Official Use Only Information

What documents contain the policy foundation for the OUO program?

DOE O 471.3 Admin Chg 1, Identifying and Protecting Official Use Only Information.

DOE M 471.3-1 Admin Chg 1, Manual for Identifying and Protecting Official Use Only Information.

Who can decide whether a document contains OUO information?

In certain cases, the Office of Classification or your program office has already made the OUO decision for you. These decisions are found in classification guides, Unclassified Controlled Nuclear Information (UCNI) guidelines, or in program-issued OUO guidance. If a topic in such guidance indicates that information in your document is OUO, then the document contains OUO information.

Some OUO documents might also contain classified information or UCNI. If a document is in a classified subject area, a Derivative Classifier may need to review the document first to ensure that the document is not classified. Similarly, an UCNI Reviewing Official may also need to review the document.

If a document is not in a classified or UCNI subject area or no guidance exists, you may have to make a determination that is not based on guidance as to whether a document contains OUO. DOE M 471.3-1, Admin Chg 1, Chapter I, Paragraph 2 contains information as to who may make that determination.

No specific designation or training is required in order to make a determination, although training is strongly recommended. A briefing on making OUO determinations is available under the Resources section of this webpage. If you would like additional information, contact the DOE Office of Classification's Outreach Program at (301) 903-7567 or outreach@hq.doe.gov

How do I decide whether a document contains OUO information?

1. If the information in a document falls under the scope of an OUO topic in classification guide, UCNI guideline, or in program-issued OUO guidance, the document is OUO.
2. For information not falling under the scope of such guidance, you must consider whether the information:
   1. could damage Governmental, commercial, or private interests if disseminated to persons who do not need the information to perform their jobs or other DOE-authorized activities and
   2. reasonably falls under a Freedom of Information Act (FOIA) exemption.
3. Information cannot be controlled as OUO unless (a) OUO guidance applies or (b) both of the criteria in paragraph 2 are met.

For more information about OUO and the FOIA exemptions, see the section on making OUO determinations

DOE M 471.3-1, Admin Chg 1, Chapter II, Paragraph 1, details who may have access to OUO.

This means you can give an OUO document to anyone you think needs it to perform his or her job or other Government-authorized activity (unless there are special markings on the document restricting who can see it). The person does not have to have a security clearance or even be a Government employee or U.S. citizen. For example, OUO may be given to an emergency responder, a local police officer, or a member of Congress.

However, it should be noted that some OUO documents are marked to limit who can see them. For example, Export Controlled Information is a special kind of OUO information that cannot be given to foreign nationals and, similarly, contract selection information can only be given to those persons involved in the selection process. If you are not sure whether you can share a document with someone, contact the document's originator.

What are the rules for protecting an OUO document or material when a person is using it?

DOE M 471.3-1, Admin Chg 1, Chapter II, Paragraphs 2(a) and (b) contain the specific requirement for protecting OUO in use and storage.

Basically, when using an OUO document, take reasonable precautions to keep the wrong people from reading it. For example, don't read an OUO document in a public place, such as a cafeteria or on an airplane. When storing an OUO document in a locked or guarded office or building, an OUO document may be stored in an unlocked file cabinet, desk, bookcase, etc. Otherwise, the document must be stored in a locked file cabinet, desk, bookcase, etc. Regardless, when using or storing an OUO document, the goal is the same - to keep the information from anyone who doesn't need it to do his or her job.

Are there any restrictions on reproducing a document that contains OUO?

DOE M 471.3-1, Admin Chg 1, Chapter II, Paragraph 2(c) contains the requirements for reproduction of OUO.

Where can I find the approved methods for destroying a document or material containing OUO?

The requirements for the destruction of OUO are found in DOE M 471.3-1, Admin Chg 1, Chapter II, Paragraph 2(d).

How may hard copies of a document marked as containing OUO be transmitted by mail?

DOE M 471.3-1, Admin Chg 1, Chapter II, paragraphs 2e(1) and (2) contain the details for transmitting OUO by mail outside or inside a facility.

Can OUO be hand carried?

Yes. DOE M 471.3-1, Admin Chg 1, Chapter II, paragraph 2e(3) contains the details for hand carrying OUO between or within facilities. The main thing to remember is that you must have continual control over the OUO material.

How is OUO transmitted electronically (by faxed, phone, or email?

For information as to how OUO is transmitted by fax, phone, or email, contact your Program Office.

Why is OUO linked to the Freedom of Information Act (FOIA) exemptions?

Under the FOIA, any person can request any information from the Government and get it - except for information falling under any one of the nine exemptions specified in the FOIA. Therefore, trying to control information that doesn't fall under the FOIA exemptions wastes Government resources since such information must ultimately be released. As a result, one of the criteria you must use when deciding if information is OUO is whether it falls under a FOIA exemption.

