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Summary of Decisions - April 8, 2013 – April 12, 2013

April 12, 2013 - 2:59pm

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Freedom of Information Act (FOIA) Appeals

On April 11, 2013, OHA issued a decision denying an appeal (Appeal) from a FOIA determination issued by the DOE’s Bonneville Power Administration (BPA).  BPA released information responsive to a request that the Appellant filed.  However, BPA redacted, pursuant to Exemption 5 of the FOIA, some of the information in the responsive records.  The Appellant appealed BPA’s determination, asserting that it did not justify how the withheld information was part of the deliberative process of BPA.  OHA found that BPA properly applied Exemption 5 in withholding portions of the documents it released to the Appellant.  Accordingly, the Appeal was denied.  OHA Case No. FIA-13-0014

On April 11, 2013, OHA granted in part a FOIA Appeal filed by the Sierra Club (Appellant) of a determination issued by the DOE Loan Guaranty Program Office (LGPO).  In its request, the Appellant asked for all documents generated since January 2009 related to or referring to requests made to the IRS for information about whether an applicant for a loan under any DOE program has a delinquent tax account.  LGPO released documents to the Appellant but withheld some information under FOIA Exemptions 4 and 6.  In addition, LGPO sent documents to the IRS for its review.  The Appellant challenged the withholdings and the adequacy of LGPO’s search.  OHA found that the search LGPO conducted was reasonably calculated to uncover responsive information and provided a sufficient explanation for why the information may not exist.  In addition, OHA found that LGPO properly withhold information under Exemption 6 and almost all the information withheld under Exemption 4.  OHA determined that one Tax Identification Number of a successful loan applicant should have been released.  Therefore, OHA granted the Appeal as to the Tax Identification Number, but denied the remainder of the Appeal.  OHA Case No. FIA-13-0005

On April 10, 2013, OHA issued a decision denying an appeal (Appeal) from a FOIA determination issued by the DOE’s Office of Information Resources (OIR), concluding that it could not locate any responsive documents. The Appellant, Caldera Pharmaceuticals, Inc., contested the adequacy of OIR’s search for responsive documents pertaining to its FOIA request.  The OHA reviewed the OIR’s description of its search methodology, and determined that an adequate search for documents was conducted and that no responsive documents existed.  OHA Case No. FIA-13-0021

Whistleblower Appeal (10 CFR Part 708)

On April 8, 2013, OHA issued a decision denying an Appeal filed by Sun Kim, of the DOE’s Office of Science, Chicago Office’s dismissal of her whistleblower complaint (10 CFR Part 708) for lack of jurisdiction.  The OHA agreed with the Office of Science, Chicago Office’s determination that DOE has no jurisdiction to consider Ms. Kim’s complaint under Part 708 because she has also filed a pending claim for relief, based upon the same facts, under the state of California’s Whistleblower Protection laws.  Accordingly, the OHA denied her Appeal.  OHA Case No. WBU-13-0005

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