Report of the Fundamental Classification Policy Review Group

Appendix B to the
Report of the
Fundamental Classification
Policy Review Group

 

Stakeholder Input

 

January 15, 1997

 

The Department of Energy has strived to establish a tradition of stakeholder involvement through both the Openness Initiative and the Fundamental Classification Policy Review (FCPR). In the 18 months that led up to the FCPR, DOE hosted numerous public meetings across the nation publicizing the principles and goals of the Openness Initiative. The FCPR, a key element of the Openness Initiative, was officially launched in March 1995. During the kickoff meeting, Secretary O'Leary described the Department's goal to formulate a classification policy that would provide for smarter security, balanced openness, improved public trust, and enhanced DOE missions. The Secretary stressed the Department's desire to include the public in the debate of classification policy. In addition, the Secretary had previously committed to the declassification review and public release of a large volume of information that was of immediate public interest. The volume and the diversity of this information posed significant obstacles to providing an expeditious and responsive review process. In order to establish a meaningful dialogue and assign priorities, interested parties, individuals and organizational representatives, were encouraged to voice their interest and concerns relative to the proposed declassifications. Stakeholders worked with the Department to prioritize the information scheduled for review. Responding to stakeholder input, records concerning human experimentation, environment, safety, and health (ES&H), and nuclear testing were given top priority. With stakeholders' assistance, DOE met its commitment, reviewing, declassifying, and releasing vast amounts of information. The Department's responsiveness to stakeholder concerns and priorities passed a clear signal: it was committed to fostering a meaningful dialogue with the public.

As public awareness and confidence in the Openness Initiative and the FCPR grew, the number of stakeholder comments and concerns expanded rapidly. A database of stakeholder comments was established to better manage the growing number of inputs, coordinate and expedite responses to inquiries, and catalog comments and concerns that would later be forwarded to the FCPR for consideration. The stakeholder database sorted comments and concerns by interest categories and geographic locations associated with DOE sites or facilities. The latter was used to determine future meeting locations and to tailor agendas to an area's specific concerns. Stakeholder comments were grouped into eight categories:

ï   Accessibility;
ï   Openness concerns;
ï   Declassification proposals;
ï   Human experimentation;
ï   Nonproliferation and testing;
ï   Environment, safety, and health ;
ï   Budget and contracts; and
ï   All others.

Major categories were broken down into topic areas permitting incoming comments to be slotted into an appropriate category for tracking. Stakeholder inputs often addressed multiple topics within a specific category; in this case, each comment was counted as inquiry against a specific major category. It should be emphasized that the stakeholder database tracked topical comments and there is no direct correlation between the number of comments and the number of individuals or organizations responding.

The topics were allocated to the categories as follows:
Accessibility
- Freedom of Information Act
- Atomic Energy Act Revision
- Executive Order Revision
- Electronic Access
- Public Education
- Unclassified Controlled Nuclear Information
- Born Classified, Private Restricted Data
- Formerly Restricted Data
- Intergovernment Cooperation		 Openness Concerns
- Declassification Caution
- Declassification Opposition
- Public Trust
- Oversight
- National Security Interest
- FCPR
- Dual Use Technology
- Public Relations
Environment, Safety, and Health
- Environmental Cleanup
- Site Reclamation
- Dose Reconstruction
- Nuclear Waste Storage
- Renewable Energy
- Environmental Impact Studies
- ES&H Oversight 		Declassification Proposals
- Historical Documents
- Navy Nuclear Power Program
- Programmatic Information
- Commercial Application
- Weapons and SNM Stockpile Data
- Joint US/UK Programs
- Weapons Design and Production
- SNM and Tritium Production
Human Experimentation
- Nature of Experiments
- Potential Risk
- Dates and Locations
- Subject Populations
- Compensation		 Nonproliferation and Testing
- Comprehensive Test Ban Treaty
- Proliferation and Terrorism
- Treaty Verification
- Stockpile Safety and Reliability
Budgets and Contracts
- Overall DOE Budget
- Line Items, Cleanup, and Declassification
- Contracting and Procurement Oversight
- DOE Strategic Realignment
- DOE Downsizing 		Other
- Personnel Security
- Whistle Blowers
- Affirmative Action
- Respect/Use of Local Expertise

In all, over forty topic areas were addressed by stakeholder comments with total inputs equaling 768. The distribution of stakeholder comments is illustrated in the following graphic and table.

