Case No. VFA-0104, 25 DOE ¶ 80,183

March 25, 1996

DECISION AND ORDER

OF THE DEPARTMENT OF ENERGY

Appeal

Name of Petitioner: Keith E. Loomis

Date of Filing: November 21, 1995

Case Number: VFA-0104

Keith E. Loomis filed an Appeal from a determination issued to him on October 17, 1995, by the Office of Naval Reactors of the Department of Energy. In that determination, Naval Reactors denied in part a request for information that Mr. Loomis initially filed on April 10, 1995, pursuant to the Freedom of Information Act (FOIA), 5 U.S.C. § 552. After assisting Mr. Loomis with subsequent modifications to his request, Naval Reactors ultimately responded by releasing some documents responsive to portions of his modified request, withholding some material under the exceptions to mandatory disclosure permitted under the FOIA, and stating that other documents requested either were not found or were known not to exist. This Appeal, if granted, would require the DOE to release the information that was withheld for national security reasons in the October 17, 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

In his Appeal, Mr. Loomis contended that the DOE's search for responsive documents was inadequate and that its failure to disclose the material it withheld under Exemptions 1, 3, and 6 of the FOIA was improper. In order to handle this case as efficiently as possible, the Office of Hearings and Appeals bifurcated this Appeal, separating those issues on which it could rule without additional Departmental support from those issues requiring such support. As a result, this Office issued a final Decision and Order regarding the adequacy of Naval Reactors' search and its invocation of the FOIA's Exemption 6 on December 21, 1995 (Case No. VFA-0102). Keith E. Loomis, 25 DOE ¶ 80,155 (1995). The remaining issues, which concern Naval Reactors' withholding of certain information pursuant to Exemptions 1 and 3 of the FOIA, will be addressed in this Decision and Order.

In his request, Mr. Loomis sought, among other documents, "[c]opies of all Radiation Surveys conducted at the Windsor Site on March 8, 1988, and the containment layout plan," and "[c]opies of the Basic Reference Documents DOE provides to Prime Contractors as guidance for the propagation of Radiological Control requirements and procedures to protect the health and lives of Rad Con workers," further specified as two documents, NAVSEA 389-0153 and NAVSEA 389-0288. In its October 17, 1995 response, Naval Reactors withheld the containment layout plan, asserting that the plan "is classified CONFIDENTIAL since it reveals the arrangement of, and numbers of components in, a Naval nuclear propulsion plant," and withholding the plan under Exemption 1 of the FOIA. NAVSEA 389-0153 was also determined to be classified as confidential and withheld under Exemption 1. NAVSEA 389-0288 was determined to be Naval Nuclear Propulsion Information (NNPI), the disclosure of which is restricted by statute, and was therefore withheld under Exemption 3. According to the response, both of these documents "reveal extensive information about practices and procedures implemented in the Naval nuclear propulsion program regarding the management of radioactivity, which would be of value to foreign nations."

In his Appeal, Mr. Loomis contends that the type of map he is seeking, "a lowest level plant layout sketch or map . . . posted at or near the reactor compartment entry checkpoint," the purpose of which is "to protect radiation workers' health and safety," should not be classified because it "in no way relate[s] to the design and operation of U.S. warships and associated support facilities." With respect to the NAVSEA documents, Mr. Loomis contends that any portions of those documents that implement the DOE's policy of conducting radiological operations "in a manner that ensures the health and safety of" all workers and the public should be segregated and released.

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 also 10 C.F.R. § 1004.10(b)(1). Executive Order 12958 is the current Executive Order that provides for the classification of information concerning "programs for safeguarding nuclear materials or facilities." Executive Order 12958, § 1.5(f). The Executive Order also provides for the classification of compilations of unclassified items if the compilations meet established standards. Executive Order 12958, § 1.8(e). Information properly classified under this Executive Order is exempt from mandatory disclosure by Exemption 1. See A. Victorian, 25 DOE ¶ 80,166 (1996).

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). The controlling statutory provision in this case is 10 U.S.C. § 130, which permits the Secretary of Defense to withhold from public disclosure "any technical data with military or space application in the possession of, or under the control of, the Department of Defense, if such data may not be exported lawfully outside the United States without an approval, authorization, or license" granted under specified statutes. 10 U.S.C. § 130(a). The term "technical data with military or space application" is defined as "any blueprints, drawings, . . . or other technical information that can be used, or be adapted for use, to design, engineer, produce, manufacture, operate, repair, overhaul, or reproduce any military or space equipment or technology concerning such equipment." 10 U.S.C. § 130(c).

