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A Review of the Department of Energy Classification Policy and Practice
A REVIEW OF THE DEPARTMENT OF ENERGY CLASSIFICATION POLICY AND PRACTICE
Committee on Declassification of Information for the Department of Energy Environmental Remediation and Related Programs
Board on Radioactive Waste Management
Commission on Geosciences, Environment, and Resources
National Research Council
NATIONAL ACADEMY PRESS
WASHINGTON, DC 1995
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A Review of the Department of Energy Classification Policy and Practice
NOTICE: The project that is the subject of this report was approved by the Governing board of the National Research Council, whose members are drawn from the councils of the National Academy of Sciences, the National Academy of Engineering, and the Institute of Medicine. The members of the committee responsible for the report were chosen for their special competences and with regard for appropriate balance.
This report has been reviewed by a group other than the authors according to procedures approved by a Report Review Committee consisting of members of the National Academy of Sciences, the National Academy of Engineering, and the Institute of Medicine.
Support for this study on Declassification of Information for the Department of Energy Environmental Remediation and Related Programs was provided by the U.S. Department of Energy, under agreement DE-FC01-94EW54069.
Library of Congress Catalog Card No. 95-70717
International Standard Book Number 0-309-05338-2
Additional copies of this report are available from:
National Academy Press
2101 Constitution Avenue, N.W. Box 285 Washington, D.C. 20055 800-624-6242 202-334-3313 (in the Washington Metropolitan Area)
B-666
Copyright 1995 by the National Academy of Sciences. All rights reserved.
Cover design by Terri M. Jackson
Printed in the United States of America
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A Review of the Department of Energy Classification Policy and Practice
COMMITTEE ON DECLASSIFICATION OF INFORMATION FOR THE DEPARTMENT OF ENERGY ENVIRONMENTAL REMEDIATION AND RELATED PROGRAMS
RICHARD A. MESERVE, Chair,
Covington & Burling, Washington, D.C.
DEAN E. ABRAHAMSON,
University of Minnesota, Minneapolis
LYNDA L. BROTHERS,
Davis Wright Tremaine, Seattle, Washington
THOMAS A. COTTON,
JK Research Associates, Inc., Arlington, Virginia
PAUL P. CRAIG,
University of California, Davis
GEORGE A. FERGUSON,
Howard University (ret.), Washington, D.C.
H. JACK GEIGER,
City University of NY Medical School, New York, New York
MICHELE S. GERBER,
Westinghouse Hanford Company, Richland, Washington
KONRAD B. KRAUSKOPF,
Stanford University, Stanford, California
WOLFGANG K. H. PANOFSKY,
Stanford University, Stanford, California
RICHARD B. SETLOW,
Brookhaven National Laboratory, Upton, New York
PATRICIA A. WOOLF,
Princeton University, Princeton, New Jersey
Staff
CARL A. ANDERSON, Staff Director
ROBERT S. ANDREWS, Senior Staff Officer
DENNIS L. DuPREE, Senior Project Assistant
JO L. HUSBANDS, Senior Staff Officer
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A Review of the Department of Energy Classification Policy and Practice
BOARD ON RADIOACTIVE WASTE MANAGEMENT
MICHAEL C. KAVANAUGH, Chair,
ENVIRON Corporation, Emeryville, California
B. JOHN GARRICK, Vice-Chair,
PLG, Incorporated, Newport Beach, California
JOHN F. AHEARNE,
Sigma Xi, The Scientific Research Society, Research Triangle Park, North Carolina
JEAN M. BAHR,
University of Wisconsin, Madison
LYNDA L. BROTHERS,
Davis Wright Tremaine, Seattle, Washington
SOL BURSTEIN,
Wisconsin Electric Power, Milwaukee (retired)
MELVIN W. CARTER,
Georgia Institute of Technology, Atlanta (emeritus)
PAUL P. CRAIG,
University of California, Davis (emeritus)
MARY R. ENGLISH,
University of Tennessee, Knoxville
ROBERT D. HATCHER, JR.,
University of Tennessee/Oak Ridge National Laboratory, Knoxville
DARLEANE C. HOFFMAN,
Lawrence Berkeley Laboratory, Berkeley, California
H. ROBERT MEYER,
Keystone Scientific, Inc., Fort Collins, Colorado
PERRY L. McCARTY,
Stanford University, Stanford, California
CHARLES McCOMBIE,
National Cooperative for the Disposal of Radioactive Waste, Wettingen, Switzerland
PRISCILLA P. NELSON,
University of Texas at Austin
D. KIRK NORDSTROM,
U.S. Geological Survey, Boulder, Colorado
D. WARNER NORTH,
Decision Focus, Inc., Mountain View, California
GLENN PAULSON,
Illinois Institute of Technology, Chicago
PAUL SLOVIC,
Decision Research, Eugene, Oregon
