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FIA-14-0011 - In the Matter of Donna Deedy

On February 24, 2014, the Office of Hearings and Appeals (OHA) issued a decision granting in part and denying in part denying an appeal (Appeal) from a Freedom of Information Act (FOIA) determination issued by the Department of Energy’s (DOE) Office of Health, Safety, and Security (DOE-HSS). The Appellant, Donna Deedy, sought records relating to the last Memorandum of Understanding submitted to the Department of Health and Human Services (HHS) signed by Secretary of Energy Samuel Bodman (MOU). In its response, DOE-HSS identified one document, consisting of a cover leter and a signed copy of the MOU by Secretary Bodman. However, the document was not signed by the Secretary of Health and Human Services. DOE-HSS withheld the entire document pursuant to Exemption 5’s deliberative process privilege since DOE and HHS failed to come to an agreement concerning the MOU. After examining the document, OHA determined that page one of the document, a cover letter transmitting the proposed MOU, did not contain any deliberative material and, as such, was improperly withheld pursuant to Exemption 5. The rest of the document consisted of the MOU. OHA determined that based on the information provided by DOE-HSS, the MOU had not been finalized and thus represented a predecisional draft by DOE for HHS’s consideration. Consequently, the MOU itself was a predecisional, deliberative document that would be properly protected pursuant to Exemption 5’s deliberative process privilege. OHA remanded the matter to DOE-HSS so that it could issue a new determination regarding the cover letter portion of the document.