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FIA-14-0010 - In the Matter of Exchange Monitor Publications

On February 28, 2014, the Department of Energy’s (DOE) Office of Hearings and Appeals (OHA) denied a Freedom of Information Act Appeal (FOIA) filed by Exchange Monitor Publications (Appellant) of a determination issued by the Office of the Information Resources (OIR).  In its request, the Appellant asked for all electronic communications between the offices of the Deputy Secretary of Energy, Assistant Secretary for Fossil Energy, and the National Energy Technology Lab (NETL) Director regarding concerns over NETL management between June 1 and September 27, 2013. OIR released five documents but withheld portions under the deliberative process privilege outlined in Exemption 5 of the FOIA.  In its Appeal, the Appellant challenges those withholdings, claiming that because the NETL Director had been dismissed prior to the September 25 e-mails from the withheld information, those e-mails could not contain information that was pre-decisional.  We reviewed copies of the September 25 e-mails and disagreed.  OHA found that the e-mails contained pre-decisional information regarding issues other than the NETL director’s dismissal.  Therefore, OHA denied the Appeal.