Case No. VFA-0520, 28 DOE ¶ 80,111

September 7, 2000

DECISION AND ORDER

OF THE DEPARTMENT OF ENERGY

Appeal

Name of Petitioner:Hans M. Kristensen

Date of Filing: August 30, 1999

Case Number: VFA-0520

Hans M. Kristensen filed an Appeal from a determination that the Department of Energy’s Albuquerque Operations Office (Albuquerque) issued to him on July 12, 1999. In that determination, Albuquerque denied in part six requests for information that Mr. Kristensen submitted in May 1996, pursuant to the Freedom of Information Act (FOIA), 5 U.S.C. § 552. It provided copies of two particular documents, among others, from which information was withheld. That information was withheld as the result of the Department of Energy's Office of Declassification, as well as the Department of Defense’s Defense Threat Reduction Agency (DTRA), reviewing the documents and determining that they contained classified information. This Appeal, if granted, would require the Department of Energy (DOE) to release the information that it withheld from those two documents.

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 May 1996, Mr. Kristensen submitted a series of six requests under the FOIA to Albuquerque. Albuquerque responded to the requests by providing a number of documents. Among those documents were two from which information was

deleted pursuant to a DOE determination that some of the withheld information warranted protection from disclosure under Exemption 3 of the FOIA and a DTRA determination that the remainder of the withheld information warranted protection from disclosure under Exemptions 1 and 3 of the FOIA. These two documents were identified as “Lightning/Nuclear Weapon Accidents and Incidents Reported by FC/DASA in the Period from Early 1961 to February 1968,” and “Nuclear Weapon Accident Photos– B52 Flying Alert over Goldsboro, N.C.”

The present Appeal seeks the disclosure of the withheld portions of the two documents described above. In his Appeal, Mr. Kristensen contends that Albuquerque engaged in “excessive secrecy” and possibly outdated guidance when it withheld the volume of information that it did, particularly in light of the age of the information.

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., National Security Archive, 26 DOE ¶ 80,118 (1996); Barton J. Bernstein, 22 DOE ¶ 80,165 (1992); William R. Bolling, II, 20 DOE ¶ 80,134 (1990).

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 requested documents for which the DOE had claimed exemptions from mandatory disclosure under the FOIA.

In performing his review the Director of SA requested that DTRA also review the validity of the deletions made from the two documents. According to the Director of SA, DTRA withheld most of the information that was not disclosed to Mr. Kristensen. However, a small amount of information within the DTRA deletions was withheld by DOE as Formerly Restricted Data (FRD), concerning military utilization of nuclear weapons, or Restricted Data (RD), concerning weapons design information. These categories of information are still considered FRD or RD under current classification guidance. Under the Atomic Energy Act of 1954, this information is classified, and is therefore exempt from mandatory disclosure under Exemption 3. Nevertheless, the Director of SA has reduced the extent of the previously deleted portions to permit releasing the maximum amount of information consistent with national security considerations.

The Director of SA has also informed us that the material originally identified and redacted at the direction of DTRA is National Security Information (NSI) or FRD. Some of this material concerns military plans, weapons systems, or operations. As such, it is defined as National Security Information under Executive Order 12958, and DTRA therefore determined that it is exempt from mandatory disclosure under Exemption 1 of the FOIA, which exempts from mandatory disclosure matters that are classified under criteria established by an Executive Order. 5 U.S.C. § 552(b)(1). The remaining material that DTRA deleted is related to the military utilization of nuclear weapons. DTRA has determined this information to be Formerly Restricted Data under the Atomic Energy Act of 1954, and therefore exempt from mandatory disclosure under Exemption 3. As a result of its review, DTRA has, like DOE, reduced the extent of the previously deleted portions to permit releasing the maximum amount of information consistent with national security considerations. The denying official for the information withheld by DTRA is Major General William F. Moore, USAF, Deputy Director, DTRA.

Based on the review performed by the Director of SA, we have determined that the Atomic Energy Act requires the continued withholding of much of those portions of the documents under consideration in this Appeal. 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 documents that the Director of SA has now determined to be properly classified must be withheld from disclosure. However, because some previously deleted information may now be released as a result of the Director of SA's review, newly redacted versions of the two documents reviewed in this Appeal will be provided to Mr. Kristensen under separate cover. In these documents, the Director has marked all deletions made by the DOE as "DOE b(3)." The deletions now being made at the direction of DTRA are indicated on the documents as “DTRA b(1),” for those being withheld under Exemption 1 and “DTRA b(3),” for those being withheld under Exemption 3. Accordingly, Hans M. Kristensen’s Appeal will be granted in part and denied in part.

It Is Therefore Ordered That:

(1) The Appeal filed by Hans M. Kristensen on August 30, 1999, Case No. VFA-0520, is hereby granted to the extent set forth in paragraph (2) below and denied in all other respects.

(2) Newly redacted versions of the documents entitled “Lightning/Nuclear Weapon Accidents and Incidents Reported by FC/DASA in the Period from Early 1961 to February 1968,” and “Nuclear Weapon Accident Photos– B52 Flying Alert over Goldsboro, N.C.”, in which additional information is released, will be provided to Mr. Kristensen.

(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 7, 2000