Case No. VFA-0451, 27 DOE ¶ 80,262

March 3, 2000

DECISION AND ORDER

OF THE DEPARTMENT OF ENERGY

Appeal

Name of Petitioners:Tammi D. Mourfield Selvidge, et al.

Date of Filing: October 16, 1998

Case Number: VFA-0451

Tammi D. Mourfield Selvidge, Charles Selvidge and Sam Selvidge (appellants) filed an Appeal from a determination that the Department of Energy's Oak Ridge Operations Office (ORO) issued on September 1, 1998. The determination responded to a request for information that the appellants filed under the Freedom of Information Act (FOIA), 5 U.S.C. § 552, as implemented by the Department of Energy (DOE) in 10 C.F.R. Part 1004. The appellants challenge ORO’s failure to declassify documents. This Appeal, if granted, would require the DOE to release the information that it withheld as classified in its September 1, 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 September 22, 1997, the appellants requested from the DOE all documents concerning five specified categories of information and requested that the responsive documents be declassified, if necessary, before their release. The requested information concerned Oak Ridge National Laboratory’s Molten Salt Reactor, the identity of “classified” substances, and the Records Holding Task Group (RHTG). This Appeal only deals with the review of the withholding under FOIA Exemptions 1 and 3 of information from the RHTG database printout. Tammi D. Mourfield Selvidge, 27 DOE ¶ 80,170, at 80,675 n.2 (1998). ORO had determined some of the redacted information was required to be withheld from disclosure as classified pursuant to the Atomic Energy Act of 1954, and therefore exempt from

mandatory disclosure under Exemption 3 of the FOIA. It also determined that some of the withheld information was classified, the release of which could cause damage to the national security, and therefore should be withheld under Exemption 1.

The present Appeal seeks the disclosure of the withheld portions of the requested documents. In their Appeal, the appellants contend that the withheld information should be released because there is a medical reason to know the information and it is in the public interest to release it.

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., Tammi D. Mourfield Selvidge, 26 DOE ¶ 80,118 (1996); Barton J. Bernstein, 22 DOE ¶ 80,165 (1992); William R. Bolling, II, 20 DOE ¶ 80,134 (1990). Among the types of information of which dissemination is prohibited under the Atomic Energy Act are Restricted Data and Unclassified Controlled Nuclear Information (UCNI). 42 U.S.C. §§ 2162, 2168.

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 again the RHTG database based upon current classification guidance. This review identified Restricted Data and UCNI that must remain protected. The Director has affirmed that all of the information being withheld as Restricted Data is related to special nuclear material production and nuclear weapons design. The Unclassified Controlled Nuclear Information being withheld from the documents concerns sensitive facilities at Oak Ridge used for the production of Special Nuclear Material. The Director also found that none of the information that continues to be properly withheld is subject to Exemption 1 of the FOIA, and determined that some information previously withheld may now be released.

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 appellants under separate cover. Accordingly, the appellants’ Appeal will be granted in part and denied in part.

It Is Therefore Ordered That:

(1) The Appeal filed by the Tammi D. Mourfield Selvidge, Charles Selvidge, and Sam Selvidge, on October 16, 1998, Case No. VFA-0451, 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 Records Holding Task Group database, in which additional information is released, will be provided to Tammi D. Mourfield Selvidge, Charles Selvidge, and Sam Selvidge.

(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: March 3, 2000