Case No. VFA-0533, 27 DOE ¶ 80,266

March 17, 2000

DECISION AND ORDER

OF THE DEPARTMENT OF ENERGY

Appeal

Name of Petitioner: The National Security Archive

Date of Filing: October 14, 1999

Case Number: VFA-0533

The National Security Archive filed an Appeal from a determination issued to it on September 16, 1999, by the Freedom of Information Manager, Department of the Air Force, 11th Wing (Air Force). In that determination, the Air Force denied in part a request for information that the National Security Archive filed pursuant to the Freedom of Information Act (FOIA), 5 U.S.C. § 552. The Air Force stated that certain information deleted from the documents released to the National Security Archive was withheld after a review of the documents had been performed by the Office of Declassification (now Office of Nuclear and National Security Information (ONNSI)) of the Department of Energy's Office of Security Affairs. This Appeal, if granted, would require the Department of Energy (DOE) to release information that it withheld through the Air Force’s September 16, 1999 determination.

The FOIA requires that federal agencies generally release to the public, upon request, documents in their possession and control. 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 2, 1993, the National Security Archive submitted a request to the Air Force for four documents, including two RAND Corporation reports titled “The MIRV System and Some of its Implications: An Overview” and “The U.S. ICBM FORCE: Current Issues and Future Options.(1) Because these documents contained DOE information, the Air Force

referred the documents to the DOE’s Office of Declassification (OD) for a determination concerning their possible release. OD responded by returning the documents to the Air Force after marking the information to be withheld and providing an explanation of each withholding. The Air Force released to the National Security Archive redacted versions of the requested materials in a determination issued on September 16, 1999.

On October 16, 1999, the National Security Archive filed this Appeal. In its determination letter, the Air Force explained that the information withheld could not be released under the Atomic Energy Act of 1954 and therefore was withheld under Exemption 3 of the FOIA. The information withheld contains information about the military utilization of atomic weapons that has been classified as Formerly Restricted Data (FRD).

The present Appeal seeks the disclosure of the withheld portions from the reports that the Air Force provided to the National Security Archive. In its Appeal, the National Security Archive states that the Department of Defense has released information on the “warhead yields of Titan and Minuteman III warheads.” Appeal Letter dated October 11, 1999, from William Burr, the National Security Archive, to Office of Hearings and Appeals, DOE. The National Security Archive further contends that this is the information withheld in the two documents at issue in this Appeal. Therefore, the National Security Archive argues that “when such information is already in the public record, the Department should be able to declassify it without violating statute or contributing, even indirectly, to nuclear proliferation.” Id.

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.,Glen Milner, 27 DOE ¶ 80,115 (1998); Barton J. Bernstein, 22 DOE ¶ 80,165 (1992). According to ONNSI, the portions of the two reports that the DOE deleted under Exemption 3 were withheld on the grounds that they contain information that has been classified as Formerly Restricted Data under the Atomic Energy Act and is therefore exempt from mandatory disclosure.

The Director of the Office 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 two reports at issue for which the DOE had claimed an exemption from mandatory disclosure under the FOIA.

The Director of SA considered the concerns the National Security Archive specifically raised in its Appeal, and performed as well a general review of the material under the current classification guidance. Based on the review that the Director of SA performed, the DOE has determined that the Atomic Energy Act requires the continued withholding of the information withheld in the initial determinations. In accordance with current joint Department of Defense/DOE classification guidance, the withheld information, which reveals yields of specific weapons, nuclear vulnerability and hardening data, and reliability of specific weapons, is still classified as FRD. Section 142 of the Atomic Energy Act, 42 U.S.C. § 2162, prohibits the disclosure of such information. Consequently, this information was and is properly withheld pursuant to Exemption 3 of the FOIA.

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 two reports at issue 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 denied.

It Is Therefore Ordered That:

(1) The Appeal that the National Security Archive filed on October 16, 1999, Case No. VFA-0533 is hereby denied.

(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: March 17, 2000

(1)”MIRV stands for Multiple Independently Targeted Reentry Vehicle and ICBM stands for Intercontinental Ballistic Missile.