The opinion of the court was delivered by: GREEN
JOYCE HENS GREEN, District Judge.
This action concerns certain requests of plaintiff, Exxon Corporation ("Exxon"), under the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552 for records kept by defendant, the Department of Energy ("DOE"). At an earlier stage of this litigation, this Court, upon consideration of motions filed by both parties, ruled that Exxon's FOIA requests were "reasonably descriptive of materials sought" and ordered DOE to undertake a search for documents responsive to those requests.
Thereafter, DOE conducted a search for such documents. DOE identified over 3,000 documents responsive to the requests at issue, and released more than 2,500 to Exxon. DOE released segregable portions of many of the approximately 500 remaining documents, asserting that all withheld information was exempt from disclosure under FOIA Exemption 5 as "deliberative process" material. DOE further asserts that some of these documents are also privileged under that exemption as attorney work-product or attorney-client documents. Because DOE previously raised similar exemption claims for over 200 of these documents in its enforcement action against Exxon, United States v. Exxon Corp., Civil Action No. 78-1035, the parties stipulated that the releasability of those documents would be determined in that case. Therefore, the releasability of those documents is not at issue here. Consequently, 245 documents remained at issue at the time DOE filed the instant motion. Exxon's opposition challenges DOE's assertions of privilege with respect to most, but not all, of those.
The procedure by which DOE undertook its search and the grounds for its assertions of privilege are set forth in the affidavits of DOE attorney Bayle S. Weiner and the lengthy Vaughn index filed with the Court. DOE moved for summary judgment on the basis of the affidavits and index, and that motion is now ripe for decision. (Exxon's response to the motion was stayed pending in camera examination of certain draft documents it believed would support its contention of bad faith on the part of DOE; such review yielded no evidence of bad faith. Order of November 1, 1982.) Exxon's motion for partial summary judgment, in which it asserts that DOE's search was deficient and its claims of exemption unjustified, is also ready for consideration.
As explained below, the search DOE undertook was adequate and the material withheld generally is privileged by Exemption 5. DOE shall be ordered to produce to Exxon those few documents or portions of documents it improperly withheld. In other respects, DOE's motion shall be granted and Exxon's denied.
I. Adequacy of the Search
The requests at issue are those previously referred to as Request II (Parts 1 and 2) and Request III. In Part 1 of Request II Exxon sought a wide range of material concerning the computation of a "base production control level" ("BPCL") for a "unitized property" as those terms were used in connection with petroleum price regulations. Part 2 of the request sought certain opinions issued or used by the Office of Regional Counsel, Region VI. Request III sought documents concerning the background and goals of DOE's August 22, 1973 definition of a BPCL. DOE previously contended that Request II, Part 1 and Request III did not reasonably describe the desired documents; this Court, as noted above, ruled to the contrary. With respect to Request II, Part 2, DOE released all but one of the 18 requested opinions, claiming that the remaining document could not be located. The Court directed DOE to "once again retake a good faith search, with a deliberate and dedicated look, to locate the document," yet noting that "to order the Department to produce what it cannot find, would be senseless." Search Order at 2.
A. Methodology of the Search
In determining whether an agency's search was sufficiently thorough, a court may rely upon affidavits, provided that they are "relatively detailed" and nonconclusory. McGehee v. CIA, 225 U.S. App. D.C. 205, 697 F.2d 1095, 1102 (D.C.Cir.1983); Goland v. CIA, 197 U.S. App. D.C. 25, 607 F.2d 339, 352 (D.C.Cir.1978). The three Weiner affidavits set forth, with sufficient detail and in a nonconclusory manner, the methodology used in DOE's search.
In coordinating the search for documents concerning computation of BPCLs, Weiner consulted other attorneys in DOE's Regulatory Litigation Section involved in litigation relating to matters similar to Exxon's FOIA request. As a result, eleven offices within the agency were identified as possible repositories of responsive documents. DOE also determined that 94 individuals be required to search for documents, including the 50 persons listed in Exxon's request. Because some of those 94 individuals were no longer with the agency, all offices and persons directed to make searches were also asked to report as to files relating to any of those individuals or their offices.
