CHAPTER 3
BASIC PRINCIPLES AND PRIORITIES FOR CHANGE

In reviewing current Department of Energy (DOE) policy and practice, the Committee recommends that DOE's approach to reevaluation of the classification system be guided by certain basic principles and that it give priority to certain legislative and regulatory changes.

A. Basic Principles

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 sometimes necessary evil, to be used sparingly and only with strong justification. DOE's earlier study of classification policy, based on an extensive series of interviews throughout the DOE complex, concluded that "there is an almost universal belief that there is too much material to protect since some of it is now unnecessarily classified, or too highly classified. As a result, overclassification interferes with the protection of truly sensitive information."1 In creating the new Commission on Protecting and Reducing Government Secrecy, Congress reached a similar conclusion:

The burden of managing more than 6 million newly classified documents every year has led to tremendous administrative expense, reduced communication within the government and within the scientific community, reduced communication between the government and the people of the United States, and the

1  

Meridian Corporation, 1992, p. 86.



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A Review of the Department of Energy Classification Policy and Practice CHAPTER 3 BASIC PRINCIPLES AND PRIORITIES FOR CHANGE In reviewing current Department of Energy (DOE) policy and practice, the Committee recommends that DOE's approach to reevaluation of the classification system be guided by certain basic principles and that it give priority to certain legislative and regulatory changes. A. Basic Principles 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 sometimes necessary evil, to be used sparingly and only with strong justification. DOE's earlier study of classification policy, based on an extensive series of interviews throughout the DOE complex, concluded that "there is an almost universal belief that there is too much material to protect since some of it is now unnecessarily classified, or too highly classified. As a result, overclassification interferes with the protection of truly sensitive information."1 In creating the new Commission on Protecting and Reducing Government Secrecy, Congress reached a similar conclusion: The burden of managing more than 6 million newly classified documents every year has led to tremendous administrative expense, reduced communication within the government and within the scientific community, reduced communication between the government and the people of the United States, and the 1   Meridian Corporation, 1992, p. 86.

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A Review of the Department of Energy Classification Policy and Practice selective and unauthorized public disclosure of classified information. 2 Congress further concluded that "if a smaller amount of truly sensitive information were classified, the information could be held more securely" and therefore directed the Commission "to make recommendations to reduce the volume of information classified and thereby strengthen the protection of legitimately classified information."3 The Committee agrees with the philosophy urged by Congress. We recommend that the goal of DOE's current internal review should be to minimize to the maximum extent possible the subject matter areas that are classified. DOE should seek to construct "high fences around narrow areas"—that is, to maintain very stringent security around sharply defined and narrowly circumscribed areas, but to reduce or eliminate classification around areas of less sensitivity. 2. Shifting the burden of proof As mentioned in the previous chapter, the Atomic Energy Act (AEA) creates a presumption that restricted data (RD) are classified merely by virtue of their existence without anyone having to make a classification decision—they are "born classified." Without some affirmative act, all such information remains classified indefinitely. Many believe that since the enactment of the AEA in 1954, DOE and its predecessor agencies have used this authority to maintain secrecy about many of their activities, with little or no balancing of the harm that might result from disclosure with the detrimental costs—to health, safety, scientific development, and democratic decision making—that secrecy might create. The AEA explicitly addresses declassification. It gives DOE responsibility to review "from time to time" whether RD "can be published 2   Protection and Reduction of Government Secrecy Act, Pub. L. No. 103-236, § 902(3), 108 Stat. 525, 526 (1994). 3   Protection and Reduction of Government Secrecy Act, supra, §§ 902(5), and 903(1).

