Case No. VFA-0676

September 26, 2001

DECISION AND ORDER

OF THE DEPARTMENT OF ENERGY

Appeal

Name of Petitioner:Arnold Kramish

Date of Filing: June 7, 2001

Case Number: VFA-0676

Arnold Kramish filed an Appeal from a determination that the Albuquerque Operations Office (Albuquerque) of the Department of Energy (DOE) issued to him on May 24, 2001. In that determination, Albuquerque denied in part a request for information that Mr. Kramish submitted on October 28, 1997, pursuant to the Freedom of Information Act (FOIA), 5 U.S.C. § 552, for a copy of a letter he himself had written “from the AEC Office of Intelligence, on May 4, 1950, addressed to Frederic de Hoffman, at Los Alamos.” Albuquerque provided a copy of the letter and its attachment from both of which information was withheld. That information was withheld as the result of the DOE’s Document Declassification Division (formerly the Office of Declassification) reviewing the document and determining that it contained classified information. This Appeal, if granted, would require the DOE to release the information that it withheld from the letter and attachment.

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 response to Mr. Kramish’s request for a copy of his May 4, 1950 letter, Albuquerque provided a copy from which the bulk of the text had been withheld. As justification for withholding the information, Albuquerque asserted that the information was related to nuclear weapon design and therefore had been classified as Restricted Data pursuant to the Atomic Energy Act of 1954, 42 U.S.C. § 2011 et seq. Such information, according to Albuquerque, is exempt from disclosure to the public under Exemption 3 of the FOIA. The present Appeal seeks the disclosure of the withheld portions of the letter and attachment. In his Appeal, Mr. Kramish contends that materials published subsequent to the date of the letter may contain information similar to that which has been withheld in this case, in which event the withholding of that information should be reconsidered.

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 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 Security Affairs (now the Director of Security and Emergency Operations) (Director) reviewed those portions of the requested document for which the DOE had claimed exemption from mandatory disclosure under the FOIA.

According to the Director, the DOE determined on review that the requested letter contains information concerning nuclear weapon research. This type of information has been classified as Restricted Data (RD) under the DOE’s current classification guidance. Under the Atomic Energy Act of 1954, RD is one form of classified information, and is therefore exempt from mandatory disclosure under Exemption 3.

Mr. Kramish argues that a number of public documents, including the work of English and Soviet scientists, have disclosed “vast information on the dawn of the thermonuclear weapons era.” The DOE has considered this claim carefully. We note that with respect to requests for classified information, the Court of Appeals for the District of Columbia Circuit has held that information must be “officially acknowledged” to have been released to the public in order for such a release to be considered a public disclosure. See Fitzgibbon v. CIA, 911 F.2d 755, 765 (D.C. Cir. 1990). The DOE does not officially acknowledge that the information it continues to withhold has been released. That information is therefore classified under the current classification guidance.

Based on the Director’s review, we have determined that the Atomic Energy Act requires the continued withholding of some portions of the letter and attachment 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 letter and attachment that the Director has now determined to be properly classified must be withheld from disclosure. Nevertheless, the Director has reduced the extent of the previously deleted portions to permit releasing the maximum amount of information consistent with national security considerations. Because some previously deleted information may now be released, newly redacted versions of the letter and attachment reviewed in this Appeal will be provided to Mr. Kramish under separate cover. Accordingly, Arnold Kramish’s Appeal will be granted in part and denied in part.

It Is Therefore Ordered That:

(1) The Appeal filed by Arnold Kramish on June 7, 2001, Case No. VFA-0676, is hereby granted to the extent set forth in paragraph (2) below and denied in all other respects.

(2) A newly redacted version of Arnold Kramish’s May 4, 1950 letter, together with its attachment, addressed to Frederic de Hoffman at Los Alamos, in which additional information is released, will be provided to Mr. Kramish.

(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 26, 2001