submitted via, December 9, 2008

FAS Comment on RIN 1901-AA32, Revision of Department of Energy's Freedom of Information Act Regulations

I wish to comment on the proposed revision to 10 C.F.R. section 1004.1 that would remove the so-called "extra balancing test." As explained below, I believe that this section has served the public interest in an identifiable way and should be retained.

The "extra balancing test" favorably differentiates the Department's FOIA practice from that of other federal agencies and has had a tangibly positive effect on Department disclosure policy.

Last April, I submitted FOIA requests to approximately ten federal agencies including DOE for a copy of agency comments on the recommendations of the Public Interest Declassification Board concerning declassification of classified national security information. (Agency comments had been requested by the President in a January 29, 2008 memorandum. At DOE, my request was designated case number FOIA-2008-000252.)

Among all the agencies that I contacted, only DOE responded with a full release of the requested material. The DoE comments were extremely informative and instructive. They have been downloaded from our web site many hundreds of times by interested members of the public.

Meanwhile, however, other agencies including the Department of Defense, the Office of the Director of National Intelligence, and the Department of Homeland Security denied an identical request in its entirety, citing FOIA exemption (b)(5) which protects privileged interagency communications. Administrative appeals have so far affirmed the denials.

Like those other agencies, DOE could have invoked exemption (b)(5) and effectively barred public access to its comments on the Declassification Board recommendations. Why didn't it do so?

I believe the answer is reflected in the contents of section 1004.1 which encourages the release of information in the public interest even when it is legally permissible to withhold it.

Instead of removing section 1004.1, I would favor adding an identical provision to the FOIA regulations of other agencies that currently withhold information unnecessarily simply because they may.

In effect, the existing DOE regulation conforms to the 1993 Attorney General policy on FOIA which urged release of all information except where there was a "foreseeable harm" to a protected government interest. The change that is now being proposed would make DOE regulations consistent with the 2001 FOIA policy of Attorney General Ashcroft that encouraged withholding of information whenever there is a "sound legal basis" to do so.

But there is a widespread and I think well-founded expectation that the incoming Obama Administration will rescind the Ashcroft FOIA policy and define a more forthcoming disclosure policy. In light of that probable scenario, I would urge DOE to cancel its proposed revision of the section 1004.1, or else to suspend action on it for six months while the new Administration prepares new government-wide FOIA guidance.

Thank you for your consideration.

Steven Aftergood
Project on Government Secrecy
Federation of American Scientists
1725 DeSales Street NW, Suite 600
Washington, DC 20036

voice: (202)454-4691