CHAPTER 2
A DESCRIPTION OF THE CURRENT SYSTEM

A complex matrix of statutes, regulations, and procedures governs the control of classified information, public access to governmental information, and the maintenance of governmental records. This matrix defines the context for the Department of Energy (DOE) classification system. The following overview describes the legal foundation for the system.

A. Classification Controls

1. Two Systems

Documents are classified for national security reasons under two different systems. Most of the classified information held by the federal government is classified, pursuant to Exec. Order No. 12,958, as national security information (NSI). An affirmative act by a government official is required to designate information as NSI. Categories of information that are eligible for classification as NSI under the current executive order include (a) military plans, weapons, or operations; (b) foreign government information; (c) intelligence activities (including special activities), intelligence sources or methods, or cryptology; (d) foreign relations or foreign activities of the United States, including confidential sources; (e) scientific, technological, or economic matters relating to the national security; (f) United States Government programs for safeguarding nuclear materials or facilities; or (g) vulnerabilities' or capabilities of systems, installations, projects or plans relating to the national security. 1

1  

Exec. Order No. 12,958, § 1.5.



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A Review of the Department of Energy Classification Policy and Practice CHAPTER 2 A DESCRIPTION OF THE CURRENT SYSTEM A complex matrix of statutes, regulations, and procedures governs the control of classified information, public access to governmental information, and the maintenance of governmental records. This matrix defines the context for the Department of Energy (DOE) classification system. The following overview describes the legal foundation for the system. A. Classification Controls 1. Two Systems Documents are classified for national security reasons under two different systems. Most of the classified information held by the federal government is classified, pursuant to Exec. Order No. 12,958, as national security information (NSI). An affirmative act by a government official is required to designate information as NSI. Categories of information that are eligible for classification as NSI under the current executive order include (a) military plans, weapons, or operations; (b) foreign government information; (c) intelligence activities (including special activities), intelligence sources or methods, or cryptology; (d) foreign relations or foreign activities of the United States, including confidential sources; (e) scientific, technological, or economic matters relating to the national security; (f) United States Government programs for safeguarding nuclear materials or facilities; or (g) vulnerabilities' or capabilities of systems, installations, projects or plans relating to the national security. 1 1   Exec. Order No. 12,958, § 1.5.

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A Review of the Department of Energy Classification Policy and Practice Under the second system, certain nuclear-related information, called restricted data (RD), is classified according to a system created by the Atomic Energy Act of 1954 (AEA).2 The AEA provides: The term ''Restricted Data'' means all data concerning (1) design, manufacture, or utilization of atomic weapons; (2) the production of special nuclear material; or (3) the use of special nuclear material in the production of energy, but shall not include data declassified or removed from the Restricted Data category pursuant to section 2162 of this title.3 The scope of the definition is broad and is rendered even more elastic by expansive definitions of "design" and of "research and development." 4 Unlike NSI, RD is interpreted by DOE as "born classified"—that is, to be considered a protected secret upon coming into existence without any affirmative act or decision by an official or, indeed, any involvement by government at all.5 The AEA authorizes sealing off an entire area of scientific and engineering knowledge from public scrutiny. 2   42 U. S.C. §§ 2011 et seq. 3   42 U.S.C. § 2014(y). 4   The AEA provides that "[t]he term 'design' means (1) specifications, plans, drawings, blueprints, and other items of the like nature; (2) the information contained therein; or (3) the research and development data pertinent to the information contained therein" (42 U.S.C. § 2014(i)). "Research and development" are defined as "(1) theoretical analysis, exploration, or experimentation; or (2) the extension of investigative findings and theories of a scientific or technical nature into practical application for experimental and demonstration purposes, including the experimental production and testing of models, devices, equipment, materials, and processes" (42 U.S.C. § 2014(x)). Neither definition is readily confined. 5   Hewlett, 1981; Green, 1981.

