Case No. VFA-0217, 27 DOE ¶ 80,107

February 2, 1998

DECISION AND ORDER

OF THE DEPARTMENT OF ENERGY

Appeal

Name of Petitioner:Hanford Education Action League

Date of Filing: September 24, 1996

Case Number: VFA-0217

The Hanford Education Action League (HEAL) filed an Appeal from a determination that the Department of Energy’s Richland Operations Office (Richland) issued to it on August 6, 1996. In that determination, Richland denied in part a request for information that HEAL filed on February 28, 1992, pursuant to the Freedom of Information Act (FOIA), 5 U.S.C. § 552. This Appeal, if granted, would require the DOE to release the information that was withheld in the August 6, 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

In its request, HEAL sought a copy of Document Number HW-69237, entitled “Operation of the Reactor Complex at Production Levels Less Than Full Predicted 1965 Capacity.” In its August 6, 1996 response, Richland provided HEAL with a copy of the document from which it had deleted information that had been classified Secret Restricted Data and which it withheld from HEAL under Exemption 3 of the FOIA. Richland stated that the withheld information

concerned nuclear materials production, the disclosure of which could jeopardize the common defense and the security of the nation.

In its Appeal, HEAL contends that the withheld information, which concerns two plutonium valuation scenarios, is more than 35 years old and is in the public interest, and therefore “cannot be justifiably considered as jeopardizing the common defense or the security of the nation.” HEAL argues that the information should be released or, if the DOE maintains that it must remain classified, better justification for its withholding must be provided.

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). The controlling statutory provision in this case is the Atomic Energy Act of 1954, 42 U.S.C. § 2011 et seq., which prohibits the disclosure of information concerning atomic energy defense programs that is classified as Restricted Data under the Act. We have previously determined that the Atomic Energy Act is a statute to which Exemption 3 is applicable. See, e.g., National Security Archive, 25 DOE ¶ 80,103 at 80,504 (1995). The information that the DOE deleted from the requested document under Exemption 3 was withheld on the grounds that it concerned nuclear materials production and had been classified as Restricted Data under the Atomic Energy Act. If correctly classified, the information would therefore be exempt from mandatory disclosure.

Upon referral of the appeal from the Office of Hearings and Appeals, the DOE Office of Declassification reviewed the withheld information. That Office has now concluded that the document no longer contains any information that needs to remain classified by the DOE. The withheld information was based on a hypothetical scenario for operating the reactors at Richland. Specifically, the figures withheld were the estimated values for the plutonium produced by the reactors if two of the reactors were temporarily shut down. The withheld figures were derived by multiplying the estimated amount of plutonium that would be produced under this scenario by the per-gram value of the plutonium, estimated for purposes of this calculation at $30 and $50 per gram. Therefore, the two values for plutonium differed by a factor of nearly two. Moreover, information already released permitted the calculation of these values by simple arithmetic. Because the disclosure of the two withheld values would not impact upon national security, there is no basis for classifying that information. Accordingly, HEAL’s appeal will be granted and the withheld information will be provided to the appellant under separate cover.

It Is Therefore Ordered That:

(1) The Appeal filed by the Hanford Education Action League on September 24, 1996, Case No. VFA-0217, is hereby granted.

(2) 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: February 2, 1998