Distribution of Stakeholder Interest and Concerns

Category
Accessibility
Openness Concerns
Environment, Safety, and Health
Declassification Proposals
Human Experimentation
Nonproliferation and Testing
Budgets and Contracts
All Others
 Count
243
131
97
89
61
50
46
51 		% of Total
31%
17%
12%
12%
8%
7%
6%
7%
Total Number of Responses768 

The FCPR recognized the importance of inputs from outside experts, citizens, and interest groups and strongly encouraged them throughout the review. Stakeholder inputs were provided by a diverse group of organizations and individuals that included:

While not inclusive, this listing is illustrative of the differing perspectives, concerns, and opinions that the stakeholder inputs provided. The FCPR relied upon stakeholders to provide this full spectrum of ideas and perspectives on DOE classification policy under review.

Secretarial press conferences and open meetings allowed FCPR representatives and stakeholders the opportunity to participate in dialogues that addressed classification issues under review that had potential impact on public and private organizations and individual stakeholders. Questionnaires were used to solicit attendees' inputs on specific classification policy issues and invite comments on topics of individual or organizational concern. Stakeholders were surveyed as to their individual concerns and desires regarding additional public meetings. Newsletters and status reports describing the ongoing efforts and announcing future scheduled events were routinely provided to stakeholders. Federal Register notices were used to formally announce the release of the FCPR draft report for public comment and other upcoming events on the FCPR calendar that were of significant interest to stakeholders.

Along with soliciting traditional stakeholder inputs, the Department requested that the National Academy of Sciences co-host a workshop on DOE's classification and information control policies and procedures. In the Secretary's letter to the Academy, the workshop was envisioned as an educational event that would seek out stakeholder views. In addition to co-hosting the classification policy workshop, the Academy's Committee on Declassification conducted an in-depth, independent review of the Department's declassification plans and programs. With a panel of distinguished Americans, the Academy completed its review and provided a thorough and objective analysis together with recommendations. The report, A Review of the Department of Energy Classification Policy and Practice, was released in August 1995 and forwarded to stakeholders for their review and comment. Like all other stakeholder comments, the Academy's report was provided to FCPR members for inclusion in their deliberations.

The primary task of the FCPR was to determine which categories of information related to nuclear defense activities require protection. Stakeholder inputs from the kickoff meeting provided the review team with a logical starting point for their analysis. Initial stakeholder inputs suggested that the following information be declassified:

Certain topic areas were singled out as critical information that required continued protection. Included in these topical areas were:

Stakeholders were in general agreement that information revealing nuclear weapons design or SNM production technology in the hands of potential proliferants or terrorists posed an unacceptable risk to national security. Protection of these areas of information was mandatory and stringent controls were appropriate when applied to tightly bounded and concisely defined sensitive information categories. Dr. Wolfgang Panofsky, Director and Professor Emeritus of the Stanford Linear Accelerator Center and a distinguished stakeholder, expressed an opinion that effectively summarized initial stakeholder comments:

"Very high fences should remain around truly important sensitive subjects, but that classification and dissemination restriction on a large volume of less sensitive material should be removed entirely."

As described earlier, stakeholder comments were sorted into eight major categories. Not all comments received during the course of the FCPR fell within the scope of the Review's charter; nevertheless, all stakeholder comments and concerns were available to the review teams. Stakeholder comments relating to ES&H and Human Radiation Experimentation topic areas were valuable for the historical perspective they provided to the policy review process. Balancing national security interest and the need for an informed public is the fundamental dilemma an effective classification policy must address. ES&H and Human Radiation Experimentation topic areas clearly illustrate how this balance has shifted as our nation's priorities have evolved over the years. Because of their value to the overall review process, these topic areas are included in this appendix.

Environment, Safety, and Health concerns concentrated on six key issues:

  1. Cleanup. The cleanup and reclamation of nuclear weapons production facilities was the primary concern. "The serious crises facing our country result from decisions being made by a handful of people without public awareness or participation, and often without much awareness or participation on the part of Congress. I refer to such crises as: the costly and extremely difficult environmental restoration and waste management problems at DOE and DOE facilities ..." Stakeholders felt that the public had an obligation to participate in the debate as to how best to accomplish these tasks and government agencies involved should release all relative information. Stakeholders were primarily concerned with hazards to worker and public health, scheduling, and cleanup cost.

