Case No. VFA-0033, 26 DOE ¶ 80,118

September 13, 1996

DECISION AND ORDER

OF THE DEPARTMENT OF ENERGY

Appeal

Name of Petitioner: National Security Archive

Date of Filing: March 13, 1995

Case Number: VFA-0033

The National Security Archive filed an Appeal from a determination issued to it on February 3, 1995, by the Department of Energy's Oakland Operations Office (Oakland). In that determination, Oakland denied in part a request for information that the National Security Archive filed on April 7, 1988, and modified on April 26, 1988, pursuant to the Freedom of Information Act (FOIA), 5 U.S.C. § 552. The information deleted from the document released to the National Security Archive in that determination was withheld after a review of the document had been performed by the predecessor of the Office of Declassification of the Department of Energy's Office of Security Affairs. This Appeal, if granted, would require Oakland to release the information that it withheld in the February 3, 1995 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 April 7, 1988, Craig Keller of the National Security Archive submitted a request under the FOIA to the Department of Defense (DOD) for "[c]opies of all records including but not limited to reports, memoranda, interviews, meeting minutes, and correspondence cited in or relating in whole or in part to the ?Nth Country Experiment,' an experiment initiated by the Lawrence Livermore National Laboratory in May 1964." The National Security Archive amended its request on April 26, 1988, and requested

only the formal report, "Summary Report of the Nth Country Experiment (UCRL-50249)" (the Report). A May 6, 1988 letter to Mr. Keller informed him that the Report contained classified information and was being forwarded to the DOE's Office of Classification (now the Office of Declassification) for review. On February 3, 1995, after the Office of Declassification completed its review, Oakland released to Mr. Keller a copy of the Report from which it withheld information it claimed to be classified as National Security Information pursuant to Executive Order 12356 and as Restricted Data pursuant to the Atomic Energy Act of 1954, and therefore exempt from mandatory disclosure under Exemptions 1 and 3, respectively, of the FOIA.

The present Appeal seeks the disclosure of the withheld portions of the requested document. In its Appeal, the National Security Archive contends that release of at least some of those portions could no longer reasonably be expected to cause damage to the national security and that there is substantial public interest in the withheld information.

II. Analysis

Exemption 1 of the FOIA provides that an agency may exempt from disclosure matters that are "(A) specifically authorized under criteria established by an Executive order to be kept secret in the interest of national defense or foreign policy and (B) are in fact properly classified pursuant to such Executive order." 5 U.S.C. § 552(b)(1); see 10 C.F.R. § 1004.10(b)(1). Executive Order 12958 is the current Executive Order that provides for the classification, declassification and safeguarding of national security information. Its predecessor, Executive Order 12356, was in effect at the time the initial determination was issued. When properly classified under this Executive Order, national security information is exempt from mandatory disclosure by Exemption 1. See Keith E. Loomis, 25 DOE ¶ 80,183 (1996); A. Victorian, 25 DOE ¶ 80,166 (1996). According to the Office of Declassification, the information withheld pursuant to Exemption 1 in this case consists of sensitive details of nuclear weapons design.

Exemption 3 of the FOIA 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). According to the Office of Declassification, the portions that the DOE deleted from the requested document under Exemption 3 were withheld on the grounds that they contain information about nuclear weapons design that has been classified as Restricted Data under the Atomic Energy Act and is therefore exempt from mandatory disclosure.

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 classified information. 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 document for which the DOE had claimed exemptions from mandatory disclosure under the FOIA.

In performing his review the Director of SA considered the two issues that the National Security Archive has raised on appeal. The National Security Archive's first contention is that the predecessor Executive Order to Executive Order 12958 (Executive Order 12356) contained language, as does the current Order, specifying that information should be classified only if its disclosure could reasonably be expected to cause damage to the national security, and that some of the withheld information no longer meets that criterion. In consideration of this contention, the Director of SA reviewed all the information that was deleted from the copy of the Report provided in the DOE's initial response. As a result of that review, the Director of SA determined that no additional portions of the Report may now be declassified, because all of the information initially withheld continues to be classified as either National Security Information or Restricted Data.

Its second contention is that, despite the public interest in the information, the DOE has withheld the Report's conclusions that appear on page 8. The Director of SA informed us that the information withheld on page 8 of the Report does not consist of conclusions; the Report's conclusions start at page 15, and the great majority of them have been released. He also informed us that those portions of the conclusions that were withheld initially continue to be properly classified as either National Security Information or Restricted Data.

Based on the review performed by the Director of SA, we have determined that Executive Order 12958 and the Atomic Energy Act require the continued withholding of those portions of the Report that were previously identified as classified information. Although a finding of exemption from mandatory disclosure generally requires our subsequent consideration of the public interest in releasing the information nevertheless, such consideration is not permitted where, as in the application of Exemptions 1 and 3, the disclosure is prohibited by statute or Executive Order. Therefore, those portions of the Report that the Director of SA has determined to be properly classified must continue to be withheld from disclosure. However, on review the Director of SA was able to perform more precise deletions throughout the Report, and as a result we can now release some information that had previously been withheld. A newly redacted version of the Report will be provided to the National Security Archive under separate cover. Accordingly, the National Security Archive's Appeal will be granted in part and denied in part.

It Is Therefore Ordered That:

(1) The Appeal filed by the National Security Archive on May 14, 1993, Case No. VFA-0033, is hereby granted to the extent set forth in paragraph (2) below and denied in all other respects.

(2) A newly redacted version of the "Summary Report of the Nth Country Experiment (UCRL-50249)," in which additional information is released, will be provided to the National Security Archive.

(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: September 13, 1996