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A Review of the Department of Energy Classification Policy and Practice The AEA has provisions authorizing declassification of information falling within the scope of the definition.6 Over the years, RD relating to many once-classified areas has been declassified, largely in order to facilitate commercial applications.7 As a result, information relating to civil power reactors and nuclear fuel reprocessing is not classified. The remaining areas of national defense-related nuclear information that contain RD pertain to (1) nuclear weapon design; (2) nuclear material and nuclear weapon production; (3) certain theoretical aspects of inertial confinement fusion; (4) military reactors (production and submarine reactors); (5) isotope separation; and (6) directed nuclear energy systems.8 Only those with security clearances are given access to either NSI or RD.9 The levels of classification in the two regimes are identical—Top Secret, Secret, and Confidential—and only individuals with the requisite level of clearance can obtain access. Detailed requirements for the safeguarding and control of classified information are keyed to the level and type of classification. Having a clearance, however, is not sufficient to gain access to classified information. An individual must also be shown to have a "need to know" the information in question. There is a formal system for controlling access to certain areas of information on a need-to-know basis. This additional layer of categories and controls adds to the complexity of the system.10 6   42 U.S.C. § 2162. 7   Some of the declassified information is still subject to control as unclassified controlled nuclear information (42 U.S.C. § 2166). 8   Meridian Corporation, 1992, p. 23. 9   Access to NSI is generally limited to those for whom access is required "in order to perform or assist in a lawful and authorized governmental function" [Exec. Order No. 12,958, § 4.1(c)]. With appropriate protection against general disclosure, the access limitations may be waived for historical researchers [Exec. Order No. 12,958, § 4.5(a)(1)]. 10   Meridian Corporation, 1992, p. 87.

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A Review of the Department of Energy Classification Policy and Practice This report deals primarily with information that is now or was once classified as RD. Because of DOE's special mission relating to development, testing, and production of nuclear weapons, many DOE facilities, including the complex of national laboratories and other nuclear weapons-related facilities, have extensive files dating from the beginning of the atomic age that contain RD. 2. Policy Coordination The existence of different legal regimes covering classified information has important practical implications for DOE. On the one hand, the existence of 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 the other. Declassification of NSI is not subject to the Secretary's control, but is possible only by agreement with other agencies under terms defined by Exec. Order No. 12,958. On the other hand, the Secretary has primary authority to set policy for declassification of most RD. The principal exception to the Secretary's control over RD concerns information related primarily to the utilization of nuclear weapons. The AEA provides that DOE and the Department of Defense (DOD) must jointly decide whether information in this category can be publicly released without "unreasonable risk to the common defense and security." 11 DOE also shares with 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.12 Such information, called formerly restricted data (FRD), cannot be transferred to any other country while it remains classified as NSI except as part of an agreement authorized by the AEA. Some of the information sought by those interested in participating in policy debates about nuclear weapons, nonproliferation, dismantlement, and materials disposition fall into the category of NSI, for which 11   42 U.S.C. § 2162. 12   42 U.S.C. § 2162.

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A Review of the Department of Energy Classification Policy and Practice concurrence on declassification from other agencies may be necessary (see Table 1). The DOD, Department of State, Arms Control and Disarmament Agency, Central Intelligence Agency, National Security Council, and Joint Chiefs of Staff all have interests in how such data are handled. DOE's ability to declassify information relevant to policy debates about nuclear weapons is thus dependent in part on the willingness of other agencies with different priorities to cooperate in a timely manner. Table 1 Agency Responsibility/Concurrence to Declassify Various Categories of Nuclear Weapons Information Information Category Responsibility for Action Concurrence Needed Nuclear weapons in active use DOD DOE Inactive stockpile DOD DOE Warhead modifications and retirements DOD None Weapons to be disassembled, already disassembled, and disassembly rates DOD DOE Fissile material stockpile In weapons DOE None Available for use in weapons DOE None Unavailable for weapons DOE None Historical data on fissile material production DOE None Weapon test name associated with Yield DOE DOD Mark or W number DOE DOD Device nickname DOE None   SOURCE: Information provided by R. Lyons, DOE Office of Declassification, September 7, 1994.

