Freedom of Information Act (FOIA) Appeal

On October 23, 2015, OHA issued a decision granting in part an appeal (Appeal) FOIA determination issued by the DOE National Energy Technology Laboratory (NETL). In the Appeal, Mr. Dan Zegart (Appellant), challenged two NETL partial determinations in which it withheld portions of documents relating to clean coal and carbon capture technology. NETL provided the Appellant with a number of documents but withheld portions of the documents pursuant to FOIA Exemptions 4, 5, and 6. Appellant challenged NETL’s determination on the grounds that NETL did not provide him with a timely final response to his FOIA request; did not provide him with a Vaughn index of all responsive documents; and inappropriately used Exemptions 4, 5, and 6 to withhold information. OHA rejected the Appellant’s first two arguments in holding that it had no jurisdiction in matters relating to whether an agency has responded to a FOIA request in a timely manner, and in holding that an agency is not required to provide a Vaughn index at the administrative level of the FOIA process. With regard to the application of the cited FOIA Exemptions, OHA found that NETL had not sufficiently examined the privacy interests contained in the withheld Exemption 6 material in order to conduct a proper Exemption 6 analysis. Further, while NETL properly applied Exemptions 4 and 5 to most of the withheld material, OHA found, upon review, that portions of the withheld documents did not seemingly reveal commercial information protectable by Exemption 4 or contain deliberative material withholdable under Exemption 5. Consequently, OHA remanded the case to NETL to issue another determination regarding portions of the previously withheld material. OHA Case No. FIA-15-0050