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A Review of the Department of Energy Classification Policy and Practice EXECUTIVE SUMMARY On December 7, 1993, Secretary of Energy Hazel O'Leary announced an Openness Initiative, the centerpiece of her efforts to make information in areas of concern to the public more accessible. In a news release at that time, the Secretary declared that the goal of this Initiative is ''to lift the veil of Cold War secrecy and move the Department of Energy [DOE or the Department] into a new era of government openness.'' Accordingly, a fundamental reexamination of DOE classification policy and practice is now under way. Achieving the Secretary's goal of openness and public access to information demands changes both in classification policy and in the process of declassifying and disseminating documents. For example, the Secretary's Initiative was in part a response to public concern about the environmental, safety, and health (ES&H) effects of past DOE activities. DOE has established a policy that all ES&H information is now unclassified in principle, although much of this information is not necessarily available to the public because the documents containing it may also contain other, still-classified information. Before the documents can be made available to the public, they must therefore undergo a painstaking declassification review to guard against the inadvertent release of sensitive information. Simply finding the relevant material amid DOE's vast collection of classified material is a formidable task. And DOE is losing ground in its declassification efforts—more new classified documents are being created than old documents are being released. The Changing Context for Classification Policy DOE's initiatives take place within a larger, government-wide effort to reexamine classification policy in the wake of the end of the Cold War. U.S. national security policy is no longer directed against the overarching threat of the Soviet Union and its allies. The primary concern of protecting information related to nuclear weapons has shifted to stemming the threat of nuclear proliferation. This complicates some aspects of maintaining the classification system. Protecting information
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A Review of the Department of Energy Classification Policy and Practice about old nuclear weapons designs or outdated production techniques was formerly considered important but had a lower priority simply because a sophisticated nuclear weapons power like the Soviet Union already had such information. Now, however, protecting such information is essential because the would-be nuclear powers of greatest proliferation concern are less technically sophisticated nations or even terrorist groups, and older (or generally simpler) design and production techniques might better match the capabilities of a potential proliferator. No foreseeable new nuclear state would pose a threat to the United States and its allies comparable to the threat from the former Soviet bloc. Thus, information that could have helped Soviet bloc war planners, such as the size and composition of fissionable materials inventories or data on most past nuclear weapons activities (but not designs) that might reveal present total capability, is no longer as sensitive as it was once believed to be. Classification policy must reflect a balance of opposing values. Powerful and compelling reasons continue to exist for protecting genuinely sensitive nuclear weapons information, even though considerable information is already in the public domain. Access to classified information is no longer necessary for a potential proliferator to construct a simple nuclear weapon, but such access could make it significantly easier to build such a device or to make it more effective. The Department would fail in its responsibilities if it did not protect certain design and production information, but the appropriate scope of the information that warrants such careful protection is difficult to define. In the past, DOE has erred on the side of caution and given the benefit of the doubt to those who argued for classifying many kinds of information. That balance should now be questioned. Secrecy has costs as well as benefits. Secrecy in some areas is inimical to scientific and technical progress. More broadly, the proper functioning of democracy depends on an informed citizenry. Public confidence in government is furthered if independent scrutiny and careful accountability are assured. Making available information that was kept at least partially classified—ES&H effects of the nuclear weapons complex on the public; the numbers, kinds, and disposition of existing nuclear weapons; and the verifiability of nuclear testing—would illuminate the debate on important public issues. Secrecy is also expensive. Creating a classified document imposes a mortgage on the Department to pay for its protection and ultimate review
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A Review of the Department of Energy Classification Policy and Practice for declassification. DOE estimates that the direct costs of the current classification system are nearly $100 million a year. The indirect costs, in terms of productivity and public accountability, are very difficult to quantify, but are probably several times larger. The Classification System The current classification system derives from several separate measures to protect sensitive information. The Atomic Energy Act (AEA) authorizes a system to protect certain nuclear-related information called restricted data (RD). Other, so-called national security information (NSI) is regulated by Executive Order. DOE also exercises control over several other classes of nuclear-related information, such as unclassified controlled nuclear information (UCNI). The existence of these parallel and somewhat different legal regimes makes the development and application of policy difficult because rules that apply to one category of information do not necessarily apply to another. Declassification of NSI requires agreement among several agencies, and consensus is often elusive. But the divided responsibility for classified information also gives the DOE Secretary an important opportunity to seize the initiative, since under the AEA the Department has independent authority to set policy and declassify documents for many areas of RD. Basic Principles for DOE Information Policy 1. Minimizing the areas that are classified Classification is clearly necessary when uncontrolled release of sensitive information could threaten national security. In a democracy, however, secrecy must be viewed as a necessary evil, to be used sparingly and only with strong justification. DOE should seek to maintain stringent security around sharply defined and narrowly circumscribed areas, but to reduce or eliminate classification around areas of less sensitivity.