The "technical data" statute has been found to satisfy subpart (B) of the Exemption 3 criteria because it refers to sufficiently "particular types of matter to be withheld." Chenkin v. Department of the Army, No. 93-494, slip op. at 7 (M.D. Pa. Jan. 14, 1994), affirmed, 61 F.3d 894 (3d Cir. 1995); Colonial Trading Corp. V. Department of the Navy, 735 F. Supp. 429, 431 (D.D.C. 1990). It therefore qualifies as a statute upon which a claim of withholding under Exemption 3 may be based. The federal regulations treat NNPI as technical data with military application of the sort envisioned in 10 C.F.R. § 130. See, e.g., 15 C.F.R. §§ 778.1, 778.5. Consequently, information accurately identified as NNPI is exempt from mandatory disclosure to the public under Exemption 3 of the FOIA.

Consistent with Executive Order 12344, 3 C.F.R. 128 (1982), reprinted in 42 U.S.C. § 7158 (1995), and statutorily prescribed by the Department of Defense Authorization Act, P.L. 98-525, 98 Stat. 2492 (1984), the Director of the Office of Naval Reactors (Director of NR) has been designated as the official who shall make the final determination for the DOE regarding FOIA appeals involving classified Naval Reactors information and NNPI. Upon referral of this Appeal from the Office of Hearings and Appeals, the Director of NR reviewed the containment layout plan and the two NAVSEA documents and concluded that they should continue to be withheld from Mr. Loomis in their entirety.

In his review of the containment layout plan initially identified and withheld by the DOE, the Director of NR verified that the identified document was in fact the plan used by the radiological controls personnel during the relevant period to indicate radiation levels in the reactor compartment at the Windsor site. The Director of NR then reviewed that responsive document to determine whether it contained classified information. Because the plan is a scale drawing that shows the number and arrangement of components and major structures in the reactor compartment and labels the components and structures, he concluded that the plan is properly classified under section 1.5 of Executive Order 12958 and accordingly exempt from mandatory disclosure under Exemption 1 of the FOIA.

With respect to NAVSEA 389-0153, the Director of NR determined on review that release of the document would reveal programmatic and technical information about the design and operations of nuclear-powered warships. Although individual items of information contained in this document may arguably be unclassified, the Director of NR determined that the compilation of the information in this document "reveals an additional association or relationship that (1) meets the standards for classification under [Executive Order 12958] and (2) is not otherwise revealed in the individual items of information." Executive Order 12958, § 1.8. Consequently, the Director of NR concluded that NAVSEA 389-0153 is properly classified in its entirety under sections 1.5 and 1.8 of Executive Order 12958 and accordingly is exempt from mandatory disclosure under Exemption 1 of the FOIA.

Finally, after reviewing NAVSEA 389-0288, the Director of NR determined that release of this document would reveal programmatic and technical information about the overhaul and maintenance of the United States Navy nuclear propulsion plants. Although not classified, this information is defined by the Navy as NNPI, the uncontrolled dissemination of which to foreign nationals is prohibited by 10 U.S.C. § 130 and the regulations cited above. The Director of NR maintains that because Naval Reactors would be unable to control the further dissemination of the NNPI contained in the requested document if it were released to the requester or any other member of the public, disclosure of this information would be tantamount to disclosure to foreign nationals. Such disclosure is therefore prohibited by the "technical data" statute and accordingly is exempt from mandatory disclosure under Exemption 3 of the FOIA.

The Director of NR also reviewed the two NAVSEA documents to consider the possibility of release of portions of the documents that are responsive to Mr. Loomis's request yet are not classified or controlled. He concluded that those portions are not reasonably segregable from those responsive portions that must be withheld from disclosure under Exemptions 1 and 3. Accordingly, the Director of NR determined that the two NAVSEA documents should be withheld in their entireties.

III. Conclusion

Based on the review performed by the Director of the Office of Naval Reactors, we have determined that Executive Order 12958, which currently governs the protection of classified information, requires the continued withholding of the entire contents of the containment layout plan and NAVSEA 389-0153, two of the items requested in Mr. Loomis's request under the FOIA. Based on that same review, we have also determined that 10 C.F.R. § 130 requires the continued withholding of the entire NAVSEA 389-0288, due to the Naval Nuclear Propulsion Information contained in that document. 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 non-disclosure is required by statute or Executive Order. Accordingly, Mr. Loomis's Appeal will be denied.

It Is Therefore Ordered That:

(1) The Appeal filed by Keith E. Loomis on November 21, 1995, Case No. VFA-0104, is 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: March 25, 1996