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A Review of the Department of Energy Classification Policy and Practice The National Security Council has designated DOE as the lead agency for an interagency process to formulate declassification policies and specific actions on nuclear weapons-related matters. Disagreements are resolved by the Nuclear Weapons Council, which includes the Under Secretary of DOE and the Deputy Secretary of Defense. This process has led to the recent declassification of some weapons-related information, but has revealed significant differences between the agencies. For example, the 1992 DOE-sponsored study of classification policy recommended that data concerning the occurrence of all nuclear tests and their yields should be declassified.13 While DOE has now declassified the total list of past nuclear test explosions, no agreement has been reached with DOD on the declassification of yields of post-1962 tests. Similarly, the declassification of information concerning verification activities related to nuclear tests and production activities of fissionable material has been impeded by the need for interagency coordination. RD and NSI are not the only classes of information that are subject to control by DOE. The Department also exercises control over unclassified information in a number of areas. These include unclassified controlled nuclear information (UCNI), naval nuclear propulsion information (NNPI),14 export control information (ECI),15 and official use 13   Meridian Corporation, 1992, p. 84. 14   Order DOE 5630.8A (U.S. Department of Energy Office of Nuclear Reactors, 1990) defines any information with an identifiable association with naval nuclear propulsion as NNPI. NNPI may be either classified or unclassified information. A small subset of NNPI—specifically, all unclassified information related to the reactor plants of naval nuclear propulsion—is also classified as UCNI. The order allows for dissemination of NNPI only on a highly restrictive need-to-know basis, and provides special procedures for marking, handling, and access. These requirements may be in addition to those imposed by the UCNI rules. However, the order contains no sanctions other than those otherwise available for protection of NSI, RD, or UCNI. 15   The DOE Office of General Counsel holds that DOE does not have power to control ECI generated within the DOE complex, although such information would be subject to control if generated privately. DOE has developed voluntary guidelines for control by the laboratories, but they are controversial (Meridian

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A Review of the Department of Energy Classification Policy and Practice only information.16 This report will focus on only one of these categories—UCNI—which is the most far-reaching. As will be discussed, UCNI encompasses unclassified information that relates to the physical security of nuclear facilities and, as currently interpreted, other information relating to technology that could be useful to a potential proliferator. Finally, the United States has certain obligations to protect information as a result of its international treaty commitments. Article I of the Treaty on the Non-Proliferation of Nuclear Weapons provides that Each nuclear-weapon State Party to the Treaty undertakes not to transfer to any recipient whatsoever nuclear weapons or other nuclear explosive devices or control over such weapons or explosive devices directly, or indirectly; and not in any way to assist, encourage, or induce any non-nuclear weapon State to manufacture or otherwise acquire nuclear weapons or other nuclear explosive devices, or control over such weapons or explosive devices.17 The nuclear weapon state parties to the treaty—the United States, Russia, China, France, and the United Kingdom—are implicitly prohibited from disseminating information or data concerning the design and construction of nuclear weapons. The treaty obligation thus bears on declassification actions relating to nuclear weapons, with the same intent as domestic U.S. legislation designed to protect nuclear information.     Corporation, 1992, p. 67-68). 16   This is sensitive information, which might be exempt from the Freedom of Information Act (FOIA) under certain circumstances. Rules exist for several DOE programs, but not a DOE-wide approach. The Classification Policy Study (Meridian Corporation, 1992, p. 67-68) recommends that one should be adopted. 17   Treaty on the Non-Proliferation of Nuclear Weapons, 21 U.S.T. 483, March 5, 1970.