Each of the individuals and offices participating in the search received copies of Exxon's FOIA request, the Court's Search Order, and a list of the individuals identified by Exxon's request. A comprehensive instructional memorandum from the DOE Deputy General Counsel was also included in the package. This memorandum advised the individuals and offices that to a large extent they might already have completed the search in conjunction with earlier discovery efforts in the United States v. Exxon enforcement action and two other cases. Accordingly, those required to perform searches were informed that they need not duplicate previous efforts, although they were directed to indicate in their responses to Weiner the particulars of any relevant prior searches. The memorandum, as later supplemented, also advised the searchers that they were not required to search audit files or Regional Counsel individual enforcement case files. (Nevertheless, some enforcement files were searched and documents therefrom identified. See Vaughn index, passim.) This search, which was required by the Court to be completed in 60 days, yielded approximately 3100 documents. See First Weiner Affidavit, passim.
Exxon argues that DOE improperly excluded audit files and case files from the search, claiming that since Request II sought all documents under the agency's control pertaining to the computation of a BPCL for unitized properties and since the Search Order did not specifically exclude such files, DOE was obliged to extend its search to those locations. With respect to the audit files, DOE asserts that a search of "every one of the thousands of audit files spread across the country" for documents responsive to Exxon's request "would literally take years." DOE Opposition at 15; compare United States v. Exxon, 87 F.R.D. 624, 634-35 (D.D.C.1980) (terming a search for final audit reports instead of a search of each audit file a "reasonable" procedure). Likewise, a search of every enforcement file would have been no small task.
Such an expansive search certainly was not contemplated by the Search Order. In presenting the Court with arguments that were ultimately persuasive on the question of whether its FOIA requests "reasonably described" the material sought, Exxon asserted that its requests were not "limitless," as DOE characterized them, but instead narrow and manageable. Exxon had challenged DOE's claim that the requests were unreasonably broad by noting that "plaintiff has identified some 50 specific files to be searched and asks this court only to compel defendants to search these files and the files in the General Counsel's office." Exxon Memorandum of May 10, 1979 at 17 (emphasis added); see also id. at 5 ("defendants must be compelled to search the files named in plaintiffs [sic] requests and the Office of General Counsel" for responsive records) and Proposed Order No. 1 to Exxon Memorandum of April 19, 1979 at 2 (seeking searches of files of named individuals and Office of the General Counsel).
Moreover, the means used by DOE to determine the distribution list for the search package was adequate. Weiner appropriately consulted agency personnel most likely to have familiarity with the matters at issue in the requests, attorneys in the Regulatory Litigation Section of the Office of General Counsel who had handled litigation relating to similar matters. As noted above, they identified eleven groups of offices likely to possess responsive documents: (1) the Economic Regulatory Administration, (2) the Federal Energy Regulatory Commission, (3) the Office of Hearings and Appeals, (4) the Deputy Secretary's office, (5) the Office of Regulations and Emergency Planning, (6) the Office of Operations Planning and Evaluation, (7) the Office of the General Counsel, (8) the Office of the Special Counsel, (9) the Regional Counsel offices, (10) the Office of Enforcement District Managers, and (11) the Office of the Special Counsel for Compliance -- Districts. First Weiner Affidavit, para. 4. Furthermore, by including a copy of the distribution list in the instructional package and directing all searchers to inform Weiner of any files relating to the 94 individuals listed, DOE provided a useful "check" to ensure the thoroughness of the search.
Finally, the instructions provided to the searchers were complete, detailed, and more than sufficient to make certain that proper searches would be performed.
Despite a second attempt to locate the missing Region VI opinion described by Exxon as "75-49 addendum," the document remains undiscovered. After an extensive search for such a document, see Second Weiner Affidavit, it appears that "75-49 addendum" either never existed or refers instead to Opinion 75-71 (an opinion related to Opinion 75-49) or the file of Opinion 75-71. In any case, the status of this document evidently is no longer disputed by Exxon.
