On November 21, 2022, the Office of Hearings and Appeals (OHA), granted in part, the Freedom of Information Act (FOIA) appeal filed by America First Legal Foundation (Appellant). The Appellant appealed a final determination issued by the Department of Energy's Office of Public Information on September 30, 2022, which indicated it withheld portions of a responsive document under Exemption 5; specifically, the deliberative process privilege and determined disclosure of the redacted records is not in the public interests because foreseeable harm would result from such disclosure.

In the appeal, the Appellant argued the redacted material is not protected under the deliberative process privilege because they requested a final report, which was neither pre -decisional nor deliberative. The Appellant also argued that even if the document was pre -decisional and deliberative, other federal agencies have released similar records in response to FOIA requests, so no identifiable harm would result from the DOE disclosing the redacted document in full. Lastly, the Appellant argued the DOE did not take any steps to segregate and release nonexempt information.

After reviewing the redacted material in the records, OHA found the redacted records were created by a committee within the Department of Energy (DOE) and contained the committee's findings and recommendations regarding whether underserved communities may face barriers in accessing DOE programs. OHA found the redacted records were predecisional because they were created before the DOE published its list of final priorities from the report, did not draw any conclusions, did not contain a statement of policy, and did not direct whether the committee's findings should be acted upon. OHA also found the redacted records were deliberative in nature because they reflected the analyses of different teams within the committee, the processes used by the committee and the recommendations were used by the DOE Secretary's Advisor to determine what information contained in the records should be included in the DOE's final statement of policy.

OHA also determined it is foreseeable that release of the redacted material would cause harm because it would likely have a chilling effect on the ability of DOE officials to have open and candid discussions about possible deficiencies in DOE's programs. Lastly, OHA determined that there were two portions of the redacted records that contain non -exempt material that could be segregated from the rest of the responsive document and disclosed to the Appellant.

Accordingly, the Appellant's appeal was remanded in part to the DOE OPI, to issue a new determination letter in accordance with the decision's instructions. (OHA Case No. FIA-23-0002)