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A Review of the Department of Energy Classification Policy and Practice without undue risk to the common defense and security."4 The principle of disclosure within the AEA was largely confined to narrow areas during the Cold War; "undue risk" was assessed with a mind-set of absolute risk avoidance, where even the remotest threat had to be countered to the maximum extent. The requirement for declassification and disclosure now needs a broader interpretation. The Committee recommends that in its comprehensive review of the basis for classification of information DOE should shift the burden of proof from the proponents of declassification to the proponents of continued classification. The Department should be guided by the presumption that information should not be classified unless there is an identifiable reason why release of the information could damage national security or a reason for concluding that the costs of release outweigh the benefits. Such a step would effectively reverse the burden of proof associated with RD from presumptively classified to presumptively unclassified. The burden would then be on the classifier to justify the classification of the information, rather than on those proposing declassification.5 3. Balancing costs and risks Information should be classified only if the damage to the national security clearly outweighs both the public interest in disclosure of the information and the costs of attempting to prevent such disclosure. The Joint Security Commission noted, Security is a balance between opposing equities. The imperative to protect cannot automatically be allowed to 4   42 U.S.C. § 2162(a). Indeed, the Act encourages "dissemination of scientific and technical information relating to atomic energy . . . so as to provide that free interchange of ideas and criticism which is essential to scientific and industrial progress and public understanding and to enlarge the fund of technical information" (42 U.S.C. § 2161(b)). 5   The U.S. Congress Office of Technology Assessment report makes a similar recommendation (Office of Technology Assessment, 1993, p. 162).

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A Review of the Department of Energy Classification Policy and Practice outweigh mission requirements or the public's fundamental right-to-know and it must never obscure the understanding that an informed public is the foundation of a democratic government.6 The Commission recommended a change in philosophy from ''risk avoidance'' to "risk management."7 The Committee endorses these principles and urges the application of these concepts to information classified by DOE. In deciding whether a given subject area should be, or should remain, classified, the Department should require that the benefits of classification clearly outweigh the costs.8 Public acceptance of the approach would be enhanced if the balancing test were based on an agreed-upon set of criteria. Accordingly, the Committee believes that the criteria to be used in the declassification review should be developed with adequate opportunities for public input. DOE currently has a set of criteria for use in reviewing information for possible declassification (see Table 2). The criteria are described as "typical of those which must be evaluated in determining whether publication would present 'undue risk' to the common defense and security." These criteria provide a good start, but the Committee believes that they should be expanded to include explicitly the benefits of openness in enabling an informed public debate on public issues and, more generally, in enhancing the public's right to know what its government is doing. The Committee also believes that the public availability of information, which is included in DOE's current list of criteria, warrants careful consideration in declassification decisions. Some argue that there is no longer any point in maintaining the classification status of even 6   Joint Security Commission, 1994, p. 4. 7   Joint Security Commission, 1994, p. vi. 8   The Joint Security Commission also observed that "[i]t is important to consider the political, economic, and opportunity costs of classifying information, as well as the costs of failing to classify information" (Joint Security Commission, 1994, p. 10).

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A Review of the Department of Energy Classification Policy and Practice Table 2 Department of Energy Declassification Criteria 1. The benefit to be realized by the U.S. program from the declassification action, including any significant technology commercialization potential. 2. The extent to which the information would assist in the development of a nuclear weapon capability in nonnuclear weapon states or in improvements to the weapons in a nuclear weapon state. 3. The cost in terms of time and money of acquiring the information. 4. The extent to which the information would assist in the production of special nuclear material. 5. The published state of the art for the information in the U.S. and other countries. 6. The cost to the U.S. program of the continued classification of the information. 7. Any detrimental (or beneficial) effect release of the information might have on U.S. foreign relations, arms control negotiations, or treaty obligations. 8. Any other national security impact or significance (e.g., the extent to which the information would assist an adversary nation assess or counter U.S. capabilities and limitations). 9. Any impact on the credibility of the DOE classification program of the continued classification of the information. After U.S. Department of Energy Office of Declassification, 1994a, p. 7.