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A Review of the Department of Energy Classification Policy and Practice B. The Operation of the Classification System Approximately 5,000 individuals in the Department and its contractors have formal authority to determine whether a document should be classified and, if so, at what level. These decisions are governed by a detailed Classification Guide that sets out criteria as to whether a given fact is classified and, if so, its level of classification. Some, but not all, of the volumes in the Classification Guide are themselves classified. Some DOE facilities have developed derivative classification guidance that, although based on the Classification Guide, provides information on classification that is particularly relevant to the activities of each facility. There are some 880 detailed classification guides at DOE headquarters and field offices.18 We understand that these derivative guides are reviewed by the Office of Declassification to ensure consistency with overall Department classification policy. Because the scope of the information subject to classification has changed over the years and the markings on existing documents are not automatically or periodically revised, the current inventory of classified documents may contain documents that were properly classified at the time of creation, but that are not properly classified under current policy. All such documents are treated as classified until an affirmative decision is made to modify their classification status. There is no comprehensive program for declassification or review of classified documents required by law, except for those considered in response to Freedom of Information Act (FOIA) requests. 18   In practice, the experts in a given field have a working knowledge of the aspects of their work that are classified. Such individuals no doubt mark a document as classified without detailed review of the Classification Guide or the derivative guides.

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A Review of the Department of Energy Classification Policy and Practice C. The Freedom of Information Act The principal means for public access to public records is through FOIA.19 FOIA specifies, as a basic right, public access to the records of all federal agencies, but provides for categories of information that are exempt from disclosure. FOIA lists nine exemptions, but only two—one protecting NSI (Item 1 in footnote 20) and another protecting RD and UCNI (Item 3 in footnote 20)—are relevant to the work of the Committee.20 When "any person" makes a request for records that "(A) reasonably describes such records and (B) is made in accordance with published rules," the agency must make the records ''promptly available."21 DOE has developed its own procedures for implementing FOIA. Requests must be in writing and must reasonably describe the record sought. 22 Categorical requests—requests for all information in a "reasonably specific and well-defined category''—are permitted and handled similarly to other requests.23 When a FOIA request involves records or information that originated in another agency, DOE must refer the request to the originating agency or get approval from the originating agency to make the 19   5 U.S.C. § 552. 20   The exemptions exist for (1) secret national security information, (2) internal personnel rules and practices of the agency, (3) matters specifically exempted from disclosure by statute, (4) trade secrets, (5) interagency or intra-agency memoranda that would be protected in litigation involving the agency, (6) personnel and medical files affecting personal privacy, (7) records or information compiled for law enforcement purposes, (8) agency reports concerning regulation of financial institutions, and (9) matters concerning geological information [5 U.S.C. §§ 552(b)(1-9)(1988)]. The Supreme Court has stated that "[t]hese exemptions are specifically made exclusive'. . . and must be narrowly construed"' [Department of the Air Force v. Rose, 425 U.S. 352, 361 (1976), quoting EPA v. Mink, 410 U.S. 73, 79 (1973)]. 21   5 U.S.C. § 552(a)(3). 22   10 C.F.R. § 1004.4(b). 23   10 C.F.R. § 1004.4(c).

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A Review of the Department of Energy Classification Policy and Practice decision. If the latter, DOE must coordinate its response with that agency.24 In response to a proper request, the Freedom of Information Officer sends a copy of the request to the Authorizing Official (the official having custody or responsibility for the requested records).25 DOE treats requests for classified records similarly to requests for nonclassified information, but requires that the Director of Classification (now Declassification) receive notification of any request for classified information, advise the Authorizing Official processing the request, and concur in the determination.26 When a request, or part of a request, is denied because the withheld information is classified, the report of denial must list the name of the Director of Classification as the Denying Official for the withheld classified matter. Each notified Authorizing Official must prepare a written response within 10 working days of receipt of a request, except in the case of "unusual circumstances," which may include the need to search for and retrieve records from other DOE offices, the need to examine a large volume of requested materials, or the need to consult with another agency that has "substantial interest in the determination of the request."27 The agency and the requester may agree to extend the period for initial DOE response to an FOIA request, but if DOE has not made a decision on a request by the end of the 10-day period or the extended period, the requester may file for review of his or her claim in federal district court.28 24   10 C.F.R. § 1004.4(f). 25   10 C.F.R. §§ 1004.2, 1004.5(a)-(c). The regulations designate Freedom of Information Officers at eighteen regional DOE offices to oversee the processing of FOIA requests. 26   10 C.F.R. §§ 1004.6(c)-(d). 27   10 C.F.R. § 1004.5(d). 28   10 C.F.R. §§ 1004.5(d)(4)-(5).