The same methodology employed in the search for documents responsive to Request II, Part I was also used in the search for Request III documents. Weiner consulted attorneys in the Regulatory Litigation Section familiar with similar matters; from this, a list of four possible repositories evolved. They were: (1) the Assistant General Counsel for Petroleum Regulations, (2) the Acting Chief Historian, (3) the Manager, Tertiary Enhanced Recovery Program, and (4) the Acting Director, Program Operations, Economic Regulatory Administration.
While Exxon evidently believes that more persons or offices should have been identified, it does not suggest who was improperly excluded -- except to note that the four are national-level officials yet Request III as written also encompassed regional and area offices. However, Request III concerned a higher-level decision than Request II, Part 1: the promulgation of the regulation defining BPCL rather than the practical use to which that regulation was put. As such, the fact that the only officials identified were national-level ones does not render DOE's distribution list for Request III unreasonable. It was appropriate for DOE to look to such high-level officials for information of this kind and consistent with its duty to take reasonable steps to uncover requested documents. McGehee v. CIA, 697 F.2d at 1101. The search was sufficiently thorough without having been expanded to lower-level personnel.
Exxon asserts that instances of alleged bad faith on the part of DOE in responding to the FOIA requests and in the course of this litigation impugn the credibility of the Weiner affidavits and Vaughn index. Indeed, while evidence of bad faith may render an agency's affidavits insufficient to support a finding that an agency's search procedure was reasonable as a matter of law, McGehee v. CIA, 697 F.2d at 1102, as explained below, the record does not demonstrate such bad faith in this case.
In McGehee, the Court of Appeals found in the record "significant evidence" suggesting that the CIA did not process the plaintiff's request for information concerning the Jonestown, Guyana tragedy in good faith. It arrived at its conclusion on the basis of two facts: that the CIA took almost two and one-half years before it processed the plaintiff's "reasonably straightforward" request (and then only after ordered to do so by the District Court), and that the CIA employed a secret policy of limiting searches to documents existing on the date of the request. 697 F.2d at 1113. There was also in the record a suggestion that the CIA had limited its searches to files denominated "People's Temple" and failed to look for information under any closely-related topics such as the Rev. James Jones or Jonestown, although the court did not explicitly cite this as an example of bad faith. Id. at 1100.
Exxon's primary challenge to DOE's good faith relates to the agency's assertion that the FOIA requests were not reasonably described. Yet this Court did not find DOE's contention spurious or frivolous in the Search Order, and does not do so now. Exxon at one time believed that DOE seized upon the reasonable description requirement as a means of blocking or delaying the processing of Exxon's requests, and asserted that evidence of such a tactic would be revealed upon examination of two documents identified as the "Kielman Memorandum" and the "'Rockwood Drafts." An in camera examination of those documents yielded no such evidence.
The fact that initially some employees were able to find materials responsive to Exxon's requests, see Search Order at 4, does not mandate the conclusion that DOE interposed its reasonable description defense in bad faith. Often, a FOIA request may reveal itself not to be reasonably described only after some processing has been undertaken. Almost any request could conceivably yield some responsive documents. To take an extreme example, DOE certainly would be able to locate some documents responsive to a request for all documents containing the word "petroleum." But that does not mean that such a request is reasonably descriptive of the information the requestor seeks.
Moreover, that DOE ultimately was able to search for and identify responsive documents does not prove that its contention that Exxon's requests were not reasonably descriptive was taken in bad faith. As noted above, DOE's search was facilitated by the guidelines presented through the Search Order as well as Exxon's representations as to the "core" of documents it sought. DOE did not have the benefit of such assistance when it first was presented with Exxon's requests.
Finally, Exxon's suggestion that the participation of attorneys in the Office of Special Counsel for Compliance -- enforcement staff -- in responding to the FOIA requests demonstrates bad faith is of little moment. DOE notes that this office was a possible repository of responsive documents. In any case OSC's involvement with the requests appears to be well removed from the actual search conducted by the Regulatory Litigation Section. No evidence to impugn the search is shown here.
