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 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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A Review of the Department of Energy Classification Policy and Practice 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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