Department of Energy

Washington, DC 20585

May 29, 2012

Anne L. Weismann Citizens for Responsibility and Ethics in Washington 1400 Eye Street, N.W., Suite 450 Washington, D.C. 20005 Reference: DOE FOIA Case Number HQ-2011-01383-F Dear Ms. Weismann: This is in response to your request for information that you sent to the Department of Energy (DOE) under the Freedom of Information Act (FOIA), 5 U.S.C. 552. You asked for records related to both the Lawrence Berkeley National Laboratory's ("Berkeley") decision to move its email systems to Google's Gmail and the DOE's decision to test cloud-based email and collaboration systems. Specifically, you asked for records related to the 12 categories listed below. Each category is followed by the notation of how many records were found in support of that category.

1. All records reflecting records management policies and data governance practices, and the development of these policies and practices, for both the DOE's potential and Berkeley's current cloud computing email system.
2. All records indicating steps that both the DOE and Berkeley have taken or plan to take to address record keeping requirements in a cloud computing environment including, but not limited to, any considerations given to NARA's Bulletin 201005, Guidance on Managing Records in Cloud Computing Environments (Sept. 8, 2010) http:/fwww.archives.gov/records-mgmtlbulletins/201 0/201 0-05.html. 3. All records indicating the attendees, or prospective attendees, and their titles of all the DOE or Berkeley meetings held, or scheduled to be held, addressing the use and development of cloud computing systems. 4. All records showing the development of instructions defining which copy of the DOE and Berkeley records will be declared as the agency's record copy in a cloud computing environment, as set forth in NARA Bulletin 2010-05 question 7, response 2. 5. All records related to the development of instructions of how to determine whether federal records in a cloud environment are covered under an existing

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records retention schedule, as set forth in NARA Bulletin 2010-05 question 7, response 3. 6. All records related to the development of instructions of how records will be captured, managed. retained, made available to authorized users, and retention periods applied for cloud computing systems as set forth in NARA Bulletin 201005 question 7, response 4. 7. All records related to the development of instructions on conducting a records analysis developing and submitting records retention schedules to NARA for unscheduled records in a cloud environment, including instructions about scheduling system documentation, metadata, and related records, as set forth in NARA Bulletin 2010-05 question 7, response 5. 8. All records related to the development of instructions on periodically testing transfers of federal records to other environments, including agency servers, to ensure the records remain portable, as set forth in NARA Bulletin 2010-05 question 7, response 6. 9. All records related to the development of instructions of how data will be migrated to new formats and operating systems in a cloud computing environment so that records are readable throughout their entire life cycle, as set forth in NARA Bulletin 2010-05 question 7, response 7. 10. All portions of contracts between Google, Unisys, Tempus Nova, or Acumen Solution and the DOE and/or Berkeley that show language reflecting record management considerations for the DOE and/or Berkeley's use of Google's Gmail, including, but not limited to, language set forth in the answer to question 8 in NARA Bulletin 2010-05. 11. All records reflecting communications between Google, Microsoft. Unisys, Tempus No~ or Acumen Solution and the DOE and/or Berkeley regarding record management and compliance with records management laws in a cloud computing environment. 12. All records reflecting records management considerations for pilot cloud computing projects tested by the DOE referenced in Information Week's April21, 2010 article 11 Energy Department Testing Cloud Email." Your request was transferred to the DOE Office of the Chief Information Officer (OCIO) to conduct a search and response. The OCIO conducted a search of its files and located nine (9) responsive documents. The documents found, and the category to which they apply, are identified in the enclosed index.