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A Review of the Department of Energy Classification Policy and Practice When an FOIA request is approved, the records "will be made available promptly."29 When a request is denied, the requester must be provided with a written explanation, including reasons for denial, the persons responsible for the denial, information about whether the requested information contains nonexempt material that can be segregated, and notice of the availability of appeal challenging either the adequacy of the search or the decision to deny the request.30 A person whose FOIA request has been denied may appeal to the Office of Hearings and Appeals (OHA) within 30 calendar days of notice of denial.31 As of June 1994, DOE had 812 open FOIA requests at DOE headquarters and another 450 requests in the field. Of these, 82 had been initiated in the 1980s; at her press conference on June 27, 1994, the Secretary committed to closing these requests by the end of that year. By the end of 1994, only two requests remained open. (It should be noted that closure of an FOIA request does not necessarily mean that the document requested was found and supplied.) During the last seven months of 1994, DOE headquarters closed 520 requests compared with 236 over the same period in 1993. Perhaps as a result of the Openness Initiative, FOIA requests more than doubled from July to December 1994, so that in mid-February 1995 there were 727 FOIA requests pending at headquarters.32 29   10 C.F.R. § 1004.7(a). 30   10 C.F.R. § 1004.7(b). 31   10 C.F.R. § 1004.8(a). The appeal must be in writing and must discuss the legal bases for the appeal [10 C.F.R. § 1004.8(b)]. The OHA must act on the appeal within 20 working days, except in "unusual circumstances" similar to those outlined above [10 C.F.R. § 1004.8(b)]. Failure to issue a decision within the statutory period constitutes an exhaustion of administrative remedies, allowing the requester to seek review in a district court (10 C.F.R. § 1004). 32   R. Lyons, DOE Office of Declassification, personal communication, February 22, 1995.

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A Review of the Department of Energy Classification Policy and Practice D. Mandatory Review for Declassification Section 3.6 of Exec. Order No. 12,958 requires that, in response to a proper request, an agency shall conduct a mandatory review for declassification of NSI. (The provision does not apply to RD, and there is no comparable provision in statute or regulation for an externally initiated mandatory declassification review of RD.) The request must be made by a U.S. citizen or a permanent resident alien, a federal agency, or a state or local government.33 The request must describe the subject matter "with sufficient specificity to enable the agency to locate it with a reasonable amount of effort."34 Exec. Order No. 12,958 additionally directs agencies to develop procedures to conduct mandatory declassification review, including an appeals process, and requires agencies to declassify items of NSI that no longer need to be kept secret.35 DOE had issued separate regulations implementing the previous executive order (Exec. Order No. 12,356).36 These guidelines give DOE's Assistant Secretary for Defense Programs authority to make final determinations on appeals of denied requests for NSI under the Mandatory Review for Declassification provision.37 The regulations require that DOE, in answering a valid request for declassification review, coordinate its review with any other agency to which the NSI is relevant.38 33   This category of eligible requesters is narrower than that in the FOIA, which allows "any person" to make a request (Adler, 1993). 34   Exec. Order No. 12,958, § 3.6(a)(1). 35   Exec. Order No. 12,958, §§ 3.6(c)-(d), 5.4. 36   10 C.F.R. § 1045. 37   10 C.F.R. § 1045.4(a). 38   10 C.F.R. § 1045.6(b)(2)(iv).

