Case No. VFA-0189, 37 DOE ¶ 80,163

September 25, 1998

DECISION AND ORDER

OF THE DEPARTMENT OF ENERGY

Appeal

Name of Petitioner:The National Security Archive

Date of Filing: July 12, 1996

Case Number: VFA-0189

On July 12, 1996, the National Security Archive filed an appeal from a determination that the Department of Energy’s Office of Energy Intelligence issued in response to a request the National Security Archive filed on March 17, 1988, pursuant to the Freedom of Information Act (FOIA), 5 U.S.C. § 552. In its determination, Energy Intelligence identified two responsive documents and released one of them after withholding portions of it. This appeal, if granted, would require Energy Intelligence to release the information that it withheld from that document.

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 March 17, 1988, the National Security Archive submitted a request to the DOE under the FOIA for records pertaining to “July 1984 reports that China provided Pakistan with a nuclear weapon design and the decision to halt for one year the U.S. approval of a nuclear trade pact with China.” The Office of Energy Intelligence identified two documents that were responsive to the request. It referred one of the documents, entitled “Pakistan: Nuclear Decision Makers-- Unanimous Opinion,” to the Central Intelligence Agency (CIA) for review, and the CIA provided that document to the appellant. This document is not at issue in the present appeal. Energy Intelligence provided the second responsive document, a March 6, 1985 “Intelligence Note” from John B. Stewart to James C. McAvoy, to the appellant after deleting most of its content. The information was withheld as the result of a review of the document by the DOE’s Office of Declassification, which determined that

it contained information classified as National Security Information (NSI) and therefore exempt from mandatory disclosure under Exemption 1 of the FOIA.

On June 12, 1996, the National Security Archive appealed Energy Intelligence’s determination to the Office of Hearings and Appeals. The present appeal seeks the disclosure of some, if not all, of the withheld portions of the “Intelligence Note.” In its appeal, the National Security Archive states that a great deal of information has been revealed to the public about Pakistan’s nuclear program through extensive media coverage and unclassified Congressional hearings. It contends that, given the level of public knowledge, “it seems unlikely that national security would be harmed by release of additional information from this document.”

II. Analysis

Although Energy Intelligence’s determination withheld information from the requester only under Exemption 1 of the Freedom of Information Act, both Exemption 1 and Exemption 3 have been considered in this appellate review. Exemption 1 provides that an agency may exempt from disclosure matters that are "(A) specifically authorized under criteria established by an Executive order to be kept secret in the interest of national defense or foreign policy and (B) are in fact properly classified pursuant to such Executive order." 5 U.S.C. § 552(b)(1); see 10 C.F.R. § 1004.10(b)(1). Executive Order 12958 is the current Executive Order that provides for the classification, declassification and safeguarding of national security information. When properly classified under this Executive Order, national security information is exempt from mandatory disclosure by Exemption 1. See National Security Archive, 26 DOE ¶ 80,118 (1996); Keith E. Loomis, 25 DOE ¶ 80,183 (1996); A. Victorian, 25 DOE ¶ 80,166 (1996).

Exemption 3 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 statutes underlying the claim of Exemption 3 in this case are the National Security Act of 1947 and the Central Intelligence Agency Act of 1949. The federal courts have found each of these statutes to be a statute on which withholdings under Exemption 3 may be supported. See, e.g., CIA v. Sims, 471 U.S. 159, 167 (1985) (section 102(d)(3) of the National Security Act, 50 U.S.C. § 403(d)(3), precursor of current 50 U.S.C. § 403-3(c)(5)); Minier v. Sims, 88 F.3d 796, 801 (9th Cir. 1996) (section 6 of the Central Intelligence Agency Act, 50 U.S.C. § 403g).

The Director of Security Affairs (SA) has been designated as the official who makes 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 that the DOE withheld under Exemption 1, and determined that they do not contain any DOE classified information.

However, because the document under consideration contains intelligence information, the Director of SA referred it to the CIA for supplementary review. The CIA concluded that several small portions of the document consist of information regarding intelligence activities, sources or methods and foreign relations or activities, which have been classified as NSI under Section 1.5(c) and (d) of Executive Order 12958, and must continue to be protected from public disclosure under Exemption 1 of the FOIA. The CIA also determined that one additional passage in the document was withheld under Exemption 3 of the FOIA on the grounds that it contains intelligence sources and methods (protected under section 102(d)(3) of the National Security Act) and the organization, names and functions of CIA personnel (protected under section 6 of the Central Intelligence Agency Act).

The Denying Officer for the CIA is Mr. Lee S. Strickland, Information and Privacy Coordinator. Because we only have jurisdiction to review FOIA determinations made by DOE officials, we cannot review the determination that the CIA made in this case.

Based on the CIA’s review we have determined that the March 6, 1985 “Intelligence Note” from John B. Stewart to James C. McAvoy, redacted to withhold those portions the CIA protected under Exemptions 1 and 3 of the FOIA, may be released to the appellant. Accordingly, the National Security Archive’s appeal will be granted in part and denied in part. A copy of that document that contains the information now determined to be releasable will be delivered to the National Security Archive.

It Is Therefore Ordered That:

(1) The appeal filed by the National Security Archive on July 12, 1996, Case No. VFA-0189, is hereby granted to the extent set forth in paragraph (2) below and denied in all other respects.

(2) The March 6, 1985 “Intelligence Note” from John B. Stewart to James C. McAvoy, redacted to withhold from disclosure information that the Central Intelligence Agency has determined to be classified, will be provided to the National Security Archive.

(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: September 25, 1998