The information you requested is being provided to you with certain information withheld pursuant to Exemptions 5 and 6 of the Freedom of Information Act (FOIA), 5 U.S.C. 552 (b)(5) and (b)(6). Exemption 5 protects from mandatory disclosure "inter-agency or intra-agency memorandums of letters that would not be available by law to a party other than an agency in litigation with the agency... " Exemption 5 incorporates the deliberative process privilege which protects recommendations, advice, and opinions that are part of the process by which agency decisions and policies are formulated. This exemption has been construed to also exempt those documents normally privileged in the civil discovery context, such as attorney-client communications, attorney-work product documents, and deliberative process material. The information withheld under Exemption 5 consists of deliberative discussions between Federal employees. The DOE may consider these preliminary views as part of the process that will lead to the Agency's final decision about these matters. The information does not represent a final Agency position, and its release would compromise the deliberative process by which the government makes its decisions. Thus, it is being withheld under Exemption 5 of the FOIA as pre-decisional material that is part of the Agency's deliberative process. With respect to the discretionary disclosure of deliberative information, the quality of Agency decisions would be adversely affected if frank, written discussion of policy matters were inhibited by the knowledge that the content of such discussion might be made public. For this reason, DOE has determined that discretionary disclosure of the deliberative material is not in the public interest because foreseeable harm could result from such disclosure. Exemption 6 is generally referred to as the "personal privacy" exemption; it provides that the disclosure requirements of FOIA do not apply to "personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy." In applying Exemption 6, DOE considered: 1) whether a significant privacy interest would be invaded; 2) whether the release of the information would further the public interest by shedding light on the operations or activities of the Government; and 3) whether in balancing the privacy interests against the public interest, disclosure would constitute a clearly unwarranted invasion of privacy. The information withheld under Exemption 6 consists of the personal cell phone numbers of Federal employees. We have determined that the public interest in releasing this information in the document does not outweigh the overriding privacy interests in keeping this information confidential. This satisfies the standard set forth by the Attorney General on March 19, 2009, that the agency is justified in not releasing material that the agency reasonably foresees would harm an interest protected by one of the statutory exemptions. This also satisfies DOE's

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regulations at 10 C.F.R. 1004.1 to make records available which it is authorized to withhold under 5 U.S.C. 552 when it determines that such disclosure is in the public interest. Accordingly, we will not make discretionary disclosure of this information. Pursuant to 10 C.F.R. 1004.7(b)(2), I am the individual responsible for the determination to withhold the information described above. This decision, as well as the adequacy of the search, may be appealed within 30 calendar days from your receipt of this letter pursuant to 10 C.F.R. 1004.8. Appeals should be addressed to Director, Office of Hearing and Appeals, HG-1, L'Enfant Plaza, U.S. Department of Energy, 1000 Independence Avenue, S.W., Washington DC 20585-1615. The written appeal, including the envelope, must clearly indicate that a FOIA appeal is being made. The appeal must contain all the elements required by 10 C.F.R. 1004.8. Thereafter, judicial review will be available to you in the Federal district court either (1) in the district where you reside, (2) where you have your principal place of business, (3) where the Department's records are situated, or (4) in the District of Columbia. The case number referenced above has been assigned to this request and you should refer to it in all correspondence with DOE regarding this matter. We appreciate the opportunity to assist you with this matter. If you have any questions about the request or this correspondence, please contact Valerie Young at 301-9037855.

Deputy Associate Chief Information Officer For IT Corporate Management Enclosures Index of documents Responsive documents

Enclosure

FOIA Request HQ-2011-01383-F- Index of Responsive Documents

Doc.#

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8 9
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Description 11/11/2009 email from John Dunlap to multiple recipients, subject: David Sanda low is now a DOE Google Apps user 03/02/2010 email from Peter Tseronis to William Huie, subject: Federal Cloud Computing and the LBL cloud projects 04/25/2011 email from Teressa Wykpisz-Lee to Adam Stone, subject: Followup 08/20/2009 email from jkaden@google.com to multiple recipients regarding a meeting to be held on August 20. Calendar appointment for October 8, 2009; subject: DOE Google Apps Calendar appointment for November 13, 2009; subject: Google Docs discussion Calendar appointment for December 2, 2009; subject: DOE Gmail call Calendar appointment for February 26, 2010; subject: Google discussion Calendar appointment for March 8, 2010; subject: _I)OE Apps Pilot Kickoff
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Applies to Request Category#

Comments

N/A 1 Contains a description of the Berkeley Lab Gmail initiative Contains a description ofthe Berkeley Lab Gmail initiative

General

General

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Records that indicate meetings between DOE and Google were located. These files provide the dates and invitees to each meeting. No records were found, however, indicating the titles of the attendees.

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