Case No. VFA-0170, 27 DOE ¶ 80,115

March 3, 1998

` DECISION AND ORDER

OF THE DEPARTMENT OF ENERGY

Appeal

Name of Petitioner:Glen Milner

Date of Filing: May 23, 1996

Case Number: VFA-0170

Glen Milner filed an appeal from a determination issued to him on April 22, 1996, by the Department of Energy’s Albuquerque Operations Office (Albuquerque). In that determination, Albuquerque denied in part a request for information that Mr. Milner filed on June 15, 1987, pursuant to the Freedom of Information Act (FOIA), 5 U.S.C. § 552. The information deleted from the documents released to Mr. Milner in that determination was withheld after a review of the documents 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 its April 22, 1996 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 15, 1987, Mr. Milner submitted a request to Albuquerque under the FOIA for all information maintained by the Department of Energy pertaining to several named peace and justice organizations and specifically to James Wilson Douglass and Shelley Mae Douglass of the Ground Zero Center for Nonviolent Action.

Albuquerque located only two responsive documents, which consisted of six pages in total and concerned the shipment of W-76 warheads. Because it determined that the documents contained classified information, Albuquerque forwarded them to the DOE’s Office of Declassification for review. On April 22, 1996, after the Office of Declassification completed its review, Albuquerque released to Mr. Milner a copy of each responsive document. From each document, Albuquerque withheld information it claimed to be classified on either of the following two grounds: (1) the information was determined to be Restricted Data under the Atomic Energy Act of 1954, and is therefore exempt from mandatory disclosure under Exemption 3 of the FOIA, or (2) the information was defined as National Security Information in Executive Order 12958, and is therefore exempt from mandatory disclosure under Exemption 1 of the FOIA.

The present appeal seeks the disclosure of the withheld portions of the documents that Albuquerque provided to Mr. Milner. In his appeal, Mr. Milner states that “there will never be warhead shipments of this nature in the future.” On the basis of that assumption, he contends that release of information concerning past shipments relates to no current program, is of merely historical value, and therefore does not present a threat to national security. (1)

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 responsive documents 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 the Office 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.

The Director of SA considered the concerns Mr. Milner specifically raised in his appeal, and performed as well a general review of the material under the current classification guidance. Based on the review that the Director of SA performed, the DOE has determined that the Atomic Energy Act requires the continued withholding of small portions of those passages of the documents previously identified as classified information. Specifically, the Director of SA has determined that the routes of weapons shipments must continue to be withheld from disclosure because information about routes used in the past could reveal routes that might be used in the future when the weapons need to be returned for modification or disassembly. In addition, he determined that the number of warheads in each shipment must continue to be withheld from disclosure because this information could reveal the amount of special nuclear material contained in specific weapons as well as production rates and stockpile numbers of specific weapons. Under current classification guidance, these categories of information concern nuclear weapons design or military utilization, which is classified as Restricted Data under the Atomic Energy Act. Consequently, this information is being withheld pursuant to Exemption 3 of the FOIA. (2) The remainder of the previously withheld information may now be released, as discussed below.

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 responsive documents 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 within passages that were previously excised in their entirety, and as a result we can now release much of the information that had previously been withheld. Newly redacted versions of the two responsive documents will be provided to Mr. Milner under separate cover. Accordingly, Mr. Milner’s appeal will be granted in part and denied in part.

It Is Therefore Ordered That:

(1) The appeal that Glen Milner filed on May 23, 1996, Case No. VFA-0170, is hereby granted to the extent set forth in paragraph (2) below and denied in all other respects.

(2) Newly redacted versions of the two documents that the Department of Energy’s Albuquerque Operations Office determined to be responsive to Mr. Milner’s June 15, 1987 request under the Freedom of Information Act, in which additional information is now released, will be provided to Mr. Milner under separate cover.

(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: March 3, 1998

(1)In his appeal, Mr. Milner also questions whether the search for responsive documents was conducted for documents in existence as of the date of his request (June 15, 1987) or as of the date of Albuquerque’s response (April 22, 1996). We have verified that, although the search was conducted in 1988, if it had been conducted in 1996, the results would have been the same. Memorandum of Telephone Conversation between Elva Barfield, FOI Officer, Albuquerque Operations Office and William Schwartz, Staff Attorney, Office of Hearings and Appeals (February 10, 1998).

(2)Although the initial determination withheld information contained in these documents under both Exemption 1 and Exemption 3 of the FOIA, the Director of SA now relies on Exemption 3 alone as justification to withhold the information.