Case No. VFA-0327, 27 DOE ¶80,145

June 11, 1998

DECISION AND ORDER

OF THE DEPARTMENT OF ENERGY

Appeal

Name of Petitioner:The National Security Archive

Dates of Filing: August 25, 1997

December 23, 1997

Case Numbers: VFA-0327

VFA-0365

The National Security Archive filed appeals from determinations issued to it on July 1 and October 14, 1997, by the Deputy Director for Communications and Information of the Headquarters Air Combat Command, Department of the Air Force (Air Force). In those determinations, the Air Force denied in part a request for information that the National Security Archive filed pursuant to the Freedom of Information Act (FOIA), 5 U.S.C. § 552. The Air Force specified that certain information deleted from the documents released to the National Security Archive in each determination was withheld after a review of the documents 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 information that it withheld through the Air Force’s July 1 and October 14, 1997 determinations.

The FOIA requires that federal agencies generally release to the public, upon request, documents in their possession and control. 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 June 22, 1994, the National Security Archive submitted a request to the Air Force for a number of documents, all of which pertained to annual or short-term histories of specified elements of the United States Air Force. Because three of these documents contained DOE information, the Air Force referred the three documents to the DOE’s Office of Declassification (OD) for a determination concerning their possible release. OD responded by returning the documents to the Air Force after marking the information to be withheld and providing an explanation of each withholding. The Air Force released to the National Security Archive portions of the deleted versions of the requested materials in interim determinations it issued on July 1 and October 14, 1997.

Although the DOE withheld a number of passages from the materials the Air Force released in its July 1, 1997 determination letter, the National Security Archive has appealed only the DOE’s withholding of the information deleted on page 120 of Volume I of Historical Study Number 117, History of Strategic Air Command, FY 1970 (Case No. VFA-0327). Similarly, although the DOE withheld a number of passages from the materials the Air Force released in its October 14, 1997 determination letter, the National Security Archive has appealed only the DOE’s withholding of the information deleted on page 112 of Volume I of Historical Study Number 116, History of Strategic Air Command, FY 1969 (Case No. VFA-0365). In its determination letters, the Air Force explained that the information withheld from these two pages could not be released under the Atomic Energy Act of 1954 and therefore was withheld under Exemption 3 of the FOIA. The information withheld from these pages reveals, for fiscal years 1969 and 1970, the number of nuclear weapons, by weapon type and weapon yield, that were required for support of Strategic Air Command alert forces.

The present appeals seek the disclosure of these withheld portions from the reports that the Air Force provided to the National Security Archive. In its appeals, the National Security Archive states that the Government has declassified related information concerning earlier years, and contends that comparable data for the years at issue could now be declassified and released to the public “without damaging U.S. interests in nuclear non-proliferation or otherwise violating statutory requirements.”

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., Glen Milner, 27 DOE ¶ 80,115 (1998); Barton J. Bernstein, 22 DOE ¶ 80,165 (1992). According to the Office of Declassification, the portions of the two pages that the DOE deleted under Exemption 3 were withheld on the grounds that they contain information that has been classified as Formerly Restricted Data under the Atomic Energy Act and is therefore exempt from mandatory disclosure.

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 two pages at issue for which the DOE had claimed an exemption from mandatory disclosure under the FOIA.

The Director of SA considered the concerns the National Security Archive specifically 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 the information withheld in the initial determinations. In accordance with current joint Department of Defense/DOE classification guidance, the withheld information, which reveals nuclear weapon quantity by weapon type and yield, is classified as Formerly Restricted Data. Section 142 of the Atomic Energy Act, 42 U.S.C. § 2162, prohibits the disclosure of such information. Consequently, this information was and is properly withheld pursuant to Exemption 3 of the FOIA.

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 two pages at issue that the Director of SA has determined to be properly classified must continue to be withheld from disclosure. Accordingly, the National Security Archive’s appeals will be denied.

It Is Therefore Ordered That:

(1) The appeals that the National Security Archive filed on August 25 and December 23, 1997, Case Nos. VFA-0327 and VFA-0365, are hereby denied.

(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: June 11, 1998