Case No. VFA-0166, 25 DOE ¶ 80,210

June 28, 1996

DECISION AND ORDER

OF THE DEPARTMENT OF ENERGY

Supplemental Order

Name of Petitioner: Keith E. Loomis

Date of Filing: May 16, 1996

Case Number: VFA-0166

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 Supplemental Order addresses one aspect of his Appeal that was inadvertently omitted from consideration in a Decision and Order concerning information that was withheld for national security reasons in the October 17 determination. Keith E. Loomis, 25 DOE ¶ 80,183 (1996).

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, were addressed in a later Decision and Order issued on March 25, 1996 (Case No. VFA-0104). Keith E. Loomis, 25 DOE ¶ 80,183 (1996).

It has been brought to our attention that the two Decisions and Orders, when taken together, fail to address one aspect of Mr. Loomis's appeal. One of the documents that Naval Reactors provided, in redacted ("desensitized") form, to Mr. Loomis in response to his request was a Schenectady Naval Reactors investigative report on Mr. Loomis's allegations. Naval Reactors determined that the portions of the document it withheld from disclosure contained "information related to reactor vessel design, evaluation, and analyses" that it identified as Naval Nuclear Propulsion Information (NNPI) and withheld under Exemption 3 of the FOIA. On appeal, Mr. Loomis contended that some of the withheld information in that report are titles of documents, identification numbers and dates, and that such information could not be properly withheld from disclosure. This Decision will address this sole remaining unresolved aspect of Mr. Loomis's appeal.

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 material that Mr. Loomis contended in his Appeal to have been improperly withheld from the investigative report. The Director's review revealed that the contents of the withheld material does not include document titles and identification numbers and dates, as Mr. Loomis has contended. Instead, the withheld portions of the documents contain information regarding specific naval propulsion plant components and other technical information concerning naval reactors.

As a result of that review, the Director of NR concluded that the redacted information should continue to be withheld from Mr. Loomis. 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.

Based on the review performed by the Director of the Office of Naval Reactors, we have determined that 10 C.F.R. § 130 requires the continued withholding of the redacted portions of the investigative report. 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 non-disclosure is required by statute. Accordingly, Mr. Loomis's Appeal will be denied.<1>

It Is Therefore Ordered That:

(1) The portion of Keith E. Loomis's November 21, 1995 Appeal that concerns the withheld portions of a responsive document described as a Schenectady Naval Reactors investigative report on Mr. Loomis's allegations, Case No. VFA-0166, 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: June 28, 1996

<1>Although this report is properly withheld from unrestricted disclosure under the "technical data" statute and Exemption 3 of the FOIA, NR has reiterated to us its offer, first presented to Mr. Loomis in its October 17, 1995 determination letter, to afford him access to the report under appropriate conditions, that is, conditions that would not violate the disclosure restrictions of the "technical data" statute.