Note that information under the purview of a topic in classification or UCNI guidance or in program-issued guidance, has already been determined to fall under a FOIA exemption, and further analysis is not necessary. If information is identified as OUO in a guide, it must be marked and protected as OUO.

Are documents marked OUO automatically exempt under the FIOA?

No! The FOIA mandates the release of information to the public except in specifically defined circumstances. OUO markings are only used to control information internally within DOE and to advise other agencies that the information contained in a document is sensitive. Whenever a document is requested under the FOIA, regardless of markings, it must be analyzed by an authorized FOIA official to determine if any information within the document is exempt. FOIA officials will conduct an analysis and determine if information meets the criteria to be exempt from the FOIA. In most cases, the FOIA official will remove the exempt information and release portions of the document that are not exempt.

What are the FOIA exemptions?

There are nine FOIA exemptions. OUO concerns only unclassified information, therefore Exemption 1, which pertains to information classified by Executive order, never applies to OUO. OUO information must fall under at least one of the remaining eight FOIA exemptions. Following is an overview of these exemptions with examples:

Exemption 2, Circumvention of Statute

A Supreme Court decision in March 2011, redefines the use of Exemption 2. Exemption 2 no longer applies to Circumvention of Statute information. Because this has been the sole basis for Exemption 2, the Exemption no longer applies to OUO.

In response to the decision, and based on review of the FOIA exemptions, the Office of Classification issued Policy Bulletin 4, Exemption 2 Guidance (POL-4). POL-4 permits persons making OUO determinations based on guidance to use "Exemption 7, Law Enforcement" in place of Exemption 2 because in most cases, this is an appropriate exemption for DOE security-related information. As guides are reviewed, guide topics that cite Exemption 2 will be analyzed and revised to reflect the appropriate exemption. It is important to note that POL-4 applies only to OUO determinations based on guidance and not to FOIA reviews or to OUO determinations outside of guidance. In such cases blanket use of Exemption 7 in place of 2 is not appropriate. For any FOIA denial that would have previously cited b(2), each FOIA exemption must be examined to determine the appropriate exemption. The same must be done for OUO determinations outside of guidance.

Exemption 3, Statutory Exemption

Within DOE, the Atomic Energy Act is an Exemption 3 statute that is the legal basis for the classification of Restricted Data, and Formerly Restricted Data, and the control of Unclassified Controlled Nuclear Information. These types of information are classified or controlled under other regulations or directives and, therefore, there is no need to designate such information as OUO.

Unless you or someone in your office has experience with information that may be OUO using Exemption 3, it may be difficult to determine if Exemption 3 could apply. If you think information in a document might be OUO using an Exemption 3 statute that is not included in the examples below, you may contact the Office of Classification Outreach Program at (301) 903-7567 or outreach@hq.doe.gov for assistance.

Examples of Exemption 3 OUO information/documents:

Exemption 4, Commercial/Proprietary

Exemption 4 OUO information encompasses:

1. Trade Secrets - A trade secret is "a secret, commercially valuable plan, formula, process, or device that is used for the making, preparing, compounding, or processing of trade commodities and that can be said to be the end product of either innovation or substantial effort." Trade secrets are often technical in nature.
2. Commercial or Financial Information - Information that is (a) commercial or financial, (b) obtained from a person (includes corporations), and (c) privileged or confidential. Commercial or financial information is usually not technical in nature.

The following should be considered in deciding whether a document may be OUO under Exemption 4:

1. If submission of the information is required by the Government, would release of the information impair the Government's ability to obtain information? If it would impair the Government's ability, it could be OUO.
2. If submission of the information is required by the Government, would release of the information cause harm to the competitive position of the person submitting the information or adversely impact program effectiveness? If release could cause harm or impact program effectiveness, the information could be OUO.
3. If the submission is voluntary, would the person usually release the information to the public? If the person has or would usually release the information to the public, it is not OUO.

Examples of Exemption 4 OUO information/documents:

Exemption 5, Privileged Information

Although there are many categories of privileged information, the privilege most likely to be used within DOE is the deliberative process privilege (also known as "executive privilege"). This privilege ensures that Agency staff is free to make candid comments in the formulation of Agency policies. If every rejected comment were required to be made public, it would have a "chilling effect" on the willingness of the Agency staff to provide their best input, hurting the quality of Agency policies. The following factors should be considered when deciding whether information can be OUO under Exemption 5:

1. The document must be for inter-agency or intra-agency communication only. This means that any document not generated for public release may be considered an inter-agency or intra-agency document.
2. Release of the document could cause harm to the process of developing Agency policy because such release could:
   1. discourage open, frank discussions concerning draft policies;
   2. cause premature disclosure of proposed policies before they are finally adopted; and
   3. cause confusion in the public that could result from disclosing reasons and rationales that were not ultimately the grounds for an Agency's action.
3. A draft document should only be OUO under Exemption 5 if its release could harm the deliberative process.

