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FIA-14-0042 - In the Matter of Tri-Valley CAREs

In May 2008, Tri-Valley CAREs submitted a revised FOIA request to the DOE for a document titled “B368 Select Agent Risk and Threat Assessment,” dated July 14, 2005.  Jan. 14, 2011, Determination Letter from Carolyn Becknell, FOIA Officer, NNSA, to Appellant.  The responsive document was released to Tri-Valley CAREs after information was redacted under Exemptions 1, 2, and 6.  Id.  NNSA described the information withheld pursuant to Exemption 2 as “High 2” information, i.e., information where “disclosure significantly risks circumvention of agency regulations or statutes.”  See  Crooker v. ATF, 670 F.2d 1051, 1073-74 (D.C. Cir. 1981).  Tri-Valley CAREs appealed the Exemption 2 withholding on February 25, 2011.  February 18, 2011, Appeal Letter from Marylia Kelley, Executive Director, Appellant, to Director, Office of Hearings and Appeals (OHA), DOE.  While that appeal was pending, the Supreme Court issued a decision holding that agencies could no longer rely on Exemption 2 to withhold information under the “High 2” category of information.  Milner v. Dep’t of the Navy, 562 U.S. ___, 131 S. Ct. 1259, 1264-1271 (2011).  Milner rejected the reasoning of Crooker v. ATF, 670 F.2d 1051, 1073-74 (D.C. Cir. 1981), and made clear that High 2 no longer existed.  Therefore, we remanded this matter to the NNSA.  Tri-Valley CAREs, Case No. TFA-0463 (May 25, 2011). On May 13, 2014, NNSA responded to our remand and withheld the Exemption 2 information under Exemption 7(F) of the FOIA.  May 13, 2014, Determination Letter from Elizabeth L. Osheim, Authorizing and Denying Officer, NNSA, to Robert Schwartz, Appellant.  The Appellant challenged the determination claiming that (1) NNSA did not prove that the requested document was compiled within the scope of DOE’s law enforcement capacity; and (2) NNSA did not identify individuals with the specificity required by the Supreme Court.  June 12, 2014, Appeal Letter from Scott Yundt, Appellant, to Director, OHA, DOE.