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A Review of the Department of Energy Classification Policy and Practice E. Records Retention and Destruction Because of the large estimated volume of classified materials, the Committee also reviewed the requirements of the Federal Records Act (FRA).39 The FRA governs the creation and treatment of all federal agency records. It includes the Records Disposal Act (RDA), which governs the disposal and destruction of federal records.40 The FRA directs the Administrator of General Services and the Archivist of the United States, in coordination with agencies, to issue guidelines implementing the FRA's objectives for record management, which include "[a]ccurate and complete documentation of the policies and transactions of the Federal Government" and "[j]udicious preservation and disposal of records."41 The Administrator and Archivist have general authority to examine agency records, except when records have restricted status "by law or for reasons of national security or the public interest." In such cases, inspection is subject to approval by the agency head or the President.42 Each agency head has a responsibility to "make and preserve records containing adequate and proper documentation of the organization, functions, policies, decisions, procedures, and essential transactions of the agency. . ."43 Thus the FRA imposes an affirmative duty on agencies to create records.44 In addition, the agency head must set up an agency-wide program for effective records management and has the duty "to establish safeguards against the removal or loss of records he determines to be necessary and 39   44 U.S.C. §§ 2901 et seq. 40   44 U.S.C. § 3301. 41   44 U.S.C. §§ 2902(1)&(5), 2904. 42   44 U.S.C. § 2906(a)(2). 43   44 U.S.C. § 3101. 44   Kissinger v. Reporters Committee for Freedom of the Press, 445 U.S. 136, 152 (1980).

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A Review of the Department of Energy Classification Policy and Practice required by regulations of the Archivist."45 The agency head must notify the Archivist and initiate an administrative action through the Attorney General upon learning of "any actual, impending or threatened unlawful removal, defacing, alteration, or destruction of records" in agency custody.46 As part of the FRA, the RDA sets up exclusive procedures defining how and when agency records may be destroyed.47 "If a document qualifies as a record, the FRA prohibits an agency from discarding it by fiat. . . [T]he FRA requires the agency to procure the approval of the Archivist before disposing of any record."48 It directs the Archivist to promulgate regulations instructing agencies how to prepare schedules and lists of records for disposal. If, after examination, the Archivist determines that the records do not have "sufficient administrative, legal, research, or other value to warrant their continued preservation by the Government," the Archivist may, after publication of notice in the Federal Register and an opportunity for public comment, authorize disposal of the records by the agency.49 Nothing in the definition or the Act provides for special treatment of records containing RD or NSI. Thus, handling and destruction of such material is governed exclusively by the same language as that for nonclassified information. Indeed, the regulations implementing Exec. Order No. 12,356 (which presumably will also guide the implementation of Exec. Order No. 12,958) state that "[c]lassified information no longer needed in current working files or for reference or record purposes shall be 45   44 U.S.C. §§ 3102, 3105. 46   44 U.S.C. § 3106. 47   44 U.S.C. § 3314. 48   Armstrong v. Executive Office of the President, 1 F.3d 1274, 1278-79 (D.C. Cir. 1993) (internal citations omitted). 49   44 U.S.C. § 3303a(a). The RDA has a provision for destroying records in an emergency (44 U.S.C. § 3310).

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A Review of the Department of Energy Classification Policy and Practice processed for appropriate disposition in accordance with [the FRA]." 50 If the Archivist approves the destruction of classified information, the agency "shall" destroy the records in accordance with procedures prescribed by the agency head. DOE has issued regulations for destruction of records that contain NSI and/or RD.51 ******** In sum, the legal scheme imposes multiple, overlapping, and sometimes contradictory obligations governing the classification, retention, and release of documents. It is within this legal tangle that policy relating to classified information is currently being developed. The Committee hopes that both the government-wide reviews of the classification system and DOE's own efforts to enhance public access to information will result in significant rationalization and simplication of the legal structure. 50   32 C.F.R. § 2001.48. 51   10 C.F.R. § 1016.37.

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