II. Sufficiency of the Vaughn Index
The first Weiner affidavit and the appended index describing the withheld material provide an adequate basis upon which the Court may assess DOE's claims of privilege. Each piece of withheld information is described in a particularized statement, from one to several pages in length, indicating the content of the document, the names of the document's author and recipient (where known), its date, the exemptions claimed, and the basis for such claims. These statements were prepared in accordance with the sample index distributed to the searchers in their information packages, and the claims of privilege asserted therein were reviewed by Weiner. First Weiner Affidavit at 6. The affidavit groups the various bases upon which privileges are asserted into a number of categories. Together, the index and affidavit provide enough information to render an in camera examination of the hundreds of documents unnecessary; as such, the court exercises its discretion not to order in camera production of the documents. EPA v. Mink, 410 U.S. 73, 93, 93 S. Ct. 827, 838, 35 L. Ed. 2d 119 (1973); Vaughn v. Rosen, 157 U.S. App. D.C. 340, 484 F.2d 820, 824-26 (D.C.Cir.1973).
III. Assertions of Privilege
Exemption 5 provides that FOIA does not apply to matters that are "inter-agency or intra-agency memoranda or letters which 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). As noted above, DOE contends that all withheld material falls within one or more of these three components of Exemption 5: the deliberative process privilege, the attorney work-product privilege, and the attorney-client confidential communication privilege. The affidavit groups the documents in dispute in three categories: (1) draft documents, (2) documents concerning audits, enforcement proceedings, or similar matters, and (3) documents concerning policy decisions. DOE asserts that all material it withheld is protected by the deliberative process privilege and claims the other two privileges for a number of the "enforcement" documents. The general assertions of privilege are discussed immediately below. Conclusions as to the releasability or exempt nature of the specific documents at issue are discussed thereafter in Part IV.
A. Deliberative Process Privilege
This privilege exempts from disclosure documents that are "predecisional" (i.e., created before the agency issued its final decision on a matter) and "deliberative" (i.e., reflecting the give-and-take of consultation). See Coastal States Gas Corp. v. Department of Energy, 199 U.S. App. D.C. 272, 617 F.2d 854, 866 (D.C.Cir.1980); Texaco v. Department of Energy, 4 Energy Mgt. (CCH) P 26,302 at 28,344 (D.D.C.1981).
As the Court of Appeals held in Coastal States, the exemption covers "recommendations, draft documents, proposals, suggestions, and other subjective documents which reflect the personal opinions of the writer rather than the policy of the agency." 617 F.2d at 866. It privileges disclosures that "would inaccurately reflect or prematurely disclose the views of the agency, suggesting as agency position that which is yet only a personal position." Id. The test for this is "whether the document is so candid or personal in nature that public disclosure is likely in the future to stifle honest and frank communication within the agency." Id. Courts examine the tenor of a disputed document to determine whether it is recommendatory or deliberative in nature. Id. Finally, a document, although "predecisional" when created, may lose such status if it is "adopted formally or informally, as the agency position on an issue by the agency in its dealings with the public." Id. Internal, undisclosed memoranda which become relied upon by the agency as precedent -- "secret" or "working" law -- therefore may be denied the protection of the privilege. Id. at 867.
The deliberative processes to which the documents assertedly are relevant concern various efforts to regulate petroleum pricing undertaken by DOE and predecessor agencies beginning in 1973. The regulations essentially permitted producers to charge higher prices for "new" oil than they were allowed to charge for "old" oil. Between 1973 and the filing of the FOIA requests, DOE was involved in policy determinations and rulemaking proceedings directed at implementing the objectives of the two-tier pricing scheme. DOE was also engaged in pertinent enforcement activities.
How the privilege generally applies to the documents in dispute is discussed with respect to the three categories of documents seriatim.