  2. Storage Sites. Information concerning current and proposed storage sites for nuclear waste, including site selection, safety, security, and cost, should be in the public domain.

  3. Site Monitoring. Stakeholders questioned the credibility and perceived lack of public scrutiny of site monitoring and waste management assessment programs.

  4. Environmental Impact Studies. Information should be released on all programs, current and planned, with significant environmental impact. Information should be provided in a format suitable for review and comprehension by the general public.

  5. Radiation Exposure. Radiation workers should be provided with the most current, accurate information relating to their individual radiation exposure and the exposure levels of their work environment.

  6. Radiation and Chemical Releases. Data should be promptly released to permit accurate determination of radiation and chemical releases from DOE facilities. Requested data are critical to ongoing dose reconstruction efforts.

Closely related to ES&H, Human Radiation Experimentation generated a considerable number of stakeholder comments and concerns. The Department has had an ongoing program to review and release to the public all information related to human experimentation. This effort was given high priority based on initial stakeholder inputs. In addition to DOE efforts, the Presidential Advisory Committee on Human Radiation Experimentation completed a two-year study and released a detailed report in October 1995. While stakeholder comments were supportive, concerns were voiced, specifically:

  1. Access. Access to human radiation experimentation data—what is available and where—is a major concern. Interested parties often lack funds to do significant research and rely upon government agencies to provide information categories and locations. "... let me reiterate--the cost of classification is nothing compared to the human cost of lives lost and suffering endured by Americans unable to obtain records needed to prosecute claims before the Department of Veteran Affairs and other government agencies for their radiation-induced illnesses and untimely deaths ..."

  2. Cooperation. Interdepartment and interagency cooperation—experimentation data are scattered across many departments and agencies—produced numerous comments. Stakeholders expressed frustration with the multiple layers of bureaucracy and inconsistencies in declassifying and granting access to information. "My battle is not necessarily with the DOE. As I've stated above, it is doing a fine job at this time. My battle is ... with other agencies taking the keys to those locked files."

  3. Time Sensitivity. Given the almost 50-year span of human radiation experimentation and aging of the subject population, this information is considered time sensitive. Human experimentation is subject to ongoing litigation and has received a large amount of media scrutiny. Compensation and ethical issues arising from the 50 years of experimentation are under judicial review. Lack of government coordination and access delays are described in some stakeholder comments as being perceived as intentional efforts to delay such proceedings. "Although the Department of Energy is doing an admirable job approximately 50 years after the first atomic bomb was detonated, it is too late for most of the hundreds of thousands of 'nuclear guinea pigs.' No monetary figure can be placed on human suffering."

These comments and concerns, while not directly related to the FCPR charter, clearly illustrate the complexity and the interrelationship of the various issues.

Accessibility was the primary stakeholder concern. Approximately 31% of the comments and concerns addressed various aspects of this issue, specifically:

  1. Public Priorities. The DOE information review process should be more responsive to public needs. "... I specifically mentioned the HALITE/CENTURION Program because declassification of some of its results would be of no value to potential proliferants, but would be of great value to scientists who are working in, and evaluating, inertial confinement fusion for energy production." Another distinguished stakeholder, Dr. Edward Teller, stated in a letter to Secretary O'Leary, "Your actions to declassify a number of subjects including work on ICF are most helpful. I am encouraged by your initiative to make further suggestions." Information related to issues in litigation or under close public scrutiny should be given top priority in the declassification review pipeline. "... quantitative statements about radiation damage to living beings should be encouraged since it aids public understanding while it makes little contribution in connection with proliferation."

  2. Public Classification Guidelines. DOE should promulgate public guidelines that define in unambiguous terms where the line is to be drawn between classified and unclassified information. "It would be most advantageous to have firm and clear rules concerning secrecy and have minimal reliance or no reliance on individual judgment which in too many cases proved faulty." When review of classification policy indicates topic areas no longer require protection, the public should be informed and the public guidelines updated.

  3. Freedom of Information Act (FOIA). The FOIA request process was cited as being too slow and perceived as a significant obstacle to authorized access. One stakeholder, referring to the "cancer of secrecy," complains of the blackened-out portions in a response to a FOIA case and infers that resistance to the release of information is adding to the public's mistrust of DOE.