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A Review of the Department of Energy Classification Policy and Practice 2. Shifting the burden of proof DOE should be guided by the presumption that information should not be classified unless there is an identifiable reason why the release of the information could damage national security or a reason for concluding that the costs of release outweigh the benefits. The burden of proof should be on those who argue for classification, not on those who propose declassification. 3. Balancing costs and risks Information should be classified only if the damage to national security demonstrably outweighs both the public benefit from the disclosure of that information and the costs of attempting to prevent such disclosure. Such a balancing test should be based on an agreed-upon set of criteria for declassification review that has been developed with adequate opportunity for public input. DOE's philosophy should change from the current emphasis on "risk avoidance" to "risk management." 4. Enhancing openness and public access The Department's goal should be "open policies openly arrived at." DOE should establish an Information Policy Advisory Board, appointed by the Secretary and composed of experienced outside experts broadly representative of the major stakeholders in DOE's classification policy. The Board would initially provide systematic external input to the fundamental review of classification policy currently under way. Later it could serve a variety of functions, such as making recommendations of priorities for document declassification efforts. Taking the Initiative The Secretary of Energy should take advantage of DOE's unique authority to set policy in certain areas of RD. Two important policy
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A Review of the Department of Energy Classification Policy and Practice changes that do not require approval of other agencies or amending the AEA would be Establishing a systematic declassification review of existing documents containing RD, based on priorities reflecting public needs and interests. Promulgating a regulation to prohibit abuses of classification under the AEA, comparable to those that now exist for other types of classified information. In addition, DOE should continue to take the lead in areas where interagency agreement is required and to propose amendments to the AEA to enhance, with the Department of Defense (DOD), the authority to remove some information primarily related to military use of atomic weapons from the category of RD if the agencies determine it can be adequately protected as national security information. This category of information is called formerly restricted data (FRD). Unlike NSI, however, FRD cannot be transferred to any other country except as part of an agreement authorized as part of the Atomic Energy Act. Because this constraint appears needlessly confining, DOE should seek legislative authority to simply transclassify to NSI any RD that no longer warrant special protection as nuclear-related information but still may be sensitive for other military or diplomatic reasons. This would permit elimination of the entire category of FRD. Where possible, DOE should also develop and adopt any new rules and procedures as regulations using established federal procedures, i.e., notice-and-comment rulemaking. Such regulations would largely replace the current system of DOE orders and would provide a well-understood and accepted mechanism for formal public input into the process. Rulemaking also increases accountability, since decisions are subject to judicial review. Specifically, DOE should promulgate a new regulation concerning classification and declassification of RD and reconsider its existing regulation governing UCNI.
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A Review of the Department of Energy Classification Policy and Practice Defining the Information Subject to Classification DOE's classification policy and its classification guides apply to types and categories of information. Public pressures for greater openness are directed toward four main categories of information: (1) the ES&H effects of DOE activities; (2) the exploitation of classified technologies with potential commercial applications; (3) the historical actions of DOE and its predecessor agencies; and (4) nuclear weapons policy, dismantlement of surplus weapons, and management of the resulting materials. Significant progress has been made in declassifying information in the first two areas, and some progress has been made in the third and fourth. Major issues remain to be addressed, however, especially regarding nuclear weapons information. The DOE has taken important but only initial steps toward declassification of information that will help inform the public debate about nuclear weapons policy. One example is nuclear weapons tests. A list of all U.S. nuclear tests has been declassified, but only the yields of tests conducted prior to 1962 have been made public. DOE must have agreement from DOD to release the yields of post-1962 tests, and so far consensus has not been achieved. The United States is currently engaged in negotiations with Russia to persuade it to strengthen controls over the management of fissionable materials from both its weapons and civilian energy programs. As the Committee on International Security and Arms Control of the National Academy of Sciences recommended in its 1994 report, Management and Disposition of Excess Weapons Plutonium, an essential part of this process would be increasing transparency on both sides about the content, location, and management of stockpiles of strategic and other nuclear materials. Russia's secrecy about its nuclear programs is deeply ingrained, and progress to date has been slow. DOE should continue to pursue reciprocal exchanges of information with Russia. Specifically, DOE should explore arrangements in which each party to the exchange retains the right to allow or prevent the public release of the information that it is providing to the other party, so that disagreements about whether information should be publicly released do not obstruct mutually beneficial exchanges. At the same time, however, this objective should not be allowed to delay the release of declassifiable information to the American public.
