On January 23, 2023, the Office of Hearings and Appeals (OHA) granted in part the Freedom of Information (FOIA) Appeal filed by William Gagner from a final determination letter (Determination Letter) issued by the Department of Energy's Office of Inspector General (OIG). On Appeal, the Appellant argued the agency failed to adequately explain why it made redactions pursuant to Exemption 4 and that it did not correctly apply Exemption 4 to the redacted documents.

An examination of the Determination Letter revealed that the letter (1) adequately described the results of searches; (2) clearly indicated which information was withheld; and (3) specified the exceptions or exemptions under which information was withheld insofar as it concerned Exemption 5. However, as it related to the explanation provided for the Exemption 4 redactions, the Determination Letter was inadequate, as it did not employ wording consistent with the legal precedent, as established by Argus Leader, that the competitive harm test should no longer be applied in determining whether information is confidential

The Appellant argued the DOE and the Contractor had previously agreed on how and when the DOE would treat information from UT-Battelle as confidential. As the documents in question were not marked "privileged" or "confidential" pursuant to their agreement, there was nothing indicating the Contractor treated the information as confidential. Additionally, there was no indication that the DOE provided assurances of confidentiality to the Contractor at the time the information was submitted to the DOE. An examination of materials provided to OHA indicated that the information was customarily and actually treated as private by the Contractor. Regarding the matter of whether the DOE provided an assurance of confidentiality when the Contractor submitted the information, it was determined that the contract between the Contractor and the DOE indicates the financial information was a contractor - owned record. Accordingly, there was an expectation that the information would not be released . OHA concluded that Exemption 4 was appropriately applied to the redacted information contained in the responsive documents.

Because OHA determined that Exemption 4 was properly applied to the responsive documents in question, notwithstanding that OIG applied the incorrect standard, OHA declined to remand to OIG for further processing. (OHA Case No. FIA-23-0008)