Case No. LFA-0159, 26 DOE ¶ 80,176

April 4, 1997

DECISION AND ORDER

OF THE DEPARTMENT OF ENERGY

Appeal

Name of Petitioner:Glen Milner

Date of Filing: October 7, 1991

Case Number: LFA-0159

On October 7, 1991, Glen Milner filed an Appeal from a determination issued to him on September 19, 1991, by the Department of Energy's Albuquerque Operations Office (Albuquerque). In that determination, Albuquerque denied in part a request for information that Mr. Milner had filed on August 16, 1987, pursuant to the Freedom of Information Act (FOIA), 5 U.S.C. § 552. This Appeal, if granted, would require Albuquerque to release the information that it withheld in the September 19, 1991 determination.

The FOIA requires that documents held by federal agencies generally be released to the public upon request. The FOIA, however, lists nine exemptions that set forth the types of information that may be withheld at the discretion of the agency. 5 U.S.C. § 552(b). Those nine categories are repeated in the DOE regulations implementing the FOIA. 10 C.F.R. § 1004.10(b). The DOE regulations further provide that documents exempt from mandatory disclosure under the FOIA shall nonetheless be released to the public whenever the DOE determines that disclosure is in the public interest. 10 C.F.R. § 1004.1.

I. Background

On August 16, 1987, Mr. Milner submitted a request under the FOIA to the Naval Sea Systems Command of the Department of Defense (DOD) for "all documents on record concerning required or recommended safety precautions for the shipment of explosive and/or nuclear missile components, [i]n particular, . . . a series of documents titled NAVSEA SWOP [Special Weapons Ordnance Publication] 45-51." NAVSEA SWOP 45- 51 and its six supplements A through F comprise a technical manual published by the Joint Nuclear Weapons Publication System under the authority of the Secretaries of the Navy, Army and Air Force, the Director of the Defense Special Weapons Agency

(DSWA, formerly the Defense Nuclear Agency), and the DOE. The request for the document and supplements B through F was ultimately referred to the Albuquerque Operations Office of the DOE, and on September 19, 1991, Albuquerque issued a determination to Mr. Milner in which it released only the title and signature pages of each of the documents.(1) Most of the information withheld was determined to be Unclassified Controlled Nuclear Information (UCNI) under the Atomic Energy Act of 1954, as amended, and therefore exempt from mandatory disclosure under Exemption 3 of the FOIA. The remaining withheld information was found to be exempt from mandatory disclosure under Exemption 2 of the FOIA.

On October 7, 1991, Mr. Milner appealed Albuquerque's determination to the Office of Hearings and Appeals. The present Appeal seeks the disclosure of the withheld portions of the requested document. In his appeal, Mr. Milner contends that Albuquerque is "too protective of information regarding the shipment of nuclear weapons" and that the national security does not require such protection. He argues that citizens, particularly those living near the shipment routes, "have a right to know more about these shipments."

II. Analysis

Exemption 2 of the FOIA permits an agency to withhold from public disclosure material "related solely to the internal personnel rules and practices of an agency." 5 U.S.C. § 552(b)(2); 10 C.F.R. § 1004.10(b)(2). Following the Supreme Court's decision in Department of Air Force v. Rose, 425 U.S. 352 (1976), the courts have interpreted Exemption 2 to include two distinct categories of information. The first category, known as "low 2," includes information relating to internal matters of an agency in which the public could not reasonably be expected to have an interest, for example, information concerning lunch hours or parking regulations. Rose, 425 U.S. at 369-370. The second category, "high 2," encompasses information the disclosure of which "may risk circumvention of agency regulation." Id. at 369. Information may be withheld pursuant to "high 2" if (i) it is used for predominantly internal purposes, and (ii) its disclosure significantly risks circumvention of agency regulations or statutes. Crooker v. Bureau of Alcohol, Tobacco and Firearms, 670 F.2d 1051, 1074 (D.C. Cir. 1981).

Exemption 3 provides for withholding material "specifically exempted from disclosure by statute . . . provided that such statute (A) requires that the matters be withheld from the public in such a manner as to leave no discretion on the issue, or (B) establishes particular criteria for withholding or refers to particular types of matter to be withheld." 5 U.S.C. § 552(b)(3); see 10 C.F.R. § 1004.10(b)(3). We have previously determined that the Atomic Energy Act of 1954, 42 U.S.C. §§ 2011-2296, is a statute to which Exemption 3 is applicable. See, e.g., Barton J. Bernstein, 22 DOE ¶ 80,165 (1992); William R. Bolling, II, 20 DOE ¶ 80,134 (1990). Among the types of information of which dissemination is prohibited under the Atomic Energy Act is UCNI. 42 U.S.C. § 2168 (section 148 of the Atomic Energy Act). The portions that Albuquerque deleted from the requested documents under Exemption 3 were withheld on the grounds that they contain UCNI concerning the design, protection, handling, maintenance, and transportation of nuclear weapons.

