "inter-agency or intra-agency memorandums or letters that would not be available by law to a party other than an agency in litigation with the agency." 5 U.S.C. § 552(b)(5). Exemption 5 has been construed to exempt those documents normally privileged in the civil discovery context, such as attorney-client communications. The information withheld under Exemption 5 contains communications involving DOE attorneys and are being withheld under the attorney-client privilege. The information in this document contains confidential communications between DOE attorneys and the staff of the program office to which they provide legal advice. The attorney-client privilege protects a client's disclosure to an attorney and extends to an attorney's opinion based on those disclosures, and to communications between attorneys that reflect client-supplied information. Release of information exchanged between attorneys and clients would result in less open discussions between them, and attorneys would not be able to adequately advise and represent their clients. Sound legal advice and advocacy serves the public interest and such advice and advocacy depends upon attorneys being fully informed by their clients and being able to communicate with them. Such disclosure could have a chilling effect on the willingness of attorneys to make honest and open evaluations and recommendations in the future. For these reasons, discretionary disclosure of the information withheld under the attorney-client privilege is not being made. Disclosure would be harmful to the integrity of governmental decision making processes, and could stifle future communications between clients and attorneys. Thus, documents are being withheld in part under Exemption 5 of the FOIA. Exemption 6 is generally referred to as the “personal privacy” exemption; it provides that the disclosure requirements of FOIA do not apply to “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). In applying Exemption 6, the DOE considered: 1) whether a significant privacy interest would be invaded; 2) whether the release of the information would further the public interest by shedding light on the operations or activities of the Government; and 3) whether in balancing the privacy interests against the public interest, disclosure would constitute a clearly unwarranted invasion of privacy. The information withheld under Exemption 6 consists of names of private individuals, an email address, and other personal identifying information. This information qualifies as “similar files” because it is information in which an individual has a privacy interest. Moreover, releasing the information could subject the individuals to unwarranted or unsolicited communications or pose a threat to their safety. Since no public interest would be served by disclosing this information, and since there is a viable privacy interest that would be threatened by such disclosure, Exemption 6 authorizes withholding the information. Therefore, because of its personal and private nature, this information is being withheld under Exemption 6 of the FOIA. Exemption 7 protects from disclosure “records or information compiled for law enforcement purposes” that fall within the purview of one or more of six enumerated categories. 5 U.S.C. § 552(b)(7). To qualify under Exemption 7, the information must have been compiled, either originally or at some later date, for a law enforcement purpose, which includes crime prevention Page 2 of 5 and security measures, even if that is only one of the many purposes for compilation. or would disclose guidelines for law enforcement investigations or prosecutions if such disclosure could reasonably be expected to risk circumvention of the law.” 5 U.S.C. § 552(b)(7)(E). The information withheld under Exemption 7(E) consists of secured conference room numbers. That information was compiled for preventative law enforcement and/or security purposes to prevent future illegal acts in the form of cyber security intrusions. Because the redacted portions of the enclosed document contains information about DOE’s investigative techniques that could be used by an individual to obtain classified or sensitive information on DOE networks without authorization, we are withholding this information pursuant to Exemption 7(E). Exemption 7(F) protects information compiled for law enforcement purposes to the extent that its production “could reasonably be expected to endanger the life or physical safety of an individual.” 5 U.S.C. § 552(b)(7)(F). The exemption originally protected only law enforcement personnel but was amended to protect the safety of the individual. Furthermore, while Exemption 7(F) has historically been used to withhold names and other identifying information concerning individuals at risk of retaliation and harm, the plain language of the statute indicates that it can also be used to withhold any type of information that creates a risk of harm or retaliation to an individual, not just identifying information. For example, courts have upheld the use of Exemption 7(F) to protect information about security plans, maps, and other protection measures, release of which could enable anyone to more easily plan operations that would target such facilities. Information withheld pursuant to Exemption 7(F) consists of information on the locations of certain gift items. This information was compiled for preventative law enforcement and/or security purposes. Disclosure of this information runs the reasonably foreseeable risk of circumventing the law by allowing individuals to know the location of certain items. Furthermore, the release of this information would provide insight to DOE security measures, thereby increasing the risk of harm to individuals. Thus, we are withholding this information pursuant to Exemption 7(F). This satisfies the standard set forth at 5 U.S.C. § 552(a)(8)(A) that agencies shall withhold information under FOIA “only if (I) the agency reasonably foresees that disclosure would harm an interest protected by an exemption…; or (II) disclosure is prohibited by law…” 5 U.S.C. § 552(a)(8)(A) also provides that whenever full disclosure of a record is not possible, agencies shall “consider whether partial disclosure of information is possible…and (II) take reasonable steps necessary to segregate and release nonexempt information.” Therefore, we have determined that, in certain instances, a partial disclosure is proper. Pursuant to 10 C.F.R. §1004.7(b)(2), I am the individual responsible for the determination to withhold the information described above. The FOIA requires that “any reasonably segregable portion of a record shall be provided to any person requesting such record after deletion of the portions which are exempt,” 5 U.S.C. § 552 (b). As a result, a redacted version of the document is being released to you in accordance with 10 C.F.R. § 1004.7(b)(3). This decision, as well as the adequacy of the search, may be appealed within 90 calendar days from your receipt of this letter pursuant to 10 C.F.R. § 1004.8. Appeals should be addressed to Director, Office of Hearings and Appeals, HG-1, L’Enfant Plaza, U.S. Department of Energy, 1000 Independence Avenue, S.W., Washington, D.C. 20585-1615. The written appeal, including the envelope, must clearly indicate that a FOIA appeal is being made. You may also submit your Page 3 of 5 appeal by e-mail to [email protected], including the phrase “Freedom of Information Appeal” in the subject line (This is the method preferred by the Office of Hearings and Appeals.). The appeal must contain all the elements required by 10 C.F.R. § 1004.8, including a copy of the determination letter. Thereafter, judicial review will be available to you in the Federal District Court either (1) in the district where you reside, (2) where you have your principal place of business, (3) where DOE’s records are situated, or (4) in the District of Columbia. You may contact DOE’s FOIA Public Liaison, Alexander Morris, FOIA Officer, Office of Public Information, at 202-586-5955, or by mail at MA-46/Forrestal Building, 1000 Independence Avenue, S.W., Washington, D.C.
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