Controls on Unclassified Info Invoked to Evade FOIA

A federal court ruled (pdf) last year that the Department of Energy was obliged to disclose certain records concerning the Advanced Test Reactor (ATR) in Idaho after they were requested under the Freedom of Information Act by a public interest group, Keep Yellowstone Nuclear Free.  The court said that the exemptions to the FOIA claimed by DOE were not applicable in this case, and that the requested documents therefore must be released.

In order to prevent that from happening, DOE decided to designate portions of the records as “Unclassified Controlled Nuclear Information” or UCNI, which is protected by the Atomic Energy Act, and beyond the reach of FOIA.  “The documents have not previously been treated as UCNI,” DOE admitted to the court (pdf) last year, “and information related to the ATR has not been treated as UCNI since 1992, but” — prompted by the judge’s adverse FOIA ruling — “DOE has now determined that redacted portions of these documents fall within the statutory definition of UCNI.”

While there is abundant historical reason (pdf) to be skeptical of such opportunistic attempts to evade public disclosure, there is no specific reason to doubt that DOE acted in good faith in this case.  It may well be true that release of the withheld portions of the records — describing high consequence accident scenarios and locations of vital safety and security systems — could facilitate a “potentially catastrophic” act of sabotage, as DOE officials contended.

The FOIA requesters themselves agreed to accept the documents as redacted for UCNI.  The parties reached a settlement and the case was dismissed. Keep Yellowstone Nuclear Free declared victory with the receipt of some 1100 pages documenting ATR safety issues.

Last week, DOE’s Karl Hugo, who participated as a government classification expert in the case, presented his view of the issues (pdf) to a conference of DOE classification officers in Germantown, Maryland.  Two months ago, DOE issued an updated Order on “Identification and Protection of Unclassified Controlled Nuclear Information” (pdf) (DOE Order O471.1B, March 1, 2010).  Within weeks, the Obama Administration is expected to issue a somewhat controversial new executive order that is intended to standardize the use of controls on unclassified information across the government.