Case No. VFA-0506, 27 DOE ¶ 80,259

February 24, 2000

DECISION AND ORDER

OF THE DEPARTMENT OF ENERGY

Appeal

Name of Petitioner:The National Security Archive

Date of Filing: June 25, 1999

Case Number: VFA-0506

The National Security Archive (Appellant) filed an Appeal from a determination that the National Archives and Records Administration (NARA) issued to it on May 7, 1999. In that determination, NARA denied in part a request for information that the Appellant filed on November 29, 1993, pursuant to the Freedom of Information Act (FOIA), 5 U.S.C. § 552. The information deleted from the documents that NARA released to the Appellant in that determination was withheld after reviews of the documents had been performed by the Office of Declassification (now the Office of Nuclear and National Security Information (ONNSI)) of the Department of Energy's (DOE) Office of Security Affairs, as well as by the Department of State and the Office of the Secretary of Defense. This Appeal, if granted, would require DOE to release the information that it instructed NARA to withhold in its May 7, 1999 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 DOE determines that disclosure is in the public interest. 10 C.F.R. § 1004.1.

I. Background

On November 29, 1993, the Appellant submitted a request under the FOIA to NARA for a group of documents including a report by Carl Kaysen on “Strategic Air Planning and Berlin,” which was attached to a memorandum from General Maxwell Taylor to General Lyman Lemnitzer, dated September 6, 1961. The Appellant has restricted the scope of its Appeal to the material withheld

from this one document and its attachments (annexes). ONNSI reviewed this document along with other documents responsive to the request, determined that it contained information properly classified, and returned it to NARA, identifying the Departments of State and Defense as other agencies that should review the document prior to public release. On May 7, 1999, after all three agencies had completed their reviews, NARA released to the Appellant a copy of the document and its annexes, from which it withheld information it claimed to be exempt from release under the FOIA as classified information. The material that NARA withheld at the direction of DOE was information that DOE identified as Formerly Restricted Data pursuant to the Atomic Energy Act of 1954, and therefore exempt from mandatory disclosure under Exemption 3 of the FOIA.(1)

The present Appeal seeks the disclosure of the portions of the documents that DOE withheld. Specifically, the National Security Archive contends that additional portions of annexes A and B to the report, initially withheld by DOE, may be released without jeopardizing the national security.

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 ONNSI, the portions that the DOE deleted from the requested document under Exemption 3 were withheld on the grounds that they contained information about nuclear weapons yields, numbers and locations that had been classified as Formerly Restricted Data under the Atomic Energy Act and were 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 memorandum and its annexes 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 joint DOE/Department of Defense (DOD) classification guidance. In his re-evaluation of the report, the Director of SA determined that only the information withheld concerning the yields of specific nuclear weapons remains protected by DOE and will continue to be withheld as Formerly Restricted Data. DOE will not, however, continue to withhold the remaining information that DOE initially withheld from the Appellant. Although DOE no longer withholds this information, the Director of SA notes it may nevertheless continue to be classified as Formerly Restricted Data by the DOD based on agreements with other nations. DOE has no access to these agreements and therefore cannot determine the sensitivity of this information. Accordingly, the report and its annexes have been returned to NARA, and NARA should coordinate further review by the Departments of State and Defense, so that DOD may consider whether the remaining information that DOE initially withheld continues to be properly classified as DOD Formerly Restricted Data, and so that both Departments may review this information to consider any other bases for withholding it. After those reviews have been completed, NARA will inform the National Security Archive of its determination concerning the release of the information the DOE initially withheld from the annexes.

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 annexes that the Director of SA has determined to be properly classified must continue to be withheld from disclosure. 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 July 25, 1999, Case No. VFA-0506, is hereby granted to the extent set forth in paragraph (2) below and denied in all other respects.

(2) The Department of Energy’s (DOE) Office of Security Affairs withholds from disclosure only the yields of specified weapons from Annexes A and B to a report by Carl Kaysen on “Strategic Air Planning and Berlin,” which was attached to a memorandum from General Maxwell Taylor to General Lyman Lemnitzer, dated September 6, 1961.

(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: February 24, 2000

(1)In its determination letter, NARA stated that all the deleted material had been identified as National Security Information by DOE, the Department of State, or the Department of Defense (DOD), and exempt from mandatory disclosure pursuant to Exemption 1 of the FOIA. In fact, however, DOE had informed NARA that it had identified the material it was withholding as information classified as Formerly Restricted Data, a different category of classified information. Accordingly, we will analyze the DOE withholdings as having been taken to protect Formerly Restricted Data.