Draft documents, by their very nature, are typically predecisional and deliberative. They "reflect only the tentative view of their authors; views that might be altered or rejected upon further deliberation either by their authors or by superiors." Pennzoil v. Department of Energy, 4 Energy Mgt. (CCH) P 26,340, at 28,606-07 (D.Del.1981). The Court of Appeals in Coastal States, as noted above, identified draft documents as a proper subject of the deliberative process privilege, 617 F.2d at 866. Moreover, such materials were held exempt from discovery on this ground in the enforcement action parallel to this case. United States v. Exxon, Civil Action No. 78-1035 (D.C.D.C. Jan. 22, 1982).
As will be evident in Part IV, DOE has demonstrated that this privilege properly applies to the great majority of draft documents identified in this case. Most of these documents are identified as drafts of specific "final" documents, and their place within the deliberative process is clear from the Vaughn index. In some instances where DOE has failed to identify a final document corresponding to a putative draft, the "draft" shall be ordered produced to the extent that the agency has provided no basis for determining that it in fact has such status.
Yet, there is no merit to Exxon's argument that in order to establish the privileged character of a draft, DOE must show to what extent the draft differs from the final document. The effect of this would be to expose what occurred in the deliberative process between the draft's creation and the final document's issuance. Similarly, the agency is not bound to disclose every segment of a draft that happens to make its way into the final product. "If the segment appeared in the final version, it is already on the public record and need not be disclosed. If the segment did not appear in the final version, its omission reveals an agency deliberative process: for some reason, the agency decided not to rely on that fact or argument after having been invited to do so." Lead Industries Association v. O.S.H.A., 610 F.2d 70, 86 (2d Cir.1979). In the instant case, final versions of withheld drafts generally have been released.
The analysis of the numerous individual draft documents was aided by the fact that the Weiner affidavit placed the withheld draft material in eleven subcategories representing different stages of DOE investigative and enforcement activity. This usually precise categorization in most cases provided ample means with which to determine to what type of agency action each draft pertained. The subcategories identified by Weiner are as follows: (1) draft Notices of Probable Violation ("NOPVs"), Proposed Remedial Orders ("PROs"), and Remedial Orders ("ROs"); (2) draft Interpretations (interpretations of specific factual situations issued by DOE at a firm's request); (3) draft Decisions and Orders ("D & Os") (issued by the Office of Hearings and Appeals in response to a firm's request for relief from DOE regulations); (4) draft Consent Orders; (5) draft documents relating to NOPVs, PROs, and ROs; (6) draft rulings, regulations, and documents analyzing rulings and regulations; (7) draft press releases; (8) draft speeches and testimony; (9) draft matters concerning audits; (10) draft Notices of Public Hearings and Notices of Proposed Rulemakings; and (11) miscellaneous drafts.
This group of documents consists of those identified by DOE as expressing their authors' opinions, recommendations, or analyses of various regulatory or enforcement policies or other agency positions. DOE asserts that all withheld information was subject to further review and concurrence before final decisions were reached. The first Weiner affidavit divides this group of documents into two subcategories: documents created by Regional Office personnel and documents generated at the National Office level. One additional document is an inter-agency memorandum from the Environmental Protection Agency to a DOE predecessor agency concerning the impact of a certain energy proposal on environmental quality.
Exxon argues that various documents were not properly withheld on grounds that they contain factual material, that no specific deliberative process has been identified, and that they represent "working law." These challenges are discussed below with respect to the individual withheld documents.
Exxon also asserts that withheld material must be disclosed because the need for secrecy allegedly no longer exists with respect to old documents or documents concerning areas which DOE no longer has authority to regulate. It cannot be said that the documents in question are so old as to render the privilege moot. Moreover, the applicability of the privilege does not turn on the agency's present ability to engage in the type of rulemaking to which the deliberations in question were relevant. Agency employees most certainly would be inhibited from frank deliberation if their statements could be made public instantaneously upon the agency's happenstance loss of jurisdiction over the subject matter of their deliberations. The privilege protects the deliberations, not the agency function prompting them.
