Case No. VFA-0319, 27 DOE ¶ 80,220

August 4, 1999

DECISION AND ORDER

OF THE DEPARTMENT OF ENERGY

Appeal

Name of Petitioner:National Security Archive

Date of Filing:July 24, 1997

Case Number: VFA-0319

The National Security Archive filed an Appeal from a determination that the Department of Defense's Director of Freedom of Information and Security Review (the Director) issued to it on June 6, 1997. In that determination, the Director denied in part a request for information that the National Security Archive filed on August 29, 1996, pursuant to the Freedom of Information Act (FOIA), 5 U.S.C. § 552. The information deleted from the documents released to the National Security Archive in that determination was withheld after the Department of Energy's Office of Declassification, as well as the Department of Defense (DOD), reviewed the documents to determine whether they contained classified information. This Appeal, if granted, would require the Department of Energy (DOE) to release the information that it withheld in its June 6, 1997 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 29, 1996, William Burr of the National Security Archive submitted a request under the FOIA to the DOD. The Director responded to the request by providing a copy of "MIRV: A Brief History of Minuteman and Multiple Reentry Vehicles," dated February 1976, with information deleted pursuant to a DOE determination that the withheld information warranted protection from disclosure under Exemption 3 of the FOIA. The DOD had found that Exemptions 1 and 3 dictated the withholding of certain portions of the document, but those portions were contained within the portions withheld by the DOE. As a result, the Director stated that the deleted information was

withheld because the DOE determined it to be classified pursuant to the Atomic Energy Act of 1954, and therefore exempt from mandatory disclosure under Exemption 3 of the FOIA.

The present Appeal seeks the disclosure of the withheld portions of the requested documents. In its Appeal, the National Security Archive contends that to the extent the information withheld pertains to the "technical characteristics . . . and numbers of ICBMs, target types, anti-ballistic missiles, intelligence information on Soviet ABMs, and military strategies," it was improperly withheld, because the Atomic Energy Act and Exemption 3 do not protect that type of information.

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., National Security Archive, 26 DOE ¶ 80,118 (1996); Barton J. Bernstein, 22 DOE ¶ 80,165 (1992); William R. Bolling, II, 20 DOE ¶ 80,134 (1990).

The Director 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 exemptions from mandatory disclosure under the FOIA.

In performing his review the Director of SA determined that the original determination letter was worded imprecisely, and created the impression that all of the information originally redacted from the requested document was Restricted Data or Formerly Restricted Data and was withheld, by the DOE, under Exemption 3 of the FOIA. To correct this impression, the Director has now clearly distinguished such information, marked on the document now being released as "DOE b(3)," from other information which is being withheld by the DOD under Exemption 1 (marked as "DOD b(1)") or Exemption 3 (marked as "DOD b(3)"). The Director has affirmed that all of the information being withheld by the DOE is related to nuclear weapons design. He concludes that this information is Restricted Data as defined under the Atomic Energy Act of 1954, and it is therefore exempt from mandatory disclosure under Exemption 3. Although the Director has not declassified any information in his review of this matter, more precise redaction reduces the extent of the previously deleted portions, and permits releasing the maximum amount of information consistent with national security considerations.

The Director has also informed us that the material identified and redacted as "DOD b(1)" information is related to military plans, weapons systems, or operations. As such, it is defined as National Security Information under Executive Order 12958, and the DOD therefore determined that it is exempt from mandatory disclosure under Exemption 1 of the FOIA, which exempts from mandatory disclosure matters that are classified under criteria established by an Executive Order. 5 U.S.C. § 552(b)(1); 10 C.F.R. § 1004.10(b)(1). The material identified and redacted as "DOD b(3)" information is related to the military utilization of nuclear weapons. The DOD has determined this information to be Formerly Restricted Data under the Atomic Energy Act of 1954, and therefore exempt from mandatory disclosure under Exemption 3. The denying official for the information redacted by the DOD is Fred S. Celec, Deputy Assistant to the Secretary of Defense (Nuclear Matters), Office of the Secretary of Defense.

Based on the review performed by the Director of SA, we have determined that the Atomic Energy Act requires the continued withholding of much of those portions of the document that the DOE previously identified as containing classified information. Although 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, those portions of the documents that the Director of SA has now determined to be properly classified must be withheld from disclosure. However, because some previously deleted information may now be released as a result of the Director of SA's review, a newly redacted version of the requested 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 filed by the National Security Archive on June 24, 1997, Case No. VFA-0319, 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 document entitled "A Brief History of Minuteman and Multiple Reentry Vehicles," dated February 1976, in which additional information is released, 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: August 4, 1999