Case No. VFA-0380, 27 DOE ¶ 80,188

February 17, 1999

DECISION AND ORDER

OF THE DEPARTMENT OF ENERGY

Appeal

Name of Petitioner:National Security Archive

Date of Filing:February 11, 1998

Case Number: VFA-0380

The National Security Archive filed an Appeal from a determination that the Department of Energy's Freedom of Information and Privacy Act Division (the FOIA Office) issued to it on January 22, 1998. In that determination, the FOIA Office denied in part a request for information that the National Security Archive filed on March 4, 1994, 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 reviewed the documents to determine whether they contained classified information. This Appeal, if granted, would require the FOIA Office to release the information that it withheld in its January 22, 1998 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 March 4, 1994, William Burr of the National Security Archive submitted a request under the FOIA to the Department of Energy (DOE) for copies of any reports prepared between September 1, 1961, and December 31, 1962, that analyzed the significance of the nuclear test series the Soviet Union conducted during the late summer and fall of 1961. The DOE identified 15 responsive documents. It determined that two of them could be released in their entirety and the remaining 13 documents could be released after extensive deletions were made. The deleted information was withheld because the DOE determined it to be classified as National Security Information pursuant to Executive Order 12958 and as

Restricted Data pursuant to the Atomic Energy Act of 1954, and therefore exempt from mandatory disclosure under Exemptions 1 and 3, respectively, 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 release of at least some of those portions could no longer reasonably be expected to cause damage to the national security, particularly since Russia has itself released information about its 1961 tests.

II. Analysis

Exemption 1 of the FOIA 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 under 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). According to the Office of Declassification, the information withheld pursuant to Exemption 1 in this case relates to intelligence sources, methods, and activities, which is protected by Section 1.5(c) of the Executive Order and is therefore exempt from mandatory disclosure under the FOIA.

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). According to the Office of Declassification, the portions that the DOE deleted from the requested documents under Exemption 3 were withheld because they contain information about nuclear weapons design that has been classified as Restricted Data under the Atomic Energy Act and is therefore exempt from mandatory disclosure.

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 withheld material falls into three categories: yields of the Soviet nuclear tests, weapon design information, and intelligence matters. The following determinations were reached in consideration of the National Security Archive's contentions that the passage of time and the release of similar information by Russia have reduced the harm to the national security of the release of the information requested in this case. The DOE has re-evaluated the justification for classifying the withheld information under current classification guidance and determined that information related to the total yields of the Soviet tests, as well as some of the nuclear weapon design information, may now be released. Nevertheless, the DOE has determined that the information in those categories that continues to be withheld remains classified as Restricted Data. Moreover, the DOE has determined that one short phrase related to intelligence activities continues to be classified under the Executive Order. In addition, the vast remainder of the information concerning intelligence sources and methods has been reviewed by the Air Force Air Intelligence Agency, which has determined on appeal that the information remains sensitive and must continue to be withheld under the Executive Order. The denying official for the information that the Air Force continues to find necessary to withhold is James M. Enger, USAF, Director of Information Operations, Headquarters, Air Intelligence Agency.

Based on the review performed by the Director of SA, we have determined that Executive Order 12958 and the Atomic Energy Act require the continued withholding of some of those portions of the 13 documents that were 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 Exemptions 1 and 3, the disclosure is prohibited by statute or Executive Order. 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, newly redacted versions of the 13 documents 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 February 11, 1998, Case No. VFA- 0380, is hereby granted to the extent set forth in paragraph (2) below and denied in all other respects.

(2) Newly redacted versions of 13 documents responsive to its March 4, 1994 Freedom of Information Act request, 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: February 17, 1999