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FIA-13-0020 - In the Matter of Avery R. Webster

On April 25, 2013, the Office of Hearings and Appeals (OHA) issued a decision denying an appeal (Appeal) from a Freedom of Information Act (FOIA) determination issued by the Office of Information Resources (OIR).  The Appellant appealed the OIR’s decision to withhold portions of the released documents pursuant to Exemption 5 and contested the adequacy of its search.  The OIR stated that portions of the documents were withheld pursuant to the attorney-client and deliberative process privileges of Exemption 5. The OHA, acting through the Chief Information Officer pursuant to a delegation from the Director, OHA, reviewed the withheld information and determined that the OIR properly invoked the attorney-client privilege as the information withheld consists of 1) a communication among DOE attorneys recommending legal advice to be communicated to a DOE program office, and 2) a communication of legal advice from DOE’s attorneys to a DOE program office.  The OHA also determined that the OIR properly invoked the deliberative process privilege as the nature of the withheld information was predecisional and contained opinions pertaining to what legal advice should be provided to a DOE program office regarding a particular executive correspondence document.  The OIR stated that three offices conducted a search for responsive documents:  the Office of the Executive Secretariat, the Office of the General Counsel, and the Office of Hearings and Appeals.  Upon review of each office’s description of its search, the OHA determined that the OIR conducted an adequate search for responsive documents.  Therefore, the OHA denied the Appeal.