DOE has shown that the nondisclosed policy documents for the most part properly fall within the deliberative process privilege. See Part IV below.
Exxon generally makes the same challenges with respect to these documents as it poses to the withheld policy and draft materials. It also asserts that documents anticipating certain enforcement actions that ultimately were never taken (for example, memoranda concerning proposed NOPVs that ended up not being issued) must be disclosed under the holding of NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 95 S. Ct. 1504, 44 L. Ed. 2d 29 (1975).
Exxon's reading of that case, however, is wrong. There, the Supreme Court ruled that certain advisory memoranda either were or were not "final opinions" subject to disclosure on the basis of whether or not they advised further legal action against a party. "Advice and Appeals Memoranda" that explained decisions of the NLRB General Counsel not to file an unfair labor practices complaint were final opinions made in the adjudication of cases in that they had the effect of finally denying relief to the charging party -- they were the last word on the subject. Advice and Appeals Memoranda which directed the filing of a complaint, on the other hand, were not final determinations of cases, and therefore were not necessarily subject to disclosure under FOIA. 421 U.S. at 155-60, 95 S. Ct. at 1518-21. Accordingly, the fact that a memorandum concerns an enforcement action that was never taken does not compel its disclosure under the rationale of NLRB v. Sears.
B. Work-Product and Attorney-Client Privileges
DOE asserts that 26 enforcement documents are exempt from disclosure on the basis of the attorney work-product privilege as well as the deliberative process privilege. They fall within four subcategories: (1) memoranda concerning various firms that disputed NOPVs issued to them and written when DOE was considering issuing PROs or ROs to those firms, (2) documents prepared following the issuance of a NOPV to a firm and "in contemplation of further litigation", (3) a draft complaint in the "issue letters" (documents which DOE asserts were similar in function to, and have been superseded by, NOPVs) disputed by the receiving firms. Document 491, a portion of a memorandum from one of the agency's Attorney-Advisors to a Deputy Regional Administrator concerning the attorney's view of the legal sufficiency of the agency's case in the enforcement action against Exxon, has been withheld under the privilege for confidential attorney-client communications.
The work-product privilege applies to "memoranda prepared by an attorney in contemplation of litigation which set forth the attorney's theory of the case and his litigation strategy." NLRB v. Sears, 421 U.S. at 154, 95 S. Ct. at 1518. For the document to have been prepared "in contemplation of litigation," "at the very least, some articulable claim, likely to lead to litigation, must have arisen." Coastal States, 617 F.2d at 865. "The agency must establish in its affidavits or indexes that a specific claim had arisen, was disputed by the company, and was being discussed in the memorandum." Id. at 866.
Exxon challenges DOE's assertions of privilege on two basic grounds. First, it contends that the privilege should not apply to a work product created for administrative litigation -- a position it asserts DOE has taken in other cases. Yet it was ruled in Texaco that a memorandum concerning a decision whether to issue a NOPV fell within the privilege. 4 Energy Mgt. para. 26,302 at 28,345. In any case, administrative litigation certainly can beget court litigation and may in many circumstances be expected to do so. Second, it argues that the documents at issue were not truly created "in contemplation of litigation" in that they were prepared at nonadversarial stages when the possibility of litigation remained an open question. This issue, like the first, may only be decided on a document-by-document basis and therefore is so addressed below.
Because the deliberative process privilege applies to the document for which the attorney-client privilege is asserted and most of the documents claimed to be work-product material, the applicability of the latter two privileges to such documents need not be, and generally is not, discussed.
IV. Releasability of Specific Documents
The following documents are identified by their numbers in the Vaughn index. They are not sequential inasmuch as certain documents either are no longer disputed or had their status determined in the enforcement action. The format used herein follows that used by the judge in his January 22, 1982 order in that case: a notation of "Privileged" indicates that the particular document or portion thereof may be withheld by DOE while a notation of "Release" indicates that the agency is required to disclose that document or portion thereof to Exxon. ...