Case No. VFA-0185, 27 DOE ¶ 80,176

December 22, 1998

DECISION AND ORDER

OF THE DEPARTMENT OF ENERGY

Appeals

Names of Petitioners:Vernon J. Brechin

Paul McGinnis

Dates of Filings:June 26, 1996

July 17, 1996

Case Numbers:VFA-0185

VFA-0194

Vernon J. Brechin and Paul McGinnis filed appeals from determinations issued to them on June 10, 1996 and June 17, 1996 respectively, by the Nevada Operations Office (Nevada) of the Department of Energy. In those determinations, Nevada stated that it could neither confirm nor deny the existence of the records that Mr. Brechin and Mr. McGinnis sought in their respective requests for information. These requests were filed pursuant to the Freedom of Information Act (FOIA), 5 U.S.C. § 552, and dated February 20, 1996 and March 6, 1996.

I. Background

In his request, Mr. Brechin sought a copy of a document describing the delegation of management responsibilities from the Atomic Energy Commission or from the Department of Energy to the U.S. Air Force for a portion of land in Nevada known as "Area 51" or "the United States Air Force's operating location near Groom Lake, Nevada (Groom Lake)." In his request, Mr. McGinnis sought,inter alia, "[a]ny memorandums of understanding between the U.S. Department of Energy and the U.S. Air Force (or any other descriptive material) concerning the Air Force's facility at Groom Lake, Nevada." In its June 10 and June 17, 1996 responses, Nevada replied to each requester that, “[t]his office can neither confirm nor deny the existence of any documents responsive to your request.” The basis for Nevada's response appears to be that the existence or non-existence of the requested documents is itself a classified fact.

The requesters make several arguments regarding these appeals. Mr. Brechin argues that Nevada's response is not in compliance with 10 C.F.R. § 1004.5(b)(1) and similarly, Mr. McGinnis argues that

the response does not comply with 10 C.F.R. § 1004.7(b)(1).(2) Mr. McGinnis further argues that neither the FOIA nor the DOE regulations provides for the type of response which Nevada made. Next, Mr. McGinnis claims that Nevada's response that it cannot confirm the existence of the requested documents is untenable because he already received one of the requested documents from a non-DOE source, which he submitted with this appeal. Finally, Mr. McGinnis argues that if any requested documents exist, they should be released because release would serve the public interest. He bases his public interest claim on his belief that the requested documents could provide relevant evidence in several ongoing lawsuits alleging that employees have been exposed to toxic chemicals at the Groom Lake facility. None of these arguments affects the OHA's determination in these appeals, as explained below.

II. Analysis

Although the Department rarely responds to requests for information in this manner, Nevada's statement that it will neither confirm nor deny the existence of records is not without precedent. This type of response is commonly called a Glomar response, which refers to the first instance in which the adequacy of such a response was upheld by a Federal court. In Phillippi v. CIA, the agency responded to a request for documents pertaining to a submarine-retrieval ship named the Hughes Glomar Explorer by neither confirming nor denying the existence of any such documents. Phillippi v. CIA, 546 F.2d 1009 (D.C. Cir. 1976). Agencies have typically used this response where the existence or non-existence of requested documents is itself a classified fact exempt from disclosure under Exemptions 1 and 3 of the Freedom of Information Act, see, e.g., id. at 1012, or where admission that documents exist would indicate that the agency was involved in a certain issue, Gardels v. CIA, 689 F.2d 1100 (D.C. Cir. 1982), or that an individual is the target of investigation or surveillance, Marrera v. Department of Justice, 622 F. Supp. 51 (D.D.C. 1985). Thus, the FOIA does not bar a Glomar response. In addition, this Office has upheld the adequacy of the DOE’s Glomar response where, as here, the existence or non-existence of requested documents is classified. A. Victorian, 25 DOE ¶ 80,188 (1996). The DOE regulation Mr. McGinnis cited, 10 C.F.R. § 1004.7(b)(1), does not apply in this instance since the Glomar response is not a denial. Further, although the DOE regulation Mr. Brechin cited, 10 C.F.R. § 1004.5(b), does not appear to contemplate a Glomar response, nevertheless, the courts permit this type of response in appropriate circumstances.