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A Review of the Department of Energy Classification Policy and Practice weapons-design information that has already been made available to the public. Others argue that information that is unclassified and might be "available" to sophisticated and experienced experts who already understand its significance may not be effectively available to less sophisticated potential proliferators, and that DOE should not publicize the existence or confirm the validity of any such information. In other words, even if material has appeared in the news media, declassification is not necessarily indicated since this would serve to validate such information. In the Committee's view, public availability of information should be an important consideration, although this factor should not be the prevailing or overriding criterion for declassification of that information. 4. Enhancing openness and public access Much can be done to avoid both the reality and the perception that classification authority is being used to withhold information that the public has a legitimate right to know. Classification policies that are understandable to external parties are more likely to be supported, or at least accepted, than those that are obscure or hidden. Furthermore, such understanding and support are more likely if outside parties are allowed to participate in an informed way in the development of those policies than if they are imposed without consultation. The Openness Initiative and the various reviews of declassification policy currently under way offer a number of opportunities for practical steps to demonstrate the Department's commitment to increased public access to information. DOE's goal should be "open policies openly arrived at." To the maximum extent possible, the debates about new information-control policies should be open to the public, with ample and credible opportunities for public inputs. DOE needs to provide for formal external input in the review process. To ensure that the costs and benefits of disclosure are given appropriate weight, DOE should seek formal input to the comprehensive review of classification policy by those who are affected by the decisions. This would be a direct demonstration of the new DOE spirit of openness and would increase the likelihood that the revised policy will be understood and accepted by those outside the security community. DOE

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A Review of the Department of Energy Classification Policy and Practice 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 current fundamental review. Later it could serve a variety of functions, such as making recommendations on priorities for document declassification efforts. The Advisory Board should report to the DOE official charged as the senior operating officer; at present this is the Under Secretary. Board members should have appropriate clearances to enable them to participate fully in discussions and reviews. Such a Board could provide a means for informed and direct discussions between DOE and knowledgeable outsiders on a more continuing and intensive basis than is possible with single public meetings. It would also facilitate direct discussion among the affected communities, which could provide useful insights about balancing different points of view in establishing the new policy.9 It could perform a variety of other functions as well, which are discussed in later chapters; for example, the Board could render nonbinding but public recommendations to DOE concerning the justification for classifying specific categories of information or for deciding not to declassify information in response to a request for declassification. Because it may take some time to establish the Board, the Department should seek in parallel suggestions from outside parties about the criteria for the declassification effort and areas of information that are candidates for declassification. This would extend to outside parties the current biennial call to DOE elements for proposals for declassification. One possible mechanism for this input would be publication of notices of proposed rulemaking, draft rules or guidance, and similar policy documents in the Federal Register for public comment. The Office of Declassification should be given responsibility for ensuring that these suggestions are given 9   The Joint Security Commission called for "a security advisory board composed of distinguished Americans who would provide a non-government and public interest perspective to security policy. The board would act as a barometer for the committee to ensure that security policy and implementation is consistent with the overall goals of the government, such as openness, cost effectiveness, and fairness" (Joint Security Commission, 1994, p. 129).

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A Review of the Department of Energy Classification Policy and Practice a fair evaluation in the review process, since uncleared outsiders may be at a serious disadvantage in supporting their comments under circumstances in which they do not have access to all the relevant information. When the joint review is completed, DOE should indicate publicly which areas of information it believes no longer require protection as RD. Even if the Department of Defense (DOD) or other agencies object to declassification on other grounds, public understanding would be enriched by knowing whether the basis for continued classification has to do with the military sensitivity of the information (that is, its military value to a potential adversary of the U.S. or its allies and friends) or with its possible value to those seeking to construct a nuclear weapon. DOE should promptly release a final version of its report entitled "Public Guidelines to Department of Energy Classification of Information." The Committee commends DOE's release of a draft of this report for public comment on June 27, 1994. The document should serve to relieve the concern that the public has been insufficiently informed about the boundaries between unclassified and classified information, and that in fact much of the knowledge of these boundaries is in itself classified. The Committee is gratified that the Secretary accepted the suggestion made at its February 1994 work session for preparation of this guide, although it understands that the final version has not yet been issued. Release of the draft document—and its finalization and amplification—should greatly facilitate informed public involvement in the classification policy review. This document should contain, for each area of information that remains classified, a rationale for that decision, including a discussion as to how the cost and benefit criteria were applied. This need not entail a great deal of additional work, since such a rationale should be prepared in any case as part of the review process. It should also serve to reduce the volume of information requested by the public, because it enables the information requester to determine what subject areas are classified. To further these objectives, the Department should make the draft and final versions available through OPENNET, the computer-based information network being set up by DOE to disseminate information about declassified documents.

