A Review of the Department of Energy Classification Policy and Practice (1995) / Chapter Skim
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2 A DESCRIPTION OF THE CURRENT SYSTEM
2 A DESCRIPTION OF THE CURRENT SYSTEM
Pages 23-38
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From page 23... ...
scientific, technological, or economic matters relating to the national security; fib United States Government programs for safeguarding nuclear materials or facilities; or (g) vuinerabilities or capabilities of systems, installations, projects or plans relating to the national security.)
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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 clef~nition is broad and is renderecl even more elastic by expansive definitions of "design" and of"research and development."4 Unlike LIST, RD is interpreted by DOE as "born ciassif~ecl" -- that is, to be considerec!
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§ 2162. 7 Some of the declassified information is still subject to control as unclassified controlled nuclear information (42 U.S.C.
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must jointly decide whether information in this category can be publicly released without "unreasonable risk to the common defense and security." 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 aclequately protected as national security information. i2 Such information, called formerly restricted data (FRD)
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DOE's ability to declassify information relevant to policy debates about nuclear weapons is thus clependent 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 Concurrence for Action 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 orW number DOE DOD Device nickname DOE None SOURCE: Information provided by R
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From page 28... ...
This process has led to the recent cleciassification 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 deciassified.~3 While DOE has now declassified the total list of past nuclear test explosions, no agreement has been reached with DOD on the clecIassification of yields of post-1962 tests.
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From page 29... ...
Article ~ 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 crevices, or control over such weapons or explosive crevices. ~7 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.
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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 cIassifiecl documents may contain documents that were properly classified at the time of creation, but that are not properly classified under current policy.
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records or information compiled for law enforcement purposes, (8) agency reports concerning regulation of financial institutions, and (9)
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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 DOE CLASSIFICATIONPOLICYAND PRACTICE If the latter, DOE must coordinate its response with that 24 10 C.F.R.
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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 midFebruary 1995 there were 727 FOlA requests pending at heaclquarters.32 29 10 C.F.R.
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12,958 additionally directs agencies to develop procedures to conduct mandatory declassification review, including an appeals process, and requires agencies to declassify items of NST that no longer neec! to be kept secret.35 DOE had issued separate regulations implementing the previous executive order (Exec.
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States, in coordination with agencies, to issue guidelines implementing the FRA's objectives for record management, which include "accurate ant} complete documentation ofthe policies and transactions of the Federal Government" and "judicious preservation and disposal of recorcIs."4~ 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 heat} has a responsibility to "make and preserve records containing adequate ant! 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 additions the agency head must set up an agency-wide program for effective records management ant} has the cluty "to establish safeguards against the removal or loss of records he determines to be necessary and 39 44 U.S.C.
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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 Fecleral 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 noncIassif~ed information.
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* In sum, the legal scheme imposes multiple, overlapping, and sometimes contradictory obligations governing the classification, retention, and release of documents.
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