from the FAS Project on Government Secrecy
Volume 2005, Issue No. 11
February 1, 2005


In a radical shift in information disclosure and nuclear nonproliferation policies, the Department of Energy last week formally denied release of a history of highly enriched uranium (HEU) production that it had promised to publish nearly a decade ago.

DOE said that the study was exempt from disclosure under the Freedom of Information Act because it is an "internal" document that is also "pre-decisional."

"The responsive document is internal because it does not purport to regulate activities among members of the public," wrote DOE security officer Marshall O. Combs.

This is a bizarre redefinition of the FOIA exemption for "internal" agency records that would probably exempt the majority of government records from public disclosure, including most historical records, since they do not specifically regulate public activities. The new DOE definition would turn the FOIA into the Freedom From Information Act.

As evidence that the document is pre-decisional and deliberative in nature, Mr. Combs notes that the cover page states that it "Contains Deliberative Process Information."

Legally, this is flimsy stuff. The study was written for publication and it is unclassified, as confirmed in a DOE classification review. That means it "could not reasonably be expected to cause damage to the national security." In particular, the HEU study does not meet the standard for classification of "vulnerabilities... of systems, installations, infrastructures, ... relating to the national security." (Executive Order 13292, section 1.4g).

Mr. Combs cannot gainsay the fact that the study has been reviewed and declassified. Inexplicably, however, he still insists that "disclosure of the information would permit terrorists to assess the nation's vulnerability and target locations to damage the nation's critical infrastructure." And while he cannot claim that disclosure would "damage national security" (which would make it properly classified), he offers the legally meaningless claim that it would be "harmful to the nation's security."

As a whole, the DOE denial letter is a monument to the Ashcroft FOIA policy, cited by Combs, which encourages agencies to confabulate legal arguments against disclosure. The denial will be appealed. See a copy of the January 24 denial letter here:

In 1997, DOE made a "commitment" to publish the study that it has just refused to release. It was an era, rapidly receding, in which DOE officials valued public accountability, and sought to lead by example in promoting transparency and nuclear nonproliferation.

"This report will describe the history of Government production, acquisition, use, disposition, and inventories of highly enriched uranium," DOE stated back then. "This report will provide assistance to worldwide nonproliferation efforts by revealing where United States highly enriched uranium resides in the United States as well as in other nations. It will also assist regulators in environmental, health, and safety matters at domestic sites where this material is stored or buried." See this 1997 fact sheet:

A companion report on the history of plutonium production was previously published by DOE, and it gives the lie to Mr. Combs' contrived arguments for withholding of the HEU study.

That report, entitled "Plutonium: The First 50 Years," was posted for several years on the DOE web site. It is gone now, but a copy can still be found here:


The rules of the Senate Select Committee on Intelligence were republished in the Congressional Record yesterday, as slightly modified last year. A copy is posted here:

The Defense Security Service last month published Industrial Security Letter ISL 05L-1, including updates on some of the dizzyingly detailed security rules that contractors handling classified information must comply with. See:

Oversight of highly classified special access programs (SAPs) in the Department of Defense is the subject of a briefing presented last week to the Defense Science Board. It is the provocative contention of William Arkin's new book Code Names that the rules governing DoD SAP oversight are effectively circumvented by means of SAP-like "Alternative or Compensatory Control Measures" (ACCMs). At any rate, this January 27 briefing describes how the SAP oversight process is supposed to work. (Thanks to IWP Newsstand,


The tiresome Congressional Research Service does not permit direct public access to its products. The following new or newly updated CRS reports were obtained by Secrecy News.

"Military Aviation: Issues and Options for Combating Terrorism and Counterinsurgency," January 24, 2005:

"Arms Control and Nonproliferation Activities: A Catalog of Recent Events," updated January 7, 2005:

"Information Sharing for Homeland Security: A Brief Overview," updated January 10, 2005:

"Terrorist Attacks and National Emergencies Act Declarations," updated January 7, 2005:

"Continuity of Government: Current Federal Arrangements and the Future," updated January 7, 2005:

"Martial Law and National Emergency," updated January 7, 2005:


Secrecy News is written by Steven Aftergood and published by the Federation of American Scientists.

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