Case No. VFA-0462, 27 DOE ¶ 80,211

June 14, 1999

DECISION AND ORDER

OF THE DEPARTMENT OF ENERGY

Appeal

Name of Petitioner:The National Security Archive

Date of Filing:December 7, 1998

Case Number: VFA-0462

The National Security Archive (Appellant) filed an Appeal from a determination that the Department of Energy’s Albuquerque Operations Office (Albuquerque) issued to it on October 28, 1998. In that determination, Albuquerque denied in part a request for information that the Appellant filed on July 6, 1995, pursuant to the Freedom of Information Act (FOIA), 5 U.S.C. § 552. The information deleted from the document released to the Appellant in that determination was withheld after a review of the document had been performed by the Office of Declassification of the Department of Energy's Office of Security Affairs. This Appeal, if granted, would require Albuquerque to release the information that it withheld in its October 28, 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 July 6, 1995, the Appellant submitted a request under the FOIA to the DOE's Nevada Operations Office for a copy of a report by Hans Bethe, entitled "Analysis of Joe-4," T-527, dated September 11, 1953. "Joe-4" was the name given to the fourth nuclear test conducted by the Soviet Union. After determining that Albuquerque had custody of the requested document, the Nevada Operations Office forwarded the request to Albuquerque. Albuquerque then reviewed the document, determined that it contained information marked as classified, and forwarded it to the DOE’s Office of Declassification for review. On October 28, 1998, after the Office of Declassification completed its review, Albuquerque released to the Appellant a copy of the requested document from which it

withheld information it claimed to be classified as Restricted Data 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 document. In its Appeal, the National Security Archive contends that additional portions of the report, specifically, the estimated yield of the test and the role of "AFOAT-1" in collecting data on this test, may be released without jeopardizing the national security. AFOAT was the Air Force Office--Atomic Testing.

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, 26 DOE ¶ 80,203 (1997); William R. Bolling, II, 20 DOE ¶ 80,134 (1990). According to the Office of Declassification, the portions that the DOE deleted from the requested document under Exemption 3 were withheld on the grounds that 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 an exemption from mandatory disclosure under the FOIA.

In performing his review the Director of SA considered the concerns the Appellant specifically raised in his appeal, and performed as well a general review of the material under the current classification guidance. In his re-evaluation of the report, the Director of SA determined that some of the information that was initially withheld from the Appellant may now be released. The information now being released includes material related to the topics the Appellant addressed in its appeal as well as information contained in the summary of the report and some of its conclusions.

Based on the review performed by the Director of SA under current classification guidance and his conclusions, however, we have determined that the Atomic Energy Act requires the continued withholding of most of those portions of the report that were previously identified as classified information. These portions relate primarily to the design and functioning of United States weapons and the similarity between our weapons and those of Soviet design. This classified information is inextricably intertwined with some unclassified information, which requires the withholding of entire pages of the document, in some instances.

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 report that the Director of SA has determined to be properly classified must continue to be withheld from disclosure. A newly redacted version of the report, containing the additional material that may now be released, will be provided to the Appellant 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 December 7, 1998, Case No. VFA-0462, 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 report by Hans Bethe entitled "Analysis of Joe-4," T-527, dated September 11, 1953, 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: June 14, 1999