FIA-23-0001 - In the Matter of Advocates for the West

On November 21, 2022 the Office of Hearings and Appeals (OHA) dismissed in part and denied in part the Freedom of Information (FOIA) Appeal filed by Advocates for the West (Appellant) from two partial response letters from the Bonneville Power Administration (BPA). On Appeal, the Appellant argued that BPA had improperly withheld records under FOIA Exemption 5.

The Third Partial Response Letter was received by the Appellant on June 28, 2022. This Appeal was filed on October 28, 2022, more than 90 calendar days after the Appellant received the Third Partial Response Letter. Therefore, the Appeal from the Third Partial Response Letter is not timely, and we dismiss it.

The Appellant argued (1) that BPA improperly withheld communications from a contractor; (2) that BPA failed to provide sufficient explanations for redactions; (3) that BPA's redacted information that was not pre-decisional and deliberative; and (4) that BPA failed to show how releasing the redacted records would cause foreseeable harm. First, BPA properly withheld some communications with the contractor Kintama because Kintama was providing BPA with opinions and recommendations about issues faced by BPA and was not advancing opinions that were "necessarily adverse" to competitors. As to the second and fourth arguments, we are unaware of any requirement for an agency to provide a requestor with specific rationales for redactions or explain foreseeable harm in an initial response to a FOIA request. Finally, as to the third argument, the withheld records were both pre -decisional and deliberative because the records contained recommendations and viewpoints about ongoing projects within BPA. Therefore, BPA properly withheld records from the Fourth Partial Response Letter under Exemption 5. (OHA Case No. FIA-23-0001)