BENJAMIN L. SMITH, Independent Consultant,
Columbia, Tennessee
Staff
CARL A. ANDERSON, Staff Director
KEVIN D. CROWLEY, Associate Director
ROBERT S. ANDREWS, Senior Staff Officer
KARYANIL T. THOMAS, Senior Staff Officer
THOMAS KIESS, Staff Officer
SUSAN B. MOCKLER, Research Associate
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A Review of the Department of Energy Classification Policy and Practice
ROBIN L. ALLEN, Senior Project Assistant
REBECCA BURKA, Senior Project Assistant
LISA J. CLENDENING, Senior Project Assistant
DENNIS L. DuPREE, Senior Project Assistant
SCOTT HASSELL, Project Assistant
PATRICIA A. JONES, Project Assistant
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A Review of the Department of Energy Classification Policy and Practice
COMMISSION ON GEOSCIENCES, ENVIRONMENT, AND RESOURCES
M. GORDON WOLMAN, Chair,
The Johns Hopkins University, Baltimore, Maryland
PATRICK R. ATKINS,
Aluminum Company of America, Pittsburgh, Pennsylvania
EDITH BROWN WEISS,
Georgetown University Law Center, Washington, D.C.
JAMES P. BRUCE,
Canadian Climate Program Board, Ottawa, Ontario, Canada
WILLIAM L. FISHER,
University of Texas at Austin
EDWARD A. FRIEMAN,
University of California, La Jolla
GEORGE M. HORNBERGER,
University of Virginia, Charlottesville
W. BARCLAY KAMB,
California Institute of Technology, Pasadena
PERRY L. MCCARTY,
Stanford University, Stanford, California
S. GEORGE PHILANDER,
Princeton University, Princeton, New Jersey
RAYMOND A. PRICE,
Queen's University at Kingston, Ontario, Canada
THOMAS C. SCHELLING,
University of Maryland, College Park
ELLEN SILBERGELD,
Environmental Defense Fund, Washington, D.C.
STEVEN M. STANLEY,
The Johns Hopkins University, Baltimore, Maryland
VICTORIA J. TSCHINKEL,
Landers and Parsons, Tallahassee, Florida
Staff
STEPHEN RATTIEN, Executive Director
STEPHEN PARKER, Associate Executive Director
MORGAN GOPNIK, Assistant Executive Director
JIM MALLORY, Administrative Officer
SANDI FITZPATRICK, Administrative Associate
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A Review of the Department of Energy Classification Policy and Practice
The National Academy of Sciences is a private, nonprofit, self-perpetuating society of distinguished scholars engaged in scientific and engineering research, dedicated to the furtherance of science and technology and to their use for the general welfare. Upon the authority of the charter granted to it by the Congress in 1863, the Academy has a mandate that requires it to advise the federal government on scientific and technical matters. Dr. Bruce Alberts is president of the National Academy of Sciences.
The National Academy of Engineering was established in 1964, under the charter of the National Academy of Sciences, as a parallel organization of outstanding engineers. It is autonomous in its administration and in the selection of its members, sharing with the National Academy of Sciences the responsibility for advising the federal government. The National Academy of Engineering also sponsors engineering programs aimed at meeting national needs, encourages education and research, and recognizes the superior achievements of engineers. Dr. Harold Liebowitz is president of the National Academy of Engineering.
The Institute of Medicine was established in 1970 by the National Academy of Sciences to secure the services of eminent members of appropriate professions in the examination of policy matters pertaining to the health of the public. The Institute acts under the responsibility given to the National Academy of Sciences by its congressional charter to be an adviser to the federal government and, upon its own initiative, to identify issues of medical care, research, and education. Dr. Kenneth Shine is president of the Institute of Medicine.
The National Research Council was organized by the National Academy of Sciences in 1916 to associate the broad community of science and technology with the Academy's purposes of furthering knowledge and of advising the federal government. Functioning in accordance with general policies determined by the Academy, the Council has become the principal operating agency of both the National Academy of Sciences and the National Academy of Engineering in providing services to the government, the public, and the scientific and engineering communities. The Council is administered jointly by both Academies and the Institute of Medicine. Dr. Bruce Alberts and Dr. Harold Liebowitz are chairman and vice chairman, respectively, of the National Research Council.