Examples of Exemption 5 OUO information/documents:

Exemption 6, Personal Privacy

Exemption 6 OUO information protects personal information related to a specific individual that, if disclosed, might cause personal distress or embarrassment or could lead to identity theft. Exemption 6 includes Personally Identifiable Information (PII).

Examples of Exemption 6 OUO information/documents:

Exemption 7, Law Enforcement

Exemption 7 protects from disclosure records or information compiled for law enforcement purposes (including criminal and civil enforcement). The information does not have to have been created for law enforcement but could be used later for law enforcement purposes. It may also be related to the prevention of illegal activities. It includes information that:

1. could reasonably be expected to interfere with enforcement proceedings,
2. would deprive a person of a right to a fair trial or an impartial adjudication,
3. could reasonably be expected to constitute an unwarranted invasion of personal privacy,
4. could reasonably be expected to disclose the identity of a confidential source, including a State, local, or foreign agency or authority or any private institution that furnished information on a confidential basis, and, in the case of a record or information compiled by a criminal law enforcement authority in the course of a criminal investigation, or by an agency conducting a lawful national security intelligence investigation, information furnished by a confidential source,
5. would disclose techniques and procedures for law enforcement investigations or prosecutions, or would disclose guidelines for law enforcement investigations or prosecutions if such disclosure could reasonably be expected to risk circumvention of the law, or
6. could reasonably be expected to endanger the life or physical safety of any individual.

Examples of Exemption 7 OUO information/documents:

Exemption 8, Financial Institutions

Exemption 8 concerns information that is prepared by, on behalf of, or for the use of an agency responsible for the regulation or supervision of financial institutions. Because DOE is not an Agency that regulates or supervises financial institutions (e.g., the Federal Deposit Insurance Agency), it is very unlikely this exemption would be used by DOE employees.

Exemption 9, Wells

Exemption 9 concerns geological and geophysical information and data concerning wells. Exemption 9 OUO information can concern any kind of well (e.g., oil, natural gas, water, geothermal), but is generally limited to technical or scientific information about the well.

Examples of Exemption 9 OUO information/documents:

Front page marking:

If a document contains OUO, the front page must have the front marking. (DOE M 471.3-1, Admin Chg 1, Chapter I, Paragraph 3a.)

For instructions on filling out the front marking and an electronic sample you may copy to a document, see OUO Stamp with Directions.

Page marking:

The marking "OFFICIAL USE ONLY" must be placed on the bottom of the front of the document and on the bottom of each interior page of the document that contains text or if more convenient, on the bottom of only those interior pages that contain OUO. If space limitations do not allow for use of the full page marking, the acronym "OUO" may be used as the page marking. (DOE M 471.3-1, Admin Chg 1, Chapter I, Paragraph 3b.)

Transmittals:

A document that transmits documents or material marked as containing OUO and does not itself contain classified information or OUO must be marked on its front with "Document(s) transmitted contain(s) OUO information". (DOE M 471.3-1, Admin Chg 1, Chapter I, 3f.)

Marking e-mail:

If the e-mail contains OUO information, the first line of an e-mail message must contain the abbreviation "OUO." There is no requirement to detail all of the information that is required in the front marking for hard copies (e.g., exemption name and number or guidance used, if applicable.) If the e-mail itself does not contain OUO, but an attachment contains OUO, the message must indicate the attachment is OUO (there is no specific language required.) (DOE M 471.3-1, Admin Chg 1, Chapter I, 3c.)

Additional Reference

See DOE M 471.3-1, Admin Chg 1, Chapter I, paragraph 3, for marking instructions. For samples of the above markings and others, see Marking OUO Documents.

When you hear the term Controlled Unclassified Information (CUI), it could mean one of two things. Currently, within DOE "Controlled Unclassified Information " or CUI is an overarching term used to refer to unclassified information that is identified and marked as sensitive (e.g., OUO and Unclassified Controlled Nuclear Information (UCNI)).

Controlled Unclassified Information is also used to describe information that will be identified and safeguarded under Executive Order (E.O.) 13556, Controlled Unclassified Information. E.O. 13556 mandates a Government-wide uniform program to identify and protect sensitive but unclassified information. At this time, policies for CUI under the E.O. are still being developed. No timetable has been set for implementation and implementation will take place over years. Until a National directive is issued and DOE issues its own implementing directive, DOE personnel must continue to follow the requirements for OUO (and UCNI) information.

The following are materials that may assist you in understanding OUO.

• Understanding Official Use Only
• Trifold Official Use Only Brochure
• Official Use Only - Training

If you have questions regarding the DOE's OUO program, contact the Office of Classification's Outreach Program at (301) 903-7567 or outreach@hq.doe.gov.