Case No. VFA-0117, 26 DOE ¶ 80,203

July 21, 1997

DECISION AND ORDER

OF THE DEPARTMENT OF ENERGY

Appeal

Name of Petitioner:Barton J. Bernstein

Date of Filing: January 22, 1996

Case Number: VFA-0117

Barton J. Bernstein filed an Appeal from a determination issued to him on December 22, 1995, by the Department of Energy's Albuquerque Operations Office (Albuquerque). In that determination, Albuquerque denied in part a request for information that Dr. Bernstein filed on June 27, 1994, pursuant to the Freedom of Information Act (FOIA), 5 U.S.C. § 552. The information deleted from the document released to Dr. Bernstein in that determination was withheld after a review of the document had been performed by the Office of Declassification of the Department of Energy's Office of Security Affairs. This Appeal, if granted, would require Albuquerque to release the information that it withheld in the December 22, 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 June 27, 1994 Dr. Bernstein submitted a request to Albuquerque under the FOIA for a copy of the Minutes of the February 24, 1944 meeting of the Los Alamos Governing Board (Minutes). After locating and reviewing the responsive document, Albuquerque forwarded it to the DOE's Office of Declassification for review. On December 22, 1995, after the Office of Declassification completed its review,

Albuquerque released to Dr. Bernstein a copy of the Minutes from which it withheld information it claimed to be classified as Restricted Data pursuant to the Atomic Energy Act of 1954, and therefore exempt from mandatory disclosure under Exemption 3 of the FOIA.

The present Appeal seeks the disclosure of the withheld portions of the requested document. In his Appeal, Dr. Bernstein contends that under a more judicious, and less mechanical, application of Exemption 3, much, if not all, of those portions could be declassified and released.

II. Analysis

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 an exemption from mandatory disclosure under the FOIA.

In performing his review the Director of SA considered the concerns Dr. Bernstein specifically raised in his appeal, and performed as well a general review of the material under the current classification guidance. From the context of the surrounding passages, Dr. Bernstein presumed the substance of the three withheld sections of the Minutes, and on the basis of those presumptions, he contended that the material deleted could safely be declassified.

Based on the review performed by the Director of SA under current classification guidance, we have determined that the Atomic Energy Act requires the continued withholding of most of those portions of the Minutes 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 3, the disclosure is prohibited by statute. Therefore, those portions of the Minutes 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 of one of the three passages previously excised, and as a result we can now release some information that had previously been withheld. A newly redacted version of the Minutes will be provided to Dr. Bernstein under separate cover. Accordingly, Dr. Bernstein's Appeal will be granted in part and denied in part.

It Is Therefore Ordered That:

(1) The Appeal filed by Barton J. Bernstein on January 22, 1996, Case No. VFA-0117, 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 Minutes of the February 24, 1944 Meeting of the Governing Board, Los Alamos, New Mexico, in which additional information is released, will be provided to Dr. Bernstein.

(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: July 21, 1997