Case No. VFA-0457, 27 DOE ¶ 80,182

January 19, 1999

DECISION AND ORDER

OF THE DEPARTMENT OF ENERGY

Appeal

Name of Petitioner:Hans M. Kristensen

Date of Filing:November 10, 1998

Case Number: VFA-0457

Hans M. Kristensen filed an Appeal from a determination issued to him on October 30, 1998, by the Deputy Director of the Office of Communications and Information of the Department of the Air Force (Deputy Director). In that determination, the Deputy Director denied in part a request for information that Mr. Kristensen filed with the Air Force on December 1, 1995, pursuant to the Freedom of Information Act (FOIA), 5 U.S.C. § 552. Some of the information deleted from two documents the Air Force released to Mr. Kristensen in that determination was withheld pursuant to a review of the documents by the Office of Declassification of the Department of Energy's Office of Security Affairs. This Appeal, if granted, would require the DOE to instruct the Deputy Director that the DOE no longer requires the classification and withholding of the information that the Air Force withheld on the DOE's behalf.

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 December 1, 1995, Mr. Kristensen submitted a request under the FOIA to the Department of the Air Force for a number of documents, including two entitled "History of Strategic Air Command, Volume I, 1 July 1954-30 June 1956" and "History of Strategic Air Command, Volume I, 1 July 1956-31 December 1956." On May 28, 1996, the Air Force sent the documents to the DOE for classification review. In response to that request, the DOE advised the Air Force on June 17, 1998, that the documents contained classified information that it considered exempt from mandatory disclosure under Exemption 3 of the FOIA, 5 U.S.C. § 552(b)(3). On October 30, 1998, the Air Force released to Mr.

Kristensen excerpts of the two documents described above, from which it withheld the information that the DOE claimed was exempt from disclosure under the FOIA as well as other information that the Air Force claimed was exempt from disclosure.

In his Appeal to the DOE, Mr. Kristensen seeks the disclosure of those portions of the excerpts that the Air Force withheld at the request of the DOE. Mr. Kristensen contends that the information the DOE has identified as classified should be declassified and released, because "the records are nearly 50 years old" and because the public would benefit significantly from their disclosure.

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., Barton J. Bernstein, 22 DOE 80,165 (1992); William R. Bolling, II, 20 DOE ¶ 80,134 (1990). The portions that the DOE deleted under Exemption 3 were withheld on the grounds that they contain information about nuclear weapons storage that was classified as Formerly Restricted Data under the Atomic Energy Act and is therefore exempt from mandatory disclosure.

Upon referral of the Appeal from the Office of Hearings and Appeals, the Office of Declassification again reviewed those portions of the excerpts for which the DOE had claimed exemptions from mandatory disclosure under the FOIA. That Office has now concluded that the document no longer contains any information that needs to remain classified by the DOE. The information, though no longer classified by the DOE, may still be classified by the Air Force. The DOE has advised the Air Force of its determination and the Air Force will now inform Mr. Kristensen of its own determination concerning that information. Accordingly, Mr. Kristensen's Appeal will be granted.

It Is Therefore Ordered That:

(1) The Appeal filed by Hans M. Kristensen on November 10, 1998, Case No. VFA-0457, 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: January 19, 1999