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FIA-13-0015 - In the Matter of Cause of Action

On April 24, 2013, the Department of Energy’s (DOE) Office of Hearings and Appeals (OHA) granted in part a Freedom of Information Act (FOIA) Appeal filed by the Cause of Action (Appellant) of a determination issued by the Loan Guarantee Program Office (LGPO). In its request, the Appellant asked for the names of 460 applicants who have applied to LGPO since its inception along with additional information about those applicants. On February 5, 2013, LGPO sent a final response to the Appellant in which it produced responsive documents, but withheld portions of those documents under Exemption 4. The Appellant appealed claiming that LGPO did not respond in a timely fashion and its response was incomplete. In addition, the Appellant claims that the information LGPO withheld under Exemption 4, should be released. LGPO stated that it does not have a copy of the actual data that GAP used to draft its report. LGPO explained that it provided raw data for GAO’s report, which GAO analyzed and used to create the report. LGPO did not continue to update these raw data files after providing the information to GAO. LGPO asserted it is not required to create records for the purposes of responding to a FOIA request. OHA agreed. However, LGPO did locate information responsive to the request after the Appeal was filed. It will release that information to the Appellant on remand. As to Exemption 4, OHA found the withheld information was “commercial or financial,” “obtained from a person,” and “confidential.” The Appellant argued that the information was not “obtained from a person,” because DOE created the document in question. We disagreed, finding that the information was provided by the loan applicants and compiled by DOE. OHA also found that release of the information would cause substantial competitive harm to the loan applicants because it could harm them in possible future funding situations and give their competitors information about the loan applicants’ future business interests and the funding requirements associated with those interests. Therefore, OHA granted the Appeal as to the information found on Appeal and denied the remainder of the Appeal.