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FAS Note: For related correspondence, see the July 14, 1998 letter from Archivist John Carlin and the July 28 letter from Senators Kyl, Shelby and Smith.


Department of Energy
Washington, DC 20585

July 24, 1998

Mr. James C. Murr
Assistant Director for Legislative Reference
Executive Office of the President
Office of Management and Budget
Washington, D.C. 20503-0001

Dear Mr. Murr:

The Department of Energy (DOE) understands from your staff that the Administration has decided to oppose section 3146 of the Senate version of H.R. 3616, the National Defense Authorization Act for Fiscal Year 1999, which concerns the inspection of permanent records prior to declassification. DOE appreciates these concerns and rather than expressing outright opposition to the section, recommends that we be permitted to submit the enclosed amendment for the conferees consideration. We believe that it addresses both the concerns expressed by the National Archives and Records Administration (NARA) and DOE's concerns about the critical national security issues related to the possible compromise of classified Restricted Data and Formerly Restricted Data (RD/FRD). Under the Atomic Energy Act of 1954, DOE is charged with the responsibility for safeguarding RD/FRD, which includes the Nation's most sensitive nuclear secrets. As a result, we strongly believe that the DOE position should be adopted as the executive branch's position on this issue.

This amendment addresses a major problem that has arisen because of a conflict with the other Government-wide classification program, that concerning National Security Information (NSI) protected under Executive order. The Information Security Oversight Office (ISOO) within the NARA implements the NSI program and does not support the original version of the proposed amendment. The DOE agrees with NARA that the original version of the amendment would have a negative effect on the NSI declassification program and is recommending the amendment to address NARA's concerns. However, if this problem is not corrected, RD/FRD will be compromised that could be of significant assistance to a potential nuclear proliferant.

The DOE concern is that highly sensitive RD/FRD has been found embedded in documents in file series subject to declassification and released to the public under Executive Order 12958. Obviously, the intent of the Executive order was not to compromise our most sensitive nuclear secrets. It is equally clear that this problem poses a great national security risk. We know this is true because DOE has surveyed file series at selected other Government agencies and Presidential libraries. These surveys of file series supposedly containing only NSI found not only unmarked RD/FRD and RD/FRD mismarked as NSI, but even correctly marked RD/FRD. Some of these problems were found even when file series had supposedly been reviewed by other agencies for declassification. Other file series scheduled for bulk declassification (i.e., no review even planned) contained RD. According to a recent Brookings study, the United States has spent trillions of dollars on its nuclear weapons programs. The United States is clearly the leader in nuclear weapons technology and the rest of the world knows it, including the intelligence agencies of proliferant countries. This problem is aggravated by those who delight in revealing the classification errors of the Government in nuclear weapons technology and rapidly spreading their findings on the Internet.

Some of the compromised information found in these file series involved design information of special value to proliferants seeking to weaponize their nuclear devices, such as India and Pakistan. The last thing the U.S. Government should do is make it easier for potential nuclear weapons protagonists to have access to information to design their delivery systems and nuclear weapons in order to attack each other.

In the past, we have made sure both NARA and the ISOO were aware of this problem, but no specific steps, such as those that are required by section 3146, were taken to ensure that RD/FRD are adequately protected. Partly as a result of these circumstances, we have found improperly declassified information on the Internet. We have no way of estimating how much information of great potential value to proliferants is now on the open shelves or scheduled to be placed there. It is the responsibility of DOE under the Atomic Energy Act to protect this information, and we think that the risk is too high for the Administration not to do its best in cooperation with Congress to achieve that end.

DOE has been in the forefront in implementing the openness provisions of Executive Order 12958 and fully supports efforts to release all the unnecessarily classified documents. Unquestionably, this Executive order has provided agencies and stakeholders with a tremendous opportunity to learn more about their Government and reduce unnecessarily classified information, and we fully support its goals to maximize the amount of information that is provided to the public. However, section 1 of the Atomic Energy Act requires DOE to fulfill its nuclear responsibilities "...subject at all times to the paramount objective of making the maximum contribution to the common defense and security."

With regard to the specific section in question, we believe the enclosed proposed amendment is a reasonable approach for addressing the concerns of NARA and other agencies. Although RD/FRD does occur in peculiar places due to years of poor records management and inattention to the differences between RD and NSI, there are identifiable file series that are highly unlikely to contain RD/FRD. The amendment makes it possible for other agencies to submit for DOE's approval a listing of those file series they believe can be released without visual inspection for RD/FRD. This addition would impose a positive requirement on DOE to identify those file series highly unlikely to contain RD/FRD in order to ensure that RD/FRD is not at risk. To minimize any delay in releasing documents to the public, the DOE would have only 90 days to approve or disapprove requests to exempt individual file series from the visual inspection requirement. Those file series likely to contain RD/FRD must still be managed under the original provisions of the amendment. As a result of the amendment, large numbers of Government records will still be able to be rapidly declassified and released to the public while maintaining the national security and reducing the likelihood of nuclear proliferation.

Sincerely,

Kenneth E. Baker
Principal Deputy Director
Office of Nonproliferation and National Security

Enclosure


DOE PROPOSED SUBSTITUTE AMENDMENT TO SECTION 3146

Section 3155 of the National Defense Authorization Act for Fiscal Year 1996 (Pub.L. 104-106) is amended by:

(1) redesignating subsection (c) as subsection (d); and

(2) inserting after subsection (b) the following new subsection (c):

"(c) The Secretary of Energy, in consultation with the National Archives and Records Administration and the Department of Defense, shall establish a system for properly handling all permanently valuable Federal records series over 25 years old potentially containing Restricted Data and Formerly Restricted Data. Such a system shall be based on a risk management approach that includes an initial survey by all Executive agencies to identify those records series that do and do not potentially contain Restricted Data or Formerly Restricted Data. All records in records series identified as potentially containing Restricted Data or Formerly Restricted Data shall be visually inspected by the agencies to ascertain whether they contain records with Restricted Data or Formerly Restricted Data markings. Records series containing records with Restricted Data or Formerly Restricted Data markings shall be set aside pending the completion of a review by the Department of Energy.".




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