Case No. VFA-0196, 27 DOE ¶ 80,130

April 16, 1998

DECISION AND ORDER

OF THE DEPARTMENT OF ENERGY

Appeal

Name of Petitioner:The National Security Archive

Date of Filing: July 24, 1996

Case Number: VFA-0196

The National Security Archive filed an appeal from a determination that the Secretary of the Air Force issued to it on June 14, 1996. In that determination, the Air Force denied in part a request for information that the National Security Archive filed on November 1, 1993, pursuant to the Freedom of Information Act (FOIA), 5 U.S.C. § 552. The Air Force’s determination was a partial response to the organization’s FOIA request, in which it identified and released, with material deleted, one of the requested documents. The withheld information was deleted from the version of the document released to the National Security Archive 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 the information that it directed the Air Force to withhold in its June 14, 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 November 1, 1993, the National Security Archive submitted a request to the Air Force under the FOIA for, among other information, the text of a January 27, 1954 lecture on atomic and thermonuclear weapons that Major General James McCormack, Jr., delivered at the National War College. The Air Force located that document and noted that it was marked “Restricted Data,” which requires review by the DOE before it can be declassified and released to the public. As a result of its review, the Office of Declassification provided the Air Force with a redacted version of the document, which deleted twelve portions of the lecture on seven pages. On June 14, 1996, the Air Force released that version to the National Security Archive. In its determination letter accompanying the released document, the Air Force informed the National Security Archive that “much of the content [of the lecture] falls under the provisions of the Atomic Energy Act of 1954 (42 U.S.C. § 2011 et seq.) and thus it has been reviewed by the [DOE], which determined the exemptions” under the FOIA pursuant to which the information was withheld.

The present appeal seeks the disclosure of the portions of the document that were withheld from the National Security Archive. In its appeal, the National Security Archive states that the lecture is “on such a general theoretical level that further declassification would not involve any risk [to the national security].”

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).

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 that the National Security Archive specifically raised in its 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 one page of the lecture, page 7, which consists of a chart entitled “Yield vs. Size.” The Director of SA has determined that the data plotted on the chart are related to nuclear weapon design. 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 that the remainder of the previously withheld information may now be released.

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. A newly redacted version of the responsive document will be provided to the National Security Archive under separate cover. Accordingly, the National Security Archive’s appeal will be granted in part and denied in part.

It Is Therefore Ordered That:

(1) The Appeal that the National Security Archive filed on July 24, 1996, Case No. VFA-0196, 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 a January 27, 1954 lecture that Major General James McCormack, Jr., delivered at the National War College, in which additional information is now released, will be provided to the National Security Archive 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: April 16, 1998