FIA-19-0015 - In the Matter of Christopher Fischahs

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On May 3, 2019, the Office of Hearings and Appeals (OHA) denied a Freedom of Information Act (FOIA) appeal filed by Mr. Christopher Fischahs (Appellant) concerning a FOIA request he made to the Department of Energy's National Nuclear Security Administration (NNSA). Appellant's FOIA request sought an investigative report (Report) prepared by an investigator concerning alleged misconduct by the Appellant. NNSA issued a determination letter in which it indicated that it was withholding the Report pursuant to Exemption 5 of the FOIA. On appeal, Appellant provided a letter of counseling NNSA had issued to him based on the Report. Appellant argued that, since the NNSA had decided to issue him the letter of counseling based upon the information in the Report, the Report was no longer predecisional and therefore was not exempt from disclosure under Exemption 5. OHA concluded that the Report was predecisional because it was prepared to inform NNSA management prior to making a decision concerning how to address the Appellant's alleged misconduct and that NNSA's decision to issue the Appellant a letter of counseling did not change the predecisional nature of the Report. OHA further concluded that the significant majority of the Report's contents were summaries of interviews the investigator conducted with cooperating individuals and analysis the investigator prepared based on the interviews, that this information was deliberative rather than factual, and that the little factual information contained in the Report was not reasonably segregable from the information exempt from disclosure under Exemption 5. Therefore, OHA denied Appellant's appeal. OHA Case No. FIA-19-0015.