Case No. VFA-0607, 28 DOE ¶ 80,149

February 7, 2001

DECISION AND ORDER

OF THE DEPARTMENT OF ENERGY

Appeal

Name of Petitioner:Chuck Hansen

Date of Filing: September 11, 2000

Case Number: VFA-0607

Chuck Hansen filed an Appeal from a determination that the Department of Energy’s Oakland Operations Office (Oakland) issued to him on August 31, 2000. In that determination, Oakland denied in part one of seven documents that Mr. Hansen requested in September 1990, pursuant to the Freedom of Information Act (FOIA), 5 U.S.C. § 552. Oakland provided Mr. Hansen with a copy of Document Number COPJ 79-203, “LLL-Designed Weapons in the Stockpile– Problems/Reliability,” dated May 14, 1979, from which information was withheld. Oakland withheld that information as the result of the Department of Energy's Office of Declassification reviewing the document and determining that it contained classified information. This Appeal, if granted, would require the Department of Energy (DOE) to release the information that it withheld from that document.

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 September 1990, Mr. Hansen submitted a request under the FOIA to Oakland, for seven specified documents. Oakland responded to the request by providing the first requested document in November 1999. In a second response to Mr. Hansen,

Oakland provided a redacted version of COPJ 79-203 from which information was deleted pursuant to a DOE determination that the withheld information warranted protection from disclosure under Exemption 3 of the FOIA.

The present Appeal seeks the disclosure of the withheld portions of the document described above. In his Appeal, Mr. Hansen contends that Oakland acted in an arbitrary and capricious manner when it withheld the information that it did, particularly because most, if not all, of that information has already been made public, and because the data at issue are 20 to 40 years old.

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

In performing his review the Director of SA determined that the information Oakland withheld concerns nuclear weapons design and specific developmental problems and design corrections. These categories of information are still considered Restricted Data 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, in determining that a few sentences, headings and footnotes are not classified, 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.

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 document 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, such consideration is not permitted where, as in the application of Exemption 3, the disclosure is prohibited by statute. Therefore, those portions of the document 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, a newly redacted version of the document reviewed in this Appeal will be provided to Mr. Hansen under separate cover. In this document, the Director has marked all deletions made by the DOE as "b(3)." Accordingly, Chuck Hansen’s Appeal will be granted in part and denied in part.

It Is Therefore Ordered That:

(1) The Appeal filed by Chuck Hansen on September 11, 2000, Case No. VFA-0607, is hereby granted to the extent set forth in paragraph (2) below and denied in all other respects.

(2) A newly redacted version of the document entitled “LLL-Designed Weapons in the Stockpile– Problems/Reliability,” Document Number COPJ 79-203, dated May 14, 1979, in which additional information is released, will be provided to Mr. Hansen.

(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 7, 2001