  4. Unclassified Controlled Nuclear Information (UCNI) and Formerly Restricted Data (FRD). Two categories of protected information came under considerable stakeholder criticism. Both UCNI and FRD were described as poorly defined and redundant classification categories. "Moreover, once information has been officially released as unclassified, it seems to run counter to our judicial system to have the government place penalties on its citizens for using and freely disseminating such information." In addition to the preceding, stakeholder comments reflected the opinion that the UCNI label had been used to inhibit private competition and to prevent public scrutiny of potentially embarrassing information. FRD was cited as the cause of an unnecessary overlap in Restricted Data (RD) and National Security Information (NSI).

  5. Electronic Access. Stakeholders encouraged the use of electronic access to publicize DOE activities and avail the public of recent declassification actions. Scheduled meetings of public interest, classification policy updates, comments from DOE leadership, and bibliographical listings of recently released files were examples of information stakeholders felt would be appropriate for electronic access.

  6. Catalog Recent Declassifications. DOE should periodically publish listings of recent declassification actions.

Stakeholders were quick to point out the true measure of openness is not the number of documents declassified; rather, it is the public's ability to determine what is available and the ease with which the desired information can be accessed.

The Openness Initiative and the FCPR generated many comments and concerns. Comments range from "DOE's Openness Initiative is a welcomed breath of fresh air," to "very irresponsible and alarming with the Soviet threat still very real and with terrorism growing." Comments reflected such concerns as how to maintain the balance between embracing openness and protecting information critical to national security. "I want to commend you on the steps you have already taken to declassify information. I encourage you to continue declassifying information that is important to an informed public debate on key policy issues and for which release poses a minimal risk to national security." Other comments were directed at the focus of the Openness Initiative and the FCPR. "I believe it is important, if we are to move away from the Cold War mentality which hid most of our government operations relating to the military, foreign affairs, and 'national security' from the public and even Congress, the fundamental principal for classification and declassification should be that EVERYTHING should be open for public scrutiny except for technical, scientific data relating to how weapons are built, satellites operate, and similar matters. The presumption should be that information and data should be available to the public unless the classifiers can demonstrate, to an outside and impartial entity, that it is necessary to keep certain scientific or technical data classified." Specific openness comments and concerns included:

  1. Focus of the Openness Initiative. The Openness Initiative must be proactive, it cannot only deal with the past.

  2. Education. Information released without justification, explanation, or education can be misinterpreted and misrepresented. The public must be provided with the tools to comprehend the information to be released. "...It is extremely important not only to declassify nuclear matters, but to make them understood ... Misinformation about subjects such as radiation experiments could prove more detrimental than the earlier secrecy."

  3. Clarity. Eliminate acronyms; information should be in terms that are understandable by the general public.

  4. Openness versus Reality. Conflicts exist between the spirit of the Openness Initiative and the reality of Department requirements regarding public and media access to DOE records and facilities. "The Openness Initiative, resulting in some previously classified information being made available, has been very helpful. But citizen activities related to cleanup, unsafe management of SNM at Rocky Flats remain hampered by ongoing secrecy. Greater citizen participation should mean increased democracy, but democracy cannot function without full and free flow of information." A more proactive approach is viewed as necessary.

  5. Cost. Has the true cost of the Openness Initiative been accurately estimated?
    (a) Volume of classified material requiring review
    (b) Probability of underestimating the task
    (c) Available resources to conduct adequate reviews
    (d) Money spent on openness public relations—could it be better spent hiring more reviewers?

    "The Openness Initiative is wonderful, but requires adequate resources if it is to achieve its goals safely."

  6. Caution. While desirable to review and declassify, a cautious approach is prudent. "Let us make haste slowly."

  7. Objection. "Full disclosure of weapons information in light of events at the World Trade Center and Oklahoma City, is it wise?"

  8. National Security Risk. Blanket release of older documents may present unacceptable nuclear terrorism and proliferation risks. "Proliferation is, in my mind, a serious concern. I believe that many things regarding nuclear explosives should remain classified."

  9. Technology Transfer. "Need to rethink Openness; should not reveal U.S. technology, stop releasing formerly classified U.S. documents to the rest of the world."

