Case No. VFA-0489

September 26, 2001

DECISION AND ORDER

OF THE DEPARTMENT OF ENERGY

Appeal

Name of Petitioner:Greenpeace

Date of Filing: April 5, 1999

Case Number: VFA-0489

Hans M. Kristensen filed an Appeal, on behalf of Greenpeace, from a determination that Albuquerque Operations Office (Albuquerque) of the Department of Energy (DOE) issued to Greenpeace on March 31, 1999. In that determination, Albuquerque denied in part a request for information that Greenpeace submitted on January 19, 1994, pursuant to the Freedom of Information Act (FOIA), 5 U.S.C. § 552. It provided copies of two documents from which information was withheld. That information was withheld as the result of the DOE’s Office of Declassification, as well as the Department of Defense (DOD) and the Department of State (DOS), reviewing the documents and determining that they contained classified information. This Appeal, if granted, would require the DOE to release the information that it withheld from those two documents. A third document was requested but not located at DOE; that document is 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 January 19, 1994, Greenpeace requested information under the FOIA concerning three specific topics. Albuquerque responded to the requests by stating that it was unable to locate any documents relating to the first topic, “U.S. Navy INF Potential, 1988,” and providing one document responsive to each of the other topics. Information was deleted from each of those documents pursuant to a DOE determination that some of the withheld information warranted protection from disclosure under Exemptions 1 and 3 of the FOIA and determinations by the DOD and the DOS that the remainder of the withheld information was classified and therefore warranted protection from disclosure under the FOIA. These two documents were identified as “Modular Weapons Systems and Insertable Nuclear Components” (Document 1) and “An Overview of Tactical-Nuclear-Weapon Employment in Central Europe, Korea, and the Middle East” (Document 2).

The present Appeal seeks the disclosure of the withheld portions of the two documents described above. In his Appeal, Mr. Kristensen contends that the withholdings are “based on outdated guidance, unreasonable, and out of sync with recent FOIA reform.”

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

According to the Director, the DOE determined on review that both documents contain information concerning nuclear weapon plans and employment, as well as other details of military utilization of nuclear weapons. These types of information have been classified as Formerly Restricted Data (FRD) under the DOE’s current classification guidance. Document 1 also contains information regarding nuclear weapons design, which has been classified as Restricted Data (RD) 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 also informed us that some of the material withheld from each of the documents relates to military plans, targeting priorities, and intelligence information. As such, it is defined as National Security Information under Section 1.5(a) and (c) of Executive Order 12958, and is therefore exempt from mandatory disclosure under Exemption 1 of the FOIA. The material that the DOE continues to withhold under Exemptions 1 and 3 of the FOIA is identified in the margin of the documents as “DOE (b)(1)” and “DOE (b)(3).”

In performing his review the Director requested that the DOD and the DOS also review the validity of the deletions each of those agencies originally made from the two documents. Each agency has completed its review. The Director has marked all deletions made at the direction of the DOD, under Exemptions 1 and 3 of the FOIA, as “DOD” in the margin of the documents. The denying official for these withholdings is Mr. H.J. McIntyre, Director, Freedom of Information and Security Review, Department of Defense. In addition, the DOS has instructed the Director to withhold one passage in Document 2 under Exemption 1 of the FOIA, which has been marked “DOS (b)(1)” in the margin. The denying official for this withholding is Margaret P. Grafeld, Director, Office of Information Resource Management Programs and Services, Department of State.

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 documents 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 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 DOD 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 two documents reviewed in this Appeal will be provided to Greenpeace under separate cover. Accordingly, Greenpeace’s Appeal will be granted in part and denied in part.

It Is Therefore Ordered That:

(1) The Appeal filed by Greenpeace on March 31, 1999, Case No. VFA-0489, is hereby granted to the extent set forth in paragraph (2) below and denied in all other respects.

(2) Newly redacted versions of the documents entitled “Modular Weapons Systems and Insertable Nuclear Components” and “An Overview of Tactical-Nuclear- Weapon Employment in Central Europe, Korea, and the Middle East,” in which additional information is released, will be provided to Greenpeace.

(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