Case No. VFA-0742

October 2, 2002

DECISION AND ORDER

OF THE DEPARTMENT OF ENERGY

Appeal

Name of Petitioner:Jeffrey T. Richelson

Date of Filing: April 30, 2002

Case Number: VFA-0742

Jeffrey T. Richelson filed an Appeal from a determination that the National Nuclear Security Administration’s Nevada Operations Office issued to him on April 9, 2002. In that determination, the Nevada Operations Office denied a request for information that Mr. Richelson submitted on January 19, 2002, pursuant to the Freedom of Information Act (FOIA), 5 U.S.C. § 552. In that request, Mr. Richelson sought a copy of “the 1995 report of the Sewell review group on NEST,” the Nuclear Emergency Search Team. The Nevada Operations Office reviewed the requested document, which has been identified as the “Nuclear Emergency Search Team Assessment Team Report,” dated July 12, 1995. It determined that the document contained Unclassified Controlled Nuclear Information (UCNI) and withheld the document in its entirety from Mr. Richelson pursuant to Exemption 3 of the FOIA. Mr. Richelson has appealed this total withholding, contending that much of the document is not UCNI and should be released.

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.

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). Section 148 of the Atomic Energy Act directs the Department of Energy to issue regulations or orders to protect from unauthorized dissemination information that has been determined to contain UCNI. 42 U.S.C. § 2153(a). These regulations appear at 10 C.F.R. Part 1017.

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 UCNI. 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 the document that Mr. Richelson requested.

The Director determined on review that the document contains UCNI. He also determined, however, that the majority of the document’s contents is not UCNI. The Director has provided this office with a copy of the document from which the UCNI has been withheld. Beside each deletion, “b3" has been written in the margin of the document. The denying officer for these withholdings is Joseph S. Mahaley, Director, Office of Security, Department of Energy.

Based on the Director’s review, we have determined that the Atomic Energy Act requires the continued withholding of certain 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 documents that the Director has now determined to be UCNI must be withheld from disclosure.

At this time, however, we will not provide a copy of the redacted version of the document to Mr. Richelson. At the Director’s suggestion, we will remand this document to the Nevada Operations Office for a new review, in which it must consider whether any other provisions of the FOIA dictate that other portions of the document should not be released to Mr. Richelson. After completing its review, the Nevada Operations Office should either release the currently redacted version of the requested document or issue a new determination that provides adequate justification for any additional information that it withholds from the document it provides to Mr. Richelson. Mr. Richelson will have the opportunity to appeal that determination, if he so desires. Accordingly, Mr. Richelson’s Appeal will be granted in part and denied in part.

It Is Therefore Ordered That:

(1) The Appeal filed by Jeffrey T. Richelson on April 30, 2002, Case No. VFA-0742, is hereby granted to the extent set forth in paragraph (2) below and denied in all other respects.

(2) A redacted version of the document entitled “Nuclear Emergency Search Team Assessment Team Report,” dated July 12, 1995, bearing markings indicating where all Unclassified Controlled Nuclear Information has been properly deleted, will be remanded to the Nevada Operations Office of the National Nuclear Security Administration. The Nevada Operations Office shall promptly review the document and either release it in its entirety or issue a new determination that provides adequate justification for any additional information that it withholds from the copy it provides to Mr. Richelson.

(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: October 2, 2002