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A Review of the Department of Energy Classification Policy and Practice B. Priorities for Legislative and Regulatory Changes DOE should move expeditiously with its effort to review and reform its classification system. The Secretary of Energy has unique authority with respect to the control of nuclear information, and should proceed to use that authority to reform the Department's policies and practices in this area. While DOE should aim toward compatibility with the evolving government-wide approach to classification, it should not slow its efforts to match the pace of what is necessarily a more cumbersome interagency review and negotiation process. DOE should also continue to take the lead in seeking declassification of information about nuclear weapons that it believes can be released without undue risk, but is subject to some degree of control by other agencies. 1. Amending the Atomic Energy Act (AEA) A thoughtful study has been prepared for DOE of possible legislative changes to the AEA,10 including a set of proposed amendments. While DOE notes that "it is the Department's classification and information control policies under the Act that influence the public's perception of the Department," it adds that "amendments would make the Department's commitment to openness in dealing with the public's interests a matter of law."11 The Committee supports a careful review of the AEA in light of the changing security needs of the nation. The Committee did not attempt to review and critique all the recommendations from the Meridian Corporation study for DOE on possible amendments to the AEA, and thus it does not offer firm conclusions about them. The Committee endorses one recommended amendment. DOE 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 10   Meridian Corporation, 1992. 11   U.S. Department of Energy, 1994, p. 8.

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A Review of the Department of Energy Classification Policy and Practice information. This category of information is called formerly restricted data (FRD). Unlike national security information (NSI), however, FRD cannot be transferred to any other country except as part of an agreement authorized as part of the AEA. 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, thus permitting elimination of the entire category of FRD.12 Elimination of the FRD category and transclassification to NSI would eliminate some international complications caused by the requirements for controls over FRD.13 It would also subject such information to Exec. Order No. 12,958 requirements for systematic and mandatory declassification reviews and possible automatic declassification after a specified period or event. Other proposed amendments to the AEA might be considered as an integral part of the broad two-year review of classification policy being undertaken by the Commission on Protection and Reduction of Government Secrecy created by Congress in 1994. For example, that Commission would be a proper venue for consideration of the fundamental question of whether there is any continuing justification for two separate and parallel classification systems, one for RD controlled pursuant to the AEA and one for NSI controlled pursuant to executive order. The systems are similar and the redundancy means additional cost. The separate systems contribute to inefficiency in interagency activities because documents classified under the aegis of DOE and those classified by other governmental departments are frequently difficult to exchange. Similarly, the clearance processes for personnel duplicate one another. Establishing a common classification system that applies across all agencies could facilitate more efficient and effective government. 12   These are data that DOE and DOD jointly determine relate primarily to military applications of nuclear weapons and that could be protected as defense information. The Classification Policy Study (Meridian Corporation, 1992) recommends amendment to the AEA to eliminate the category of FRD and to transfer military utilization information to NSI. 13   Meridian Corporation, 1992, p. 55.

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A Review of the Department of Energy Classification Policy and Practice We recognize that there are possible costs associated with a unified system. DOE's largely autonomous authority over RD enables the Secretary to develop policy without the burden of a cumbersome and slow interagency process. Preservation of the existing system thus may have short-term benefits in a time of rapidly evolving policy, but almost certainly there would be long-term gains from a uniform set of government policies and procedures. DOE should not wait for amendments to the AEA to implement desired openness policies that are allowed by the Act. The Department points to the major declassification actions already taken by the Secretary as evidence that significant steps can be taken without any legislation. 14 The Committee notes that some of the specific amendments proposed by DOE can, and should, be incorporated directly in DOE policy now. One important policy change would be establishing a systematic declassification review of existing documents containing RD, based on priorities reflecting public needs and interests, and on available resources.15 Exec. Order No. 12,958 requires that classified documents containing NSI be marked with a date or event for automatic declassification of the document or the category of exemption from declassification that applies to the document.16 Since much nuclear weapons information does not become less sensitive with the passage of time, there are no provisions for automatic declassification of documents containing RD and FRD. The AEA already requires such reviews of categories of information "from time to time."17 DOE's study of amendments to the AEA has proposed an amendment requiring such systematic reviews. DOE could adopt such a policy on its own, pending any amendment. Such reviews should be based on priorities reflecting public needs and interests and on available resources.18 14   Meridian Corporation, 1992, p. 8. 15   Meridian Corporation, 1992, p. 14. 16   Exec. Order No. 12,958, § 1.7(a)(4); exemptions are defined in § 1.6(d). 17   42 U.S.C. § 2162. 18   U.S. Department of Energy, 1994, p. 14.

