Freedom of Information Act (FOIA) Appeal

On January 15, 2015, OHA issued a decision denying a FOIA Appeal filed by Len Latkovski (the Appellant) of a determination issued by the DOE Office of Intelligence and Counterintelligence (IN) in response to his request for documents.  In its determination, IN released three documents responsive to the Appellant’s request seeking information pertaining to a number of Soviet cities.  IN withheld portions of those documents under Exemptions 1, 3 and 6.  The Appellant appealed the determination claiming that IN did not conduct an adequate search for records and that it should not have applied Exemptions 1, 3 and 6 to the withheld information.  The Appeal was bifurcated, and the Appellant’s challenge to IN’s invocation of Exemption 1 will be decided in another proceeding (OHA Case No. FIC-14-0003).  Thus, the Decision and Order only pertained to the withholdings of sensitive unclassified information under Exemptions 3 and 6 and to the adequacy of IN’s search for requested documents.  On appeal, IN provided OHA with information to evaluate the reasonableness of its search.  Based on its review, OHA found that IN conducted an adequate search for responsive documents.  In addition, OHA found that IN properly invoked Exemption 3 in support of its redactions in the subject documents as release of this information could damage national security by jeopardizing intelligence methods, sources and activities.  OHA further found that IN properly withheld names and other personal identifying information of individuals it redacted from the responsive documents pursuant to Exemption 6.  Therefore, OHA denied the appeal.  OHA Case No. FIA-14-0082

Refund Proceeding

On December 10, 2014, OHA released funds held in escrow for Highway Oil, Inc. (Highway) in the Subpart V refund proceeding. Highway submitted five applications for refunds in five different Subpart V proceedings and was granted refunds in each proceeding. During the time that these refunds were granted to Highway, Highway was the subject of a Proposed Remedial Order (PRO) issued by the Economic Regulatory Administration (ERA). The PRO alleged that, during the period of a DOE audit conducted in 1978 and early 1979, Highway violated the pricing provisions of 6 C.F.R. § 150.359 and 10 C.F.R. § 212.93 by selling regular and premium gasoline to its retail customers at prices that exceeded the then maximum lawful selling price   According to the ERA, these violations resulted in overcharges totaling $1,335,810.66. The PRO contemplated that Highway refund this amount, plus interest, in a manner to be determined by the ERA in accordance with the options set forth in the PRO. The alleged violation amount exceeded the refund amount that Highway was eligible to receive. Given this, OHA decided not to issue the refunds directly to Highway but to place any refunds Highway would have been awarded in an interest bearing escrow account. OHA recently ascertained that no further action is contemplated to be taken against Highway for its alleged overcharges. Consequently, OHA ordered the disbursement of all of the escrowed Highway refund monies (approximately $91,000) to Highway.  OHA Case No. RFA-14-0002