  10. FCPR. There are too many DOE insiders to effect a real change in the way DOE does business. "... I am baffled by the limited makeup of the team. The review team appears to be limited to those who have the largest stake in seeing documents remain classified." The number of insiders casts doubt on the Review's ability to conduct an objective, independent study. "Once again, the fox is guarding the chickens at DOE. How can the public trust the same old management officials who created the problem in the first place to have any interest or initiative in fixing it—an acknowledgment of past wrongdoing." Private citizens should be included in the FCPR working groups. "As you know there is substantial distrust of U.S. DOE and the classification process by the public. I believe that damaged credibility can be repaired. One step toward that goal is to include the public and/or stakeholders in the discussions and decisions of the Classification Policy Review Team." The completion date is too late; the early 1996 completion date coincides with the beginning of the 1996 Presidential campaign. The stakeholder is concerned that the Review's recommendations will fall victim to election year politics. "We feel that the scheduled completion of the review in March 1996 is far too late ... by that time the Presidential election campaign will be in full swing ... a guarantee that nothing positive will happen. One wonders if the timing is not deliberate. The completion date must be no later than this (1995) October/November." The scope of the review was criticized as being too narrow and topical, rather than a broad-based policy review. "I have a real concern with the fundamental structure of the Fundamental Classification Policy Review. The seven working groups are examining various topical areas for review of current classification policies. It would seem to me that to get past some of the classification problem areas, there needs to be a group that is taking a hard look at classification in the broad sense BEFORE getting down to topical issues." Decisions, recommendations, and a listing of affected documents should be made available for public review and comment. "Along with whatever decisions are made concerning declassification/documents declassified, will an easily accessible public database be established so that the public will actually know what decisions were made and what documents declassified?"

Defining in concise terms what categories of information require continued protection is essential to building public confidence, enhancing security, and fostering government accountability. Stakeholders indicated that a smaller body of critical nuclear weapons information, defined in unambiguous terms with a clear rationale as to why classified, could be more easily protected. Specific declassification proposals were offered in an effort to trim the current body of information. The declassification recommendations reflected the proactive perspective of many stakeholders. "While the archived records are of great interest ... the principal drivers for immediate declassification should be the protection of the public health and safety, and protection of the environment. In addition, basic, baseline data essential for informed public participation in future United States nuclear policy decisions (such as reconfiguration of the nuclear weapons complex) must be made available." Specific stakeholder declassification proposals included:

  1. Declassify the number of nuclear weapons in the stockpile (active and inactive)

  2. Declassify the number of weapons awaiting dismantlement

  3. Declassify the amounts of SNM and tritium in the stockpile

  4. Declassify weapons storage locations and safety factors associated with nuclear weapons transportation and storage

  5. Declassify weapons program information, including production schedules, cost, and retirement schedules

  6. Declassify weapons science information, including computer models and codes that do not reveal weapon design information

Stakeholder comments indicated that proposed declassification actions would enhance existing nonproliferation efforts by providing access to information relative to SNM inventories, production facilities, and storage sites that can be used by the international community to monitor and inhibit potential proliferants. "The United States can set an international example by aggressively releasing previously classified archived material concerning nuclear activities. Declassification will encourage other nations, such as France and Russia, to inform its citizens of past actions which have adversely affected the environment. By lifting the veil of secrecy on a global scale, the United States can encourage two long established goals of nonproliferation and disarmament."

In conclusion, the majority of stakeholder inputs were supportive of the spirit and the intent of the Openness Initiative and the established goals of the Fundamental Classification Policy Review. While stakeholder concerns and comments were as diverse as the stakeholders themselves, their inputs did indicate general agreement on four key issues. First, there is a continuing need to protect critical nuclear weapons design information, and information and technology relating to the production of SNM and its nuclear weapons application. Secondly, the perceived threat to national security is rapidly evolving. No longer can we, as a nation, concentrate on a narrowly defined threat corridor. Today's threat is a loosely defined mix of regional powers, potential proliferants, and criminal and terrorist organizations. It is critical that the nation's classification policy evolve with the threat. Thirdly, the Openness Initiative has fostered many positive steps, but more needs to be done. Access to information and facilities must be improved. The FOIA request process must be streamlined and made more responsive. The declassification review process requires modernization if it is to keep pace with the increasing volume of material to be reviewed as result of the Openness Initiative and Executive Order 12958. Finally, openness and classification policy evaluation must be a continuing, proactive process that is built on awareness, education, and communication.

Report of the Fundamental Classification Policy Review Group