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A Review of the Department of Energy Classification Policy and Practice A second important change relates to prohibition of abuses of classification or the control mechanisms established for RD and FRD. Exec. Order No. 12,958 already forbids use of classification as NSI "in order to conceal violations of law, inefficiency, or administrative error; prevent embarrassment to a person, organization, or agency; restrain competition; or prevent or delay the release of information that does not require protection in the interest of national security." 19 Essentially identical prohibitions are also contained in DOE's regulation concerning unclassified controlled nuclear information (UCNI).20 However, there are no such prohibitions with respect to RD and FRD in DOE's basic order governing classification.21 Such prohibitions should extend to RD and FRD.22 Further, it should be made clear that delay of declassification of RD or FRD for any of the prohibited reasons is also an abuse. The Committee perceives no reason why the Secretary cannot make these changes without seeking legislative action and recommends that they be made. 2. Using the regulatory process The Committee recommends that, where possible, DOE should develop and adopt new rules and procedures as regulations issued under the authority of the AEA and pursuant to the Administrative Procedures Act (APA). The APA has provisions for notice and public participation in many agency rulemaking situations. DOE already has 19   Exec. Order No. 12,958, § 1.8(a). 20   10 C.F.R. § 1017.5. 21   The Policy and Objectives section of Order DOE 5650.2 (Chapter III) (U.S. Department of Energy Office of Classification, 1991) does contain the prohibitions on misuse of NSI classification, but there are no equivalent requirements concerning RD and FRD. 22   The Department's study of amendments to the AEA proposes an amendment to prohibit the abuse of classification or UCNI controls (U.S. Department of Energy, 1994, p. 10-11).

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A Review of the Department of Energy Classification Policy and Practice promulgated regulations under the AEA dealing with NSI and UCNI,23 but has none dealing directly with RD. The embodiment of new classification policies in rules promulgated under the APA would have several significant advantages. First, such rules would largely replace the current system of DOE orders. Rules would provide more stability than DOE orders, since revisions require a new rulemaking and public explanation of the reasons for changes. While less permanent than legislation, such rules are not subject to the vagaries and delay associated with the legislative process; within the constraints of current law, DOE can proceed with rulemaking on its own initiative and schedule. Second, use of a rulemaking process is consistent with the goal of "open policies openly arrived at." A rulemaking provides a well-understood and accepted mechanism for formal public input, which should increase understanding, and potentially acceptance, of DOE classification control policies. It also increases accountability, since decisions must be explained and are subject to judicial review. Finally, rulemakings now could facilitate legislative revisions later. The rulemaking process would identify areas where amendments to AEA are require, rather than simply helpful clarifications. It could also develop a record of stakeholder views that could facilitate legislative changes when the time comes and language that could be incorporated into clarifying amendments. Specifically, DOE should promulgate a new regulation concerning classification and declassification of RD. A rulemaking to promulgate a regulation for RD could proceed in parallel with the fundamental review of classification policy, since the latter is focused more on what information should be classified than on the broader structure and procedures of the classification system. Such a rulemaking would also provide a good vehicle for public discussion of the recommendations of this report and those of the parallel studies now under way. 23   The UCNI regulation is found at 10 C.F.R. § 1017; the NSI regulation is found at 10 C.F.R. § 1045.

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