Case No. VFA-0483, 27 DOE ¶ 80,233

September 28, 1999

DECISION AND ORDER

OF THE DEPARTMENT OF ENERGY

Appeal

Name of Petitioner:The National Security Archive

Date of Filing:March 11, 1999

Case Number: VFA-0483

The National Security Archive filed an Appeal from a determination issued to it on February 24, 1999, by the Deputy Director, Communications and Information, Headquarters Air Combat Command of the Department of the Air Force (Deputy Director). In that determination, the Deputy Director denied in part a request for information that the National Security Archive filed with the Air Force on February 25, 1994, pursuant to the Freedom of Information Act (FOIA), 5 U.S.C. § 552. Some of the information deleted from the document the Air Force 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 the Deputy Director that the DOE no longer requires the classification and withholding of 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 February 25, 1994, the National Security Archive submitted a request under the FOIA to the Department of the Air Force for a copy of Strategic Air Command Study 109, "Operation Recovery, 17 January-7 April 1966." The Air Force sent portions of the document to the DOE for classification review. The DOE completed that review and responded to the Air Force in March of 1996. In October of 1998 the Air Force asked the DOE to perform a second classification review, because it believed that changes in the DOE's classification policies in the intervening period might lead to a different result. The DOE completed its second review and advised the Air Force on November 20, 1998, that the document contained classified information that it considered exempt from mandatory disclosure under Exemption 3 of the FOIA, 5 U.S.C. § 552(b)(3). On February 24, 1999, the Air

Force released to the National Security Archive a copy of the requested report from which it withheld information that the DOE claimed was exempt from disclosure under the FOIA, as well as additional information that the Air Force withheld on its own behalf under another exemption of the FOIA.

In its Appeal to the DOE, the National Security Archive seeks the disclosure of the information on pages 285-290 of the report, which the Air Force withheld at the request of the DOE. The National Security Archive contends that the information the DOE has identified as classified on those pages should be declassified and released, because they concern an overseas nuclear weapons accident that occurred decades ago, and any general information on that topic would not assist nuclear proliferants.

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, meets the above criteria, and therefore information withheld under that Act must also be withheld under the FOIA. 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).

Upon referral of the Appeal from the Office of Hearings and Appeals, the Office of Security Affairs again reviewed those portions of pages 285-290 for which the DOE had claimed exemptions from mandatory disclosure under the FOIA. That Office has now concluded that those pages no longer contain 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 will advise the Air Force of its determination and the Air Force will then inform the National Security Archive of its own determination concerning 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 March 11, 1999, Case No. VFA-0483, is hereby granted.

(2) The Department of Energy's Office of Security Affairs shall inform the Deputy Director, Communications and Information, Headquarters Air Combat Command of the Department of the Air Force, that pages 285-290 of Strategic Air Command Study 109, "Operation Recovery, 17 January-7 April 1966" contain 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 28, 1999