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A Review of the Department of Energy Classification Policy and Practice
PREFACE
On December 7, 1993, Secretary of Energy Hazel O'Leary announced that the Department of Energy (DOE) had commenced aggressive efforts "to lift the veil of Cold War secrecy" that has surrounded many of DOE's activities. She declared her intention to declassify significant amounts of information that had previously been withheld from the public for reasons of national security. This report has its origin in the Secretary's subsequent request to the National Academy of Sciences for guidance in that effort (see Appendix A). In response to her request, the Academy formed the Committee on Declassification of Information for the DOE Environmental Remediation and Related Programs (brief biographical sketches of the members are found in Appendix B).
The Committee held a one-day work session involving officials from the Department and representatives of various affected groups on February 16, 1994. (The work session agenda and list of participants are found in Appendix C; a transcript of the work session is available from the Academy upon request.) The Committee subsequently reviewed an extensive amount of material and held meetings (see Appendix D) to pursue issues raised at the work session, as well as others that arose during the conduct of this study. This report is a result of the Committee's efforts.
During its deliberations, the Committee had substantial assistance from representatives of DOE, especially from the Office of Declassification, from various groups with interests in gaining access to information in the Department's possession, and from interested individuals. Their assistance eased our burden, and we appreciate their help. In addition, we acknowledge the contributions of Gary Stern and William Happer, members of the Committee who withdrew before this report was completed, and the assistance of Jo L. Husbands, director of the Academy's Committee on International Security and Arms Control, for her insightful technical editing of the report.
RICHARD A. MESERVE
CHAIR
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A Review of the Department of Energy Classification Policy and Practice
TABLE OF CONTENTS
EXECUTIVE SUMMARY
1
The Changing Context for Classification Policy
1
The Classification System
3
Basic Principles for DOE Information Policy
3
1. Minimizing the areas that are classified
3
2. Shifting the burden of proof
4
3. Balancing costs and risks
4
4. Enhancing openness and public access
4
Taking the Initiative
5
Defining the Information Subject to Classification
6
Declassifying Documents
7
INTRODUCTION
11
CHAPTER 1:
CONTEXT
15
A. The Forces for Change
15
B. The Competing Interests
17
C. Practical and Institutional Obstacles to Change
20
CHAPTER 2:
A DESCRIPTION OF THE CURRENT SYSTEM
23
A. Classification Controls
23
1. Two Systems
23
2. Policy Coordination
26
B. The Operation of the Classification System
30
C. The Freedom of Information Act
31
D. Mandatory Review for Declassification
34
E. Records Retention and Destruction
35
CHAPTER 3:
BASIC PRINCIPLES AND PRIORITIES FOR CHANGE
39
A. Basic Principles
39
1. Minimizing the areas that are classified
39
2. Shifting the burden of proof
40
3. Balancing costs and risks
41
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A Review of the Department of Energy Classification Policy and Practice
4. Enhancing openness and public access
44
B. Priorities for Legislative and Regulatory Changes
47
1. Amending the Atomic Energy Act (AEA)
47
2. Using the regulatory process
50
CHAPTER 4:
ISSUES IN CLASSIFICATION POLICY
53
A. The Case of Nuclear Weapons Information
54
1. General policy issues
54
2. Transparency vis-à-vis the Russians
56
B. The Special Case of UCNI
59
1. The original purpose of UCNI
61
2. New uses of UCNI
63
CHAPTER 5:
DECLASSIFYING DOCUMENTS
67
A. Dealing with Existing Documents
67
1. Defining the problem
68
2. Setting priorities
69
3. Making the process work
72
4. Increasing effectiveness
75
5. Future improvements
76
B. Newly Generated Documents
78
CHAPTER 6:
INCENTIVES AND ACCOUNTABILITY
83
A. Steps to Change the Culture
83
B. The Issue of Judicial Review
85
CHAPTER 7:
SUMMARY OF RECOMMENDATIONS
89
A. Basic Principles
89
B. Priorities for Legislative and Regulatory Changes
90
C. Issues in Classification Policy
91
D. Declassifying Documents
92
E. Incentives and Accountability
93
ABBREVIATIONS USED IN THE REPORT
95
REFERENCES CITED
97
APPENDIX A:
CHARGE TO THE COMMITTEE
101
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APPENDIX B:
BIOGRAPHICAL SKETCHES OF COMMITTEE MEMBERS
105
APPENDIX C:
WORK SESSION AGENDA AND LIST OF PARTICIPANTS
109
APPENDIX D:
LIST OF COMMITTEE MEETINGS
113
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