Mr. McGinnis has also raised arguments in his appeals specifically related to his request. He argues that the public interest requires the release of the requested documents because they could lead to relevant evidence in an ongoing civil suit concerning exposure of employees to toxic chemicals at the facility. We do not agree. Public interest considerations are not a factor in the FOIA matter where the existence or non-existence of requested documents is classified. Cf. Ferenc M. Szasz, 25 DOE ¶ 80,117 (1995) (public interest considerations not a factor in applying FOIA Exemptions 5 U.S.C. §§ 552(b)(1) and (3)).

Mr. McGinnis further argues that his possession of one of these documents shows the untenableness of Nevada's Glomar response that it cannot confirm the existence of the documents. Although Mr. McGinnis did not elaborate on this argument, we infer that he believes that FOIA protection of one of the documents he seeks has been waived; that is, because he has produced what he alleges to be a copy of one of the document he seeks, the DOE may no longer refuse to confirm or deny its existence. We disagree. Mr. McGinnis has not made the necessary showing that the document he possesses meets the latter two of the three requirements for waiving FOIA protection laid out by the D.C. Circuit in Fitzgibbon v. Central Intelligence Agency, 911 F.2d 755 (D.C. Cir. 1990). These criteria are the following: (1) the information requested is as specific as the information previously released; (2) the information matches the information previously disclosed; and (3) the information requested was already made public through an official and documented disclosure. Id. at 765 (citing Afshar v. Department of State, 702 F.2d 1125, 1133 (D.C. Cir. 1983)). Since he has requested any "memorandums of understanding" about the Groom Lake Facility between the DOE and the U.S. Air Force, and has submitted what he has alleged to be such a memorandum of understanding, he appears to have met the first criterion and requested a document as specific as the one he possesses. We cannot make a determination regarding the second criterion because we cannot answer whether requested documents exist or not. But regarding the third criterion, Mr. McGinnis said only that he received the submitted document from "another source." He has therefore not met his burden of showing that the document was released in an official and documented disclosure. See Davis v. Department of Justice, 968 F.2d 1276, 1279-82 (D.C. Cir. 1992). Therefore, no FOIA protection has been waived.

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). OHA referred both of these appeals to the DOE Office of Declassification (OD), to which SA has delegated the duty to prepare SA's determinations on FOIA appeals involving classified matters. The Director, Policy and Quality Management Division, OD, further referred them to the Office of the Secretary of Defense (Public Affairs) (OSD(PA)) because the Groom Lake facility at issue is now an Air Force facility. The OSD(PA) referred the appeals to the Director, Security and Special Program Oversight (SSPO), within the Department of the Air Force, for supplementary review. The Director, SSPO, Eugene F. Boesch, Jr., concluded that the Air Force can neither confirm nor deny the existence of documents responsive to the requests at issue. This position was concurred with by OSD(PA). Because of the Air Force's exclusive responsibility for the Groom Lake facility, SA stated that it defers to their judgment. Accordingly, Mr. McGinnis' and Mr. Brechin's appeals must be denied.

It Is Therefore Ordered That:

(1) The Appeal filed by Vernon J. Brechin on June 26, 1996, Case No. VFA-0185, is hereby denied.

(2) The Appeal filed by Paul McGinnis on July 17, 1996, Case No. VFA-0194, is hereby denied.

(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: December 22, 1998

(1)1/ "The Authorizing Official will promptly identify and review the records encompassed by the request. The Authorizing Official will prepare a written response (1) granting the request, (2) denying the request, (3) granting/denying it in part, (4) replying that the request has been referred to another agency under Section 1004.4(f) or Section 1004.6(e), (5) informing the requester that responsive records cannot be located or do not exist."

(2)2/ "Form of denial. A reply denying a request for a record will be in writing. It will name the Denying Official pursuant to Section 1004.5(b) or (c) and will include: (1) Reason for denial. A statement of the reason for denial, containing a reference to the specific exemption under the Freedom of Information Act authorizing the withholding of the record and a brief explanation of how the exemption(s) applies to the record withheld, and a statement of why a discretionary release is not appropriate."