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A Review of the Department of Energy Classification Policy and Practice A category of information that deserves special review is UCNI. When the AEA was amended in 1981 to create UCNI, the primary purpose was to enhance DOE's ability to protect certain information about nuclear facilities, such as floor plans and safeguards, from potential terrorists. Over the years the uses of UCNI have broadened to controlling a wide range of proliferation-sensitive information, such as data with both technical and nuclear weapons-related applications. But the legislative base for UCNI was never updated to reflect this expanded scope. The Committee has received no persuasive justification for the continuation of UCNI as a special category and recommends that DOE undertake a thorough reexamination of whether there is a continuing need for these controls. If DOE concludes that information now encompassed by UCNI should continue to be protected under this scheme, it should prepare a clear and thorough justification for the proposed uses of UCNI and a comparison of alternative approaches to achieve the same objectives. When the fundamental review of classification policy is completed, DOE should indicate publicly which areas of information it believes no longer require protection as RD, even if it may not have interagency agreement to declassify all these areas. Its draft report on classification policy, "Public Guidelines to Department of Energy Classification of Information," should be released promptly and made readily accessible. Declassifying Documents Narrowing the information subject to classification is not in itself sufficient to achieve a policy of openness. DOE must find a means for reviewing documents to determine whether they contain only unclassified information and then release them to an often skeptical public. It also needs to find ways to minimize the creation of new classified documents and to reduce the effort required at some future date in declassifying the documents and their copies and derivatives. DOE has made efforts to declassify and publicly release many of the documents that have accumulated over the last 50 years. A massive task confronts the Department. Using DOE's current estimate that it holds approximately 280 million classified pages—and we consider this estimate very uncertain—then simply reviewing the current holdings using the
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A Review of the Department of Energy Classification Policy and Practice standard methods would require almost 9,000 person-years of effort. Better, faster, and less costly methods must be found. At present DOE is only beginning to assess the magnitude of the declassification task it faces. Since resources will be limited, priorities must be set to guide the effort. The process must be demand-driven, addressing the areas of greatest public concern first, particularly during the interim period while DOE's declassification policy is undergoing fundamental review and change. Once new DOE policy is established (with appropriate stakeholder involvement), a more regular process that gives the public a significant voice in setting priorities should be created. Strong local and regional inputs are essential. The Department needs to take other steps as well. The number of reviewers must be increased. DOE's plans for declassification should include planning for the preparation of a record index (with unclassified title, author, date, and document number) to be made available to the public and updated periodically. The Department needs to develop and evaluate more cost-effective declassification methods. Bulk declassification is not promising, since the methods suggested to date pose too great a risk that sensitive information could be released unwittingly. It may be possible, however, to establish methods for quickly screening large numbers of documents, sorted according to those most likely to contain sensitive information. Those least likely to contain such information could be given priority and could be subjected to less rigorous scrutiny. DOE also needs to investigate new methods, such as artificial intelligence, that offer promise of reducing the burden in the future. To minimize the generation of new classified documents, DOE needs to institute a number of new procedures. Classified or otherwise controlled information should be included in documents only if absolutely necessary. Strict guidance should be provided for use of derivative classification, which occurs when new documents make reference to material in classified documents, and must therefore be themselves classified. Portion marking of those areas containing classified information should be required, as well as segregating the classified portions whenever possible. For documents containing information of significant interest to the public, preparing unclassified versions could help where segregation is not practical. Documents should be coded and indexed so they can be
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A Review of the Department of Energy Classification Policy and Practice easily tracked, identified, and reviewed for declassification when guides change. Changes in policy and formal procedures will have only limited impact if significant effort is not devoted to changing the Department's traditional modes of operation, which place a strong emphasis on the costs of openness and little emphasis on the costs of secrecy in a democratic society. In the current system, incentives favor overclassification. The potentially irreversible consequences of a mistaken decision to declassify reinforce the tendency to overclassify. Measures to provide incentives for changing behavior, such as including measures of openness in performance evaluations for agency personnel and contractors, should be instituted. At the level of policy, DOE should require a substantive justification in terms of explicit criteria for keeping an area classified whenever it is subject to declassification review. Without such sustained effort, the inertia of traditional practice and the sheer size of the challenges that must be overcome to achieve meaningful change will needlessly delay reform efforts. Secretary O'Leary and DOE have undertaken important initiatives to achieve greater public access to information and greater departmental accountability for the information DOE controls. The Committee on Declassification of Information for the DOE Environmental Remediation and Related Programs commends these efforts. The Openness Initiative is an essential part of the U.S. government's reevaluation of the classification system in the aftermath of the Cold War. The availability of more information about past and current policies should help to restore public confidence in institutions and to foster a more informed public debate on essential policy choices.
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