Abbotts v. Nuclear Regulatory Com'n, 84-5423
| Citation | 247 U.S.App.D.C. 114,766 F.2d 604 |
| Decision Date | 09 July 1985 |
| Docket Number | No. 84-5423,84-5423 |
| Parties | John ABBOTTS, Public Interest Research Group, Natural Resources Defense Council v. NUCLEAR REGULATORY COMMISSION, Appellant. |
| Court | United States Courts of Appeals. United States Court of Appeals (District of Columbia) |
Appeal from the United States District Court for the District of Columbia (D.C. Civil Action No. 77-0624).
Nicholas S. Zeppos, Atty., Dept. of Justice, Washington, D.C., with whom Richard K. Willard, Acting Asst. Atty. Gen., Joseph E. diGenova, U.S. Atty., William H. Briggs, Jr., Sol., Nuclear Regulatory Com'n, Dan M. Berkovitz, Atty., Nuclear Regulatory Com'n, and Leonard Schaitman, Atty., Dept. of Justice, Washington, D.C., were on brief, for appellant.
Eric R. Glitzenstein, Washington, D.C., with whom Alan B. Morrison and William B. Schultz, Washington, D.C., were on brief, for appellees.
Before TAMM and BORK, Circuit Judges, and McGOWAN, Senior Circuit Judge.
Opinion for the court filed by Circuit Judge TAMM.
Petitioner Nuclear Regulatory Commission appeals from an order of the district court requiring the Commission 1 to disclose information pertaining to the protection of nuclear facilities against terrorist attack. Because the district court improperly applied exemption 1 of the Freedom of Information Act (FOIA), we reverse and remand with directions to enter summary judgment for the Commission.
In 1974, the Commission began studying the possibility of recycling spent nuclear fuel for use in nuclear power reactors. A year later the Commission published the Generic Environmental Impact Study on the Use of Recycled Plutonium in Mixed Oxide Fuel in Light Water Reactors ("GESMO"). The GESMO report recommended approval of the recycling program because it offered a solution to the vexing problem of disposing of nuclear waste and promised a plentiful source of fuel for the nuclear power industry. The report drew heavy criticism, however, because it failed to address the security problems raised by recycling nuclear fuel: unlike the uranium typically used in nuclear reactors, thematerial produced from recycling--plutonium--can be used to manufacture nuclear weapons. Recycling thus raised the risk of theft, sabotage, and diversion of plutonium to countries seeking to build nuclear weapons. In response to this criticism, the Commission undertook further study, culminating in the 1977 publication of the "Draft Safeguards Supplement." Redacted from the Supplement, however, was a page discussing "baseline threat levels" ("BTLs"), the number of attackers the security systems in nuclear facilities should be designed to defend against.
In 1977, plaintiffs filed this FOIA request with the Commission seeking release of numerous documents pertaining to nuclear plant and nuclear materials security. This appeal concerns only one document: the redacted page of the GESMO Supplement containing the BTLs used by the Commission in regulating the safety of nuclear facilities. After considering affidavits submitted by the Commission, the district court held that the withheld information does not fall within exemption 1 of the FOIA and entered summary judgment for the plaintiffs.
Exemption 1 of the Freedom of Information Act protects from disclosure matters that are "specifically authorized under criteria established by an Executive order to be kept secret in the interest of the national defense or foreign policy" and "are in fact properly classified pursuant to such Executive order." 5 U.S.C. Sec. 552(b)(1) (1982). Executive Order 12,356 provides that " '[c]onfidential' shall be applied to information, the unauthorized disclosure of which reasonably could be expected to cause damage to the national security." 47 Fed.Reg. 14875 (1982). The Executive Order authorizes the classification of information concerning "United States Government programs for safeguarding nuclear materials or facilities." 47 Fed.Reg. 14876.
In determining whether an agency has properly withheld information pursuant to exemption 1, the district court must "determine the matter de novo," 5 U.S.C. Sec. 552(a)(4)(B) (1982), placing the burden on the agency to sustain its claim for exemption. See Miller v. Casey, 730 F.2d 773, 776 (D.C.Cir.1984). Because " '[e]xecutive departments responsible for national defense and foreign policy matters have unique insights into what adverse affects [sic] might occur as a result of public disclosure,' " however, courts are required to " 'accord substantial weight to an agency's affidavit concerning the details of the classified status of a disputed record.' " Salisbury v. United States, 690 F.2d 966, 970 (D.C.Cir.1982) (quoting S.Rep. No. 1200, 93d Cong. 2d Sess. 12 (1974) (conference report)), U.S.Code Cong. & Admin.News 1974, pp. 6267, 6290. Accordingly, an agency is entitled to summary judgment if its affidavits "describe the withheld information and the justification for withholding with reasonable specificity, demonstrating a logical connection between the information and the claimed exemption," id. at 970, and "are not controverted by either contrary evidence in the record nor by evidence of agency bad faith." Military Audit Project v. Casey, 656 F.2d 724, 738 (D.C.Cir.1981).
The affidavits provided by the Commission clearly describe the document and give specific justifications for nondisclosure. According to Mr. Burnett, Director of the Division of Safeguards of the Commission's Office of Nuclear Material Safety and Safeguards, "[t]he GESMO Report contains the NRC's determination as to the number of attackers a nuclear facility should be able to defend against successfully." Joint Appendix (J.A.) 35. This information is identified by a number of exhibits as the Commission's official policy on threat levels used to measure security of nuclear facilities. 2 Thus, by "knowing the size of the design basis threat that the NRC uses as a guide to evaluate security systems, an adversary can compute the size of the assault force needed for optimum results." J.A. 35-36. Release of the GESMO information "would therefore increase the probability of a successful attack on a fuel facility." Id. The affidavits presented by the Commission therefore demonstrate "a logical connection between the information and the claimed exemption." Salisbury v. United States, 690 F.2d 966, 970 (D.C.Cir.1982).
The district court apparently found that while the Commission's explanation was facially plausible, conflicting evidence in the record showed that (1) similar information had already been released into the public domain, and (2) the information was not as dangerous as other information that could have been released.
To support its finding that the information sought is already in the public domain, the district court listed examples of either specific estimates of maximum credible threat levels or specific appraisals of existing nuclear plants that had been released to the public in the past decade. For example, in April 1974, a Commission-sponsored study estimated that the maximum credible external threat to a nuclear facility was a force of fifteen highly trained men. J.A. 78. A 1975 Commission study concluded that there was a "consensus estimate that an external threat group will probably number about 6-8 persons and very likely not exceed 12 persons." J.A. 84. A December 1975 memorandum to the Commission from the Defense Intelligence Agency stated that a security system should be prepared to repel an adversary group comprised of "approximately 12 dedicated, well-trained, well-armed personnel." J.A. 97.
The district court's finding that the similarity of these estimates to the information withheld weakens the Commission's claim to exemption...
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