Case No. VFA-0188, 27 DOE ¶ 80,148

June 22, 1998

DECISION AND ORDER

OF THE DEPARTMENT OF ENERGY

Appeal

Name of Petitioner:Michael J. Ravnitzky

Date of Filing: July 2, 1996

Case Number: VFA-0188

Michael J. Ravnitzky filed an appeal from a determination that the Albuquerque Operations Office issued to him on June 12, 1996. In that determination, the DOE denied in part a request for information that Mr. Ravnitzky filed on August 8, 1992, pursuant to the Freedom of Information Act (FOIA), 5 U.S.C. § 552. At that time, Albuquerque provided Mr. Ravnitzky with a copy of the document he sought, with certain information deleted. The withheld information was deleted from Mr. Ravnitzky’s copy 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 the Department of Energy (DOE) to release much of the information that it withheld in its June 12, 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 August 8, 1992, Mr. Ravnitzky submitted a request under the FOIA for a copy of Volume 0 (Zero) of the Los Alamos Technical Series, entitled “Relation Between the

Various Activities of the Laboratory” and written by S.K. Allison and dated December 23, 1946. The Los Alamos National Laboratory located that document and the DOE’s Office of Declassification noted, upon review, that it contained classified Restricted Data and Unclassified Controlled Nuclear Information (UCNI). As a result of its review, the Office of Declassification provided Albuquerque with a redacted version of the document. On June 12, 1996, Albuquerque released that version to Mr. Ravnitzky. In its determination letter accompanying the released document, Albuquerque informed Mr. Ravnitzky that the Atomic Energy Act of 1954, 42 U.S.C. § 2011 et seq., prohibited the disclosure of restricted data (sections 141-146) and UCNI (section 148). As a result, the information was withheld under Exemption 3 of the FOIA.

The present appeal seeks the disclosure of the portions of the document that the DOE withheld from Mr. Ravnitzky. In his appeal, Mr. Ravnitzky contends that the deletion made were overly broad and that, in any event, the great age of the requested report has trivialized the information contained therein and eliminated the need for protecting that information from disclosure.

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., The National Security Archive, 27 DOE ¶ 80,130 (1998); Barton J. Bernstein, 22 DOE ¶ 80,165 (1992).

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 specific concerns that Mr. Ravnitzky 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 all information regarding the design details of nuclear devices, despite its age. Although Mr. Ravnitzky has argued that the public has a right to know what the government did at Los Alamos, the nuclear weapons design information contained in the report remains classified for reasons of national security and nonproliferation, because it would provide those with access to it the necessary knowledge to build such weapons. Under current classification guidance, this category of information is classified as Restricted Data under the Atomic Energy Act. Consequently, this information is being withheld pursuant to Exemption 3 of the FOIA.

The Director of SA has also determined, however, that a great deal of information that was deleted from the copy of the document provided to Mr. Ravnitzky may now be released. To maximize efficiency, the initial deletions were made on a sentence-by-sentence basis. In doing so, some unclassified information was excised along with classified information. On appeal, only those words that reveal or infer classified information have been deleted. In addition, information initially withheld because it was considered to be UCNI may now be released. The considerable amount of initially withheld information that may now be released should help Mr. Ravnitzky understand the general nature of the deleted portions without revealing classified information.

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, the portion of the responsive document that the Director of SA has determined to be properly classified must continue to be withheld from disclosure without considering the public interest issue. A newly redacted version of the responsive document will be provided to Mr. Ravnitzky under separate cover. Accordingly, Mr. Ravnitzky’s appeal will be granted in part and denied in part.

It Is Therefore Ordered That:

(1) The Appeal that Michael J. Ravnitzky filed on July 2, 1996, Case No. VFA-0188, 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 text of Volume 0 (Zero) of the Los Alamos Technical Series, entitled “Relation Between the Various Activities of the Laboratory” and written by S.K. Allison and dated December 23, 1946, in which additional information is now released, will be provided to Mr. Ravnitzky 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: June 22, 1998