FIA-19-0029 - In the Matter of Greg Marlowe

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On August 13, 2019, the Office of Hearings and Appeals (OHA) denied a Freedom of Information Act (FOIA) appeal filed by Mr. Greg Marlowe (Appellant) concerning a FOIA request he made to the Department of Energy's (DOE) Office of Public Information (OPI). Appellant's FOIA request sought correspondence concerning OPI's transfer of two of his previous FOIA requests to the U.S. Patent and Trademark Office (PTO). OPI issued a response in which it provided Appellant with thirty-six pages of partially-redacted e-mails. OPI explained in its response that it had redacted portions of the e-mails under the deliberative process privilege of Exemption 5 of the FOIA. On appeal, Appellant argued that OPI had improperly asserted Exemption 5 and that disclosure of the records without redaction was in the public interest. Upon review of the records in question, OHA concluded that the records were all inter-agency or intra-agency communications between DOE and PTO personnel, that the e-mail were pre-decisional because each e-mail was sent prior to OPI's determination to transfer Appellant's FOIA requests to PTO, and that the content of the e-mails reflected a deliberative exchange as to how best to process Appellant's FOIA requests. OHA therefore concluded that OPI had properly asserted Exemption 5 in redacting portions of the records that it had provided to Appellant. OHA also determined that the release of material exempt from disclosure under the FOIA based on the public interest in disclosure was a discretionary decision for the office responding to a FOIA request, not OHA. For these reasons, OHA denied Appellant's appeal. OHA Case No. FIA-19-0029.