Case No. VFA-0087, 27 DOE ¶ 80,199

April 16, 1999

DECISION AND ORDER

OF THE DEPARTMENT OF ENERGY

Appeal

Name of Petitioner: Stanley Goldberg

Date of Filing: September 27, 1995

Case Numbers: VFA-0087

VFA-0088

Stanley Goldberg filed Appeals from determinations issued to him on August 28, 1995, by the National Archives and Records Administration (NARA). In those determinations, NARA denied in part a request for information that Dr. Goldberg filed on June 16, 1989 (Case No. VFA-0087), and denied in full a request for information that he filed on March 16, 1990 (Case No. VFA-0088), pursuant to the Freedom of Information Act (FOIA), 5 U.S.C. § 552. The information deleted from the document released to Dr. Goldberg in the June 16 determination, as well as the entirety of the remaining requested documents, were withheld after a review of the document had been performed by the Department of Energy (DOE). This Appeal, if granted, would require the DOE to release the information that it instructed NARA to withhold in the August 28, 1995 determinations.

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 June 16, 1989, Dr. Goldberg submitted a request under the FOIA to NARA for a number of documents authored by Samuel Goudsmit. In April 1993, NARA requested that the DOE review those documents for classification purposes. An August 1995 letter from NARA informed Dr. Goldberg that the DOE had determined that one document could be released in part and the remaining documents were classified and must be withheld in full.

On March 16, 1990, Dr. Goldberg submitted a similar request to NARA, for all materials in Box 3, Folder 12 of a collection of papers authored by Dr. Goudsmit. NARA requested

classification review by the DOE and, in a second August 1995 letter, informed Dr. Goldberg that the DOE had determined that all the requested documents were classified and must be withheld in full. In both of the above instances, NARA stated that the material that was responsive to Dr. Goldberg's requests but not released to him was withheld under Exemption 1 of the FOIA. NARA provided no basis for its application of that exemption to withhold information from Dr. Goldberg.

The present Appeals seek the disclosure of all the material withheld from Dr. Goldberg in both determinations. In his Appeals, Dr. Goldberg stated that the denials were so general that he was unable to formulate specific arguments, but nonetheless contended that the materials should be released because they are at least 40 years old and therefore unlikely still to affect the national security. Moreover, Dr. Goldberg contended that some of the documents have already been made public.

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. When properly classified under this Executive Order, national security information is exempt from mandatory disclosure under Exemption 1. See National Security Archive, 26 DOE ¶ 80,118 (1996); Keith E. Loomis, 25 DOE ¶ 80,183 (1996); A. Victorian, 25 DOE ¶ 80,166 (1996). According to the Office of Declassification, the national security information withheld in this case relates to intelligence sources, methods, and activities, which is protected by Section 1.5(c) of the Executive Order and is therefore exempt from mandatory disclosure under Exemption 1 of the FOIA.

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 all materials for which the DOE had claimed an exemption from mandatory disclosure under the FOIA.

In performing his review the Director of SA considered the two issues that Dr. Goldberg raised on appeal. Despite Dr. Goldberg's assertions that the withheld materials are more than 40 years old and that some of them have been released to the public, the Director of SA has determined that no additional portions of requested documents may now be released under the FOIA, because all of the information initially withheld continues to be properly classified as national security information under Section 1.5(c) of Executive Order 12958.

Based on the review performed by the Director of SA, we have determined that Executive Order 12958 requires the continued withholding of the materials responsive to Dr. Goldberg's requests 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 Exemption 1, the disclosure is prohibited by Executive Order. Therefore, those portions of the responsive documents that the Director of SA has determined to be properly classified must continue to be withheld from disclosure. Accordingly, Dr. Goldberg's Appeals will be denied.

It Is Therefore Ordered That:

(1) The Appeals filed by Stanley Goldberg on September 27, 1995, Case Nos. VFA-0087 and VFA-0088, are hereby denied.

(2) 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 16, 1999