The Director of Security Affairs (SA) has been designated as the official who shall make the final determination for the DOE regarding FOIA appeals involving the release of UCNI. DOE Delegation Order No. 0204-139, Section 1.l (December 20, 1991). Upon referral of this appeal from the Office of Hearings and Appeals, the Director of SA reviewed those portions of the requested documents that the DOE withheld under Exemption 3, and confirmed Albuquerque's determination that the withheld information is properly considered UCNI and must continue to be withheld under Exemption 3.(2)

However, because the technical manual and its supplements are joint publications of the Department of Defense and the DOE, the Director of SA referred them to the DOD for supplementary review. The DOD, in turn, referred them to the DSWA for review on behalf of all DOD components. The DSWA reviewed the manual and all its supplements, including Supplement A. It concluded that each of them contained information on internal matters the disclosure of which could result in the circumvention of a regulation that would impede the agencies' abilities to perform their assigned roles and functions. The DSWA therefore maintains that this information should be withheld under Exemption 2 of the FOIA. In addition, it concluded that the same documents also contain information that should be protected from disclosure under 10 U.S.C. § 128, which protects the DOD equivalent of UCNI, and therefore withheld under Exemption 3.(3)

Although the specific exemptions and corresponding deletions differ from those that Albuquerque and the Office of Security Affairs previously identified, the DSWA concluded that only the following pages should be released to the public: the title pages; pages containing "List of Effective Pages," which reflect the latest changes; signature and authentication pages; "Certificate of Destruction of Publication" pages; and "Distribution Statement" pages. The denying official for the Department of Defense is Dr. George W. Ullrich, Deputy Director, DSWA. Because we only have jurisdiction to review FOIA determinations made by DOE officials, we cannot review the determination made by DSWA in this case. Therefore, even if we were to complete our review and overrule the initial DOE determination, we would be unable to release any of the information that the DOD now withholds.

Based on the DSWA's review we have determined that, except for the pages containing the administrative information described above, NAVSEA SWOP 45-51 and its supplements B through F must continue to be withheld. Although Mr. Milner has raised a number of arguments in his appeal to the general effect that the public interest requires the release of the documents he has requested, consideration of these arguments is fruitless under the circumstances of this case. Accordingly, Mr. Milner's Appeal will be granted in part and denied in part. Copies of the administrative pages of the requested documents that contain the information now determined to be releasable will be delivered to Mr. Milner.

It Is Therefore Ordered That:

(1) The Appeal filed by Glen Milner on October 7, 1991, Case No. LFA-0159, is hereby granted to the extent set forth in paragraph (2) below and denied in all other respects.

(2) The title pages, pages containing "List of Effective Pages," "Certificate of Destruction of Publication" pages, and "Distribution Statement" pages of the technical manual entitled NAVSEA SWOP 45-51 and its supplements B through F will be provided to Mr. Milner.

(3) This is a final order of the Department of Energy from which any aggrieved party may seek judicial review pursuant to 5 U.S.C. § 552(a)(4)(B). Judicial review may be sought in the district in which the requester resides or has a principal place of business, or in which the agency records are situated, or in the District of Columbia.

George B. Breznay

Director

Office of Hearings and Appeals

Date: April 4, 1997

(1)Supplement A was initially identified as the only document responsive to Mr. Milner's request. The DOE reached a separate initial determination concerning that document, which was appealed in 1988. The final agency determination with respect to that document appears in Glen Milner, 22 DOE ¶ 80,177 (1993). Albuquerque did not review Supplement A in its September 19, 1991 determination because it had recently performed such a review and no significant change to the applicable classification guidance had occurred since that review.

(2)Those portions withheld under Exemption 2 were not sent to the Director of SA but, as explained below, we need not consider them on appeal.

(3)The DSWA also concluded that Supplement A contained, in addition, information currently and properly classified in the interest of national defense under Executive Order 12958 and therefore exempt from mandatory disclosure under Exemption 1, and information currently and properly classified under the Atomic Energy Act and therefore exempt from mandatory disclosure under Exemption 3.