Case No. VFA-0464, 27 DOE ¶ 80,227

September 1, 1999

DECISION AND ORDER

OF THE DEPARTMENT OF ENERGY

Appeal

Name of Petitioner:The National Security Archive

Date of Filing:December 9, 1998

Case Number: VFA-0464

The National Security Archive filed an Appeal from a determination issued to it on October 13, 1998, by the Manpower, Personnel and Administration Directorate, United States European Command, of the Department of Defense (USEUCOM). In that determination, USEUCOM denied in part a request for information that the National Security Archive filed on August 19, 1994, pursuant to the Freedom of Information Act (FOIA), 5 U.S.C. § 552. The information deleted from one of the documents USEUCOM released 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 USEUCOM that the DOE no longer requires the classification and withholding of the information that USEUCOM 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 August 19, 1994, the National Security Archive submitted a request under the FOIA to USEUCOM for histories relating to "NATO nuclear forces, deployments of [intermediate range ballistic missiles], command and control over nuclear forces, and nuclear weapon safety" in the years 1957 through 1962. On August 16, 1996, USEUCOM sent excerpts of the 1961 and 1962 histories to the DOE for classification review. In response to that request, the DOE advised USEUCOM on June 17, 1998, that the 1961 history contained classified information that it considered exempt from mandatory disclosure under Exemption 3 of the FOIA, 5 U.S.C. § 552(b)(3). The DOE reported that the 1962 history, however, contained no DOE classified information. On October 13, 1998, USEUCOM released to the National Security Archive a copy of the 1962 history in its entirety and

a copy of the 1961 history from which it withheld information that the DOE claimed was exempt from disclosure under the FOIA.

In its Appeal to the DOE, the National Security Archive seeks the disclosure of those portions of the 1961 history that USEUCOM withheld at the request of the DOE. The Appellant contends that the information the DOE has identified as classified should be declassified and released, because the report was prepared 35 years ago, the United States withdrew almost all of its nuclear weapons from Europe nearly ten years ago, and the DOE released data on the United States nuclear stockpile through 1961 several years ago.

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., Hans M. Kristensen, 27 DOE ¶ 80,182 (1999); Barton J. Bernstein, 22 DOE 80,165 (1992); William R. Bolling, II, 20 DOE ¶ 80,134 (1990). The information that the DOE deleted under Exemption 3 concerns Fiscal Year (FY) 1964 Atomic Weapon Planning for United States Europe warhead requirements and a FY 1962 plan for the dispersal of nuclear weapons, which the DOE classified as Formerly Restricted Data under the Atomic Energy Act.

Upon referral of the Appeal from the Office of Hearings and Appeals, the Office of Security Affairs again reviewed the withheld portions of the 1961 history for which the DOE had claimed exemption from mandatory disclosure under the FOIA. It has informed us that current classification guidance indicates that the classification of planning information for nuclear weapons that are based outside the United Stated and its territories is to be determined by the parties concerned. Based on that guidance, it has now concluded that the document no longer contains any information that needs to remain classified by the DOE. Because the 1961 history is not a DOE document, that Office will return the document to USEUCOM for its consideration for release in light of the DOE's new stance on this matter. USEUCOM will then inform the National Security Archive directly of its own determination concerning the release of that information. Accordingly, the National Security Archive's Appeal will be granted.

It Is Therefore Ordered That:

(1) The Appeal filed by The National Security Archive on December 9, 1998, Case No. VFA-0464, is hereby granted.

(2) The Department of Energy's (DOE) Office of Declassification shall inform the Department of Defense, United States European Command (USEUCOM), that the 1961 USEUCOM History contains no DOE classified information.

(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: September 1, 1999