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FOIA Failings Continue

FOIA Denied
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The Freedom of Information Act (FOIA) is usually a watchdog’s best friend. But the Project On Government Oversight’s never-ending quest for any records sent by nuclear experts to Department of Energy (DOE) Secretary Steven Chu demonstrates that sometimes even FOIA doesn’t provide the transparency we need.

Secretary Chu requested a three-member commission to review physical security at all U.S. nuclear facilities last November after three protesters broke into the Y-12 Complex and came within feet of 400-500 metric tons of highly enriched uranium. The three experts, Retired Lockheed Martin CEO Norman Augustine, retired Air Force Maj. Gen. C. Donald Alston, and former Chairman of the Nuclear Regulatory Commission Richard Meserve, conducted independent investigations and provided their concerns and recommendations to Secretary Chu in the form of three letters.

POGO filed a FOIA request for any correspondence between these three experts and Secretary Chu from January 2011 to the present, specifically regarding the Y-12 incident. On January 25, 2013, POGO received a response from the Department of Energy saying: “A search of Secretary Chu’s emails was conducted, for communications with the individuals referenced in your request. That search produced no responsive documents.”

Although POGO obtained the letters another way, this response was concerning, so we filed an appeal. But the most recent DOE response still has us scratching our heads. In the latest search for these elusive letters, the Office of the Executive Secretariat found five records but withheld them all on the basis of two FOIA exemptions, 5 and 6.

Exemption 5 protects inter-agency and intra-agency documents that may reflect deliberative decisions in the policy-making process. According to our most recent response from the DOE, “Their release would compromise the deliberative process by which the government makes its decisions.” But it seems ludicrous that the release of three letters making fairly simple recommendations—recommendations that have been made countless times before—would adversely affect the policy-making process. Indeed, it is the release and analysis of letters and recommendations like this that promotes good government changes.

Exemption 6 protects against the “unwarranted invasion of personal privacy” of the people discussed or involved in the documents. It seems to us that a simple redaction would have been much easier and more in the spirit of FOIA than a flat-out rejection.

Our never-ending struggle to get these hardly top secret letters continues, as POGO plans to appeal this decision again.

It’s important for the public to know that the same recommendations to improve nuclear security are being made again and again. It’s striking to note that Norman Augustine used language similar to that in a public 2005 report written by Admiral Richard Mies, both experts highlighting just how many past studies and reviews have come up with the same recommendations while the DOE has made little to no changes in the security of its weapons complex. As these three letters and this entire FOIA debacle so clearly demonstrate, now is the time for improvement in security operations as well as in public access to government records.

By: Lydia Dennett
Investigator, POGO

lydia dennett Lydia Dennett is an investigator for the Project On Government Oversight. Lydia works on safety and security of nuclear weapons and power facilities, foreign lobbying and influence, and works with Department of Veterans Affairs whistleblowers.

Topics: Open Government

Related Content: Freedom of Information Act (FOIA), Nuclear Security, Nuclear Weapons Complex Oversight

Authors: Lydia Dennett

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