Case No. VFA-0724

August 15, 2002

DECISION AND ORDER

OF THE DEPARTMENT OF ENERGY

Appeal

Name of Petitioner:John C. Fredriksen

Date of Filing: February 12, 2002

Case Number: VFA-0724

John C. Fredriksen filed an Appeal from a determination that the Department of the Air Force issued to him on November 5, 2001. In that determination, the Air Force denied in part a request for information that Dr. Fredriksen submitted on August 31, 1999, pursuant to the Freedom of Information Act (FOIA), 5 U.S.C. § 552. Of the three documents requested, the Department of Energy’s (DOE) Office of Classified Controlled Information Review reviewed two of them, and determined that one contained classified information. Both the DOE and the Air Force withheld the classified information from the requester under the FOIA. This Appeal, if granted, would require the DOE to release the information that it withheld from the version of the document supplied to Dr. Fredriksen. Other portions of the three requested documents were withheld by the Air Force alone; those withholdings are not a part of this Appeal.

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

On August 31, 1999, Dr. Fredriksen requested specific pages of three Tactical Air Command histories under the FOIA from the Air Force. The Air Force responded to the request by providing the requested pages. Some information on some of the pages, however, was deleted. In its November 5, 2001 determination letter, the Air Force explained that it had withheld some information as exempt from release under Exemption 1 of the FOIA, and the DOE had withheld some information as exempt under Exemption 3 of the FOIA. The DOE withheld information from only one of the requested documents, “History of Tactical Air Command, July- December 1951.”

The present Appeal seeks the disclosure of the portions of the document that the DOE withheld. In his Appeal, Dr. Fredriksen contends that the withholdings concern “both the B-45 jet and the Mark 5 atomic device [which] are no longer extant,” and questions how the withheld information could “possibly compromise national security.”

II. Analysis

Exemption 1 of the FOIA provides that an agency may exempt from disclosure matters that are "(A) specifically authorized under criteria established by an Executive order to be kept secret in the interest of national defense or foreign policy and (B) are in fact properly classified pursuant to such Executive order." 5 U.S.C. § 552(b)(1); see 10 C.F.R. § 1004.10(b)(1). Executive Order 12958 is the current Executive Order that provides for the classification, declassification and safeguarding of national security information. When properly classified under this Executive Order, national security information is exempt from mandatory disclosure under Exemption 1. See Greenpeace, 28 DOE ¶ 80,191 (2001); National Security Archive, 26 DOE ¶ 80,118 (1996); Keith E. Loomis, 25 DOE ¶ 80,183 (1996); A. Victorian, 25 DOE ¶ 80,166 (1996).

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 of the type to which Exemption 3 refers. See, e.g., Greenpeace, 28 DOE ¶ 80,191 (2001); 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) (Director) reviewed those portions of the document for which the DOE had claimed exemptions from mandatory disclosure under the FOIA.

According to the Director, the DOE determined on review that the document contains information concerning the design of nuclear weapons and nuclear weapon yields and weapon effects. These types of information have been classified as Restricted Data (RD) and Formerly Restricted Data (FRD), respectively, under the DOE’s current classification guidance. Under the Atomic Energy Act of 1954, RD and FRD are forms of classified information, and are therefore exempt from mandatory disclosure under Exemption 3. The Director has marked all deletions the DOE has made as “DOE b3" in the margin of the document. The denying officer for these withholdings is Joseph S. Mahaley, Director, Office of Security, Department of Energy.

In performing his review the Director requested that the Air Force also review the validity of the deletions it originally made from the portions of the document in which the DOE had withheld information. The Air Force has completed its review. The Director has marked all deletions made at the direction of the Air Force, under Exemption 1 of the FOIA, as “ACC/DON b1” in the margin of the document. The Air Force has withheld the same information under Exemption 1 as the DOE has withheld under Exemption 3. In addition, a small amount of information has been withheld solely by the Air Force, also under Exemption 1. This information consists of the last four deleted phrases on page 60 of the document. The denying official for these withholdings is Colonel Gerald F. Alexander, Jr., Deputy Director, Communications and Information Systems, Department of the Air Force.

Based on the Director’s review, we have determined that Executive Order 12958 and the Atomic Energy Act require the continued withholding of significant 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 Exemptions 1 and 3, the disclosure is prohibited by executive order or statute. Therefore, those portions of the documents that the Director has now determined to be properly classified must be withheld from disclosure. Nevertheless, the Air Force and the Director have 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 portions of the document reviewed in this Appeal will be provided to Dr. Fredriksen under separate cover. Accordingly, his Appeal will be granted in part and denied in part.

It Is Therefore Ordered That:

(1) The Appeal filed by John C. Fredriksen on February 12, 2002, Case No. VFA-0724, is hereby granted to the extent set forth in paragraph (2) below and denied in all other respects.

(2) Newly redacted versions of the document entitled “History of Tactical Air Command, July-December 1951,” in which additional information is released, will be provided to Dr. Fredriksen.

(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: August 15, 2002