Case No. VFA-0475, 27 DOE ¶ 80,200

April 16, 1999

DECISION AND ORDER

OF THE DEPARTMENT OF ENERGY

Appeal

Name of Petitioner: Michael J. Ravnitzky

Date of Filing: February 5, 1999

Case Number: VFA-0475

Michael J. Ravnitzky filed an Appeal from a determination that the Department of Energy’s FOIA/Privacy Act Division (FOI/PA) issued to him on January 19, 1999. In that determination, FOI/PA denied in part a request for information that Mr. Ravnitzky filed with the Federal Bureau of Investigation on April 20, 1994, pursuant to the Freedom of Information Act (FOIA), 5 U.S.C. § 552. This Appeal, if granted, would require the Department of Energy (DOE) to release the information that was withheld in the January 19 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

In his request, Mr. Ravnitzky sought FBI records concerning Bob Considine, a syndicated reporter whose work appeared in the Philadelphia Inquirer, among other newspapers. The FBI identified, among the documents responsive to this request, two letters that originated at the Atomic Energy Commission, a predecessor agency to the DOE. Because these letters were marked as containing classified information, the FBI referred them to the DOE for review, in July 1998. The DOE's Office of Declassification (OD) determined that one of the two letters was unclassified and could be released. OD determined, however, that the other letter, dated April 11, 1962, contained some classified information, which was identified and redacted from the copy released to Mr. Ravnitzky on January 19, 1999, together with a full copy of the first letter. FOI/PA

stated in its January 19 letter that the deleted information was withheld under Exemption 1 of the FOIA, because it concerned military plans, weapons systems, or operations that are classified as National Security Information under Section 1.5(a) of Executive Order 12958.

In his Appeal, Mr. Ravnitzky contends that the withheld information is not properly classified, that some portions of the withheld information may be segregated from any properly classified portion and released, and that this information is more than 35 years old.

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).

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 all materials for which the DOE had claimed an exemption from mandatory disclosure under the FOIA. The Director of SA has now concluded that the document no longer contains any information that needs to remain classified by the DOE. Accordingly, Mr. Ravnitzky's Appeal will be granted and the withheld information will be provided to the appellant under separate cover.

It Is Therefore Ordered That:

(1) The Appeal filed by Michael J. Ravnitzky on February 5, 1999, Case No. VFA-0475, 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: April 16, 1999