Department of EnergySteven Aftergood
Washington, DC 20585
April 10, 2002
Federation of American Scientists
1717 K Street NW
Washington D.C. 20036
Re: FOIA Request No. F2001-000219, F2001-00299Dear Mr. Aftergood:
This is in final response to the request for information that you sent to the Department of Energy (DOE) under the Freedom of Information Act (FOIA), 5 U.S.C. 552. You asked for a copy of a DOE report entitled "Highly Enriched Uranium - The First 50 Years."
The Office of the Assistant Secretary for Defense Programs conducted a search of its files and found a report entitled "Highly Enriched Uranium: Striking a Balance" that is responsive to the request. Subsequently, control of the document was transferred to the Office of Security Affairs.
The responsive document is a report on the production, acquisition, and utilization activities of highly enriched uranium by the United States from 1945 through September 30, 1996. It is a pre-decisional document that is exempt from disclosure pursuant to Exemption 5 of the FOIA, 5 U.S.C. 552(b)(5).
Exemption 5 protects from mandatory disclosure "inter-agency or intra-agency memorandums or letters which would not be available by law to a party other than an agency in litigation with the agency." Exemption 5 incorporates the deliberative process privilege that protects advice, recommendations, and opinions that are pre-decisional and part of the decision-making process of the agency. Documents that are commonly encompassed by the deliberative process privilege include "advisory opinions, recommendations, and deliberations comprising part of a process by which government decisions and policies are formulated, the release of which would likely "stifle honest and frank communication within the agency."
The requested document is a draft record that reflects the tentative views of the authors. The opinions contained in the document are recommendatory and were subject to further agency review. Moreover, the report has never been issued by the Department and may not represent the final agency position on the matters that it addresses. Thus, the opinions expressed therein are pre-decisional and exempt from disclosure under Exemption 5 of the FOIA.
Pursuant to 10 CFR 104.7(b)(2), Joseph S. Mahaley, Director, Office of Security and Emergency Operations, is responsible for the determination to withhold the document.
To the extent permitted by law, the DOE, pursuant to Title 10, Code of Federal Regulations (CFR), § 1004.1, will make available records that it is authorized to withhold under the FOIA, when it determines that such disclosure is in the public interest. We have determined that the disclosure of the document withheld under Exemption 5 would not be in the public interest.
In applying 10 CFR 1004.1 to the document in question, we balanced the public interest in disclosure against the adverse effect on the quality of agency decisions if frank, written discussion of policy matters were inhibited by the knowledge that the content of such discussion might be make public. We concluded that the public interest in disclosure did not outweigh the adverse impact of disclosure. Protecting the integrity of governmental deliberations ensures the free flow of frank and candid advice and recommendations to the decision maker and thereby the quality of final decisions is enhanced.
In addition, we have determined that there is no releasable information that can be segregated and provided.
You may challenge this determination to withhold information by submitting a written appeal to the Director, Office of Hearings and Appeals, at the U.S. Department of Energy, 1000 Independence Avenue, SW, Washington, DC 2O585-0107. You should submit the appeal within 30 calendar days of receipt of this determination. The written appeal, including the envelope, must clearly indicate that a FOIA appeal is being made. The appeal must contain all the elements required by 1O CFR 1004.8. Judicial review will thereafter be available (1) in the District of Columbia; (2) in the district where you reside; (3) in the district where you have your principal place of business; or (4) in the district where the DOE records are located.
The above referenced number has been assigned to your request and you should refer to it in correspondence to the DOE concerning this matter. The Department's regulation implementing the FOIA is available on the Internet at http://www.access.gpo.gov/nara/cfr/waisidx_00/10cfr1004-OO.html.
If you have questions about the processing of the request, you may contact Ms. Carol Wolf of my staff on (202) 586-3141.
I appreciate the opportunity to assist you.
Abel Lopez, Director
FOIA/Privacy Act Division
Office of the Executive Secretariat