Case No. VFA-0486, 27 DOE ¶ 80,207

May 20, 1999

DECISION AND ORDER

OF THE DEPARTMENT OF ENERGY

Appeal

Name of Petitioner:Hans M. Kristensen

Date of Filing:March 23, 1999

Case Number: VFA-0486

Hans M. Kristensen filed an Appeal from a determination issued to him on January 25, 1999, by the Chief, Information Control Branch, of the Communications and Information Directorate of the Department of the Air Force (Branch Chief). In that determination, the Branch Chief denied in part a request for information that Mr. Kristensen filed with the Air Force on November 30, 1995, 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 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 Branch Chief 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 November 30, 1995, Mr. Kristensen submitted a request under the FOIA to the Department of the Air Force for a number of documents, including one entitled "History of Strategic Air Command, Historical Study No. 73, 1 January 1958- 30 June 1958." 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 document contained classified information that it considered exempt from mandatory disclosure under Exemption 3 of the FOIA, 5 U.S.C. § 552(b)(3). The Air Force did not release the results of its own classification review at that time. On January 25, 1999, the Air Force released to Mr. Kristensen excerpts from this document, from which it withheld information that the DOE claimed was exempt from disclosure under the FOIA.

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 over 40 years old and because continued withholding of this information is contrary to the FOIA's spirit of "maximum responsible 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., 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 portions that the DOE deleted under Exemption 3 were withheld on the grounds that they contain nuclear weapons data and information about military allocation, planning, and deployment 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 Security Affairs 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 March 23, 1999, Case No. VFA-0486, 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: May 20, 1999