IA-86-682, Responds to Appeal Re Denial of FOIA Request for Document. Document Contains Predecisional Legal Analysis,Opinion & Recommendation of Staff & Part of Agency Deliberative Process.Document Withheld (Ref FOIA Exemption 5)

Responds to Appeal Re Denial of FOIA Request for Document. Document Contains Predecisional Legal Analysis,Opinion & Recommendation of Staff & Part of Agency Deliberative Process.Document Withheld (Ref FOIA Exemption 5)

ML20234F379
Person / Time
Issue date:	06/26/1987
From:	Chilk S NRC OFFICE OF THE SECRETARY (SECY)
To:	Voight H LEBOEUF, LAMB, LEIBY & MACRAE
References
FOIA-86-682, FOIA-87-A-28 NUDOCS 8707080201
Download: ML20234F379 (2)

Text

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OFFICE OF THE ' June 26,.1987' SECRETARY Harry H. Voight, Esq.

LeBoef, Lamb, Leiby & MacRae 1333 New Hampshire Avenue, N.W.

IN RESPONSE REFER Washington, D.C. 20009 TO 87-A-28(86-682)

Dear Mr. Voight:

This letter responds to your May 27, 1987 appeal from a partial initial decision by the Nuclear Regulatory Commission's April 28, 1987 response to F0IA 86-682.

In response to your appeal, I affirm the agency's initial action.

The document listed on Appendix A is being withheld pursuant to Exemption (5) of the Freedom of information Act (F0IA). This document, which is a draft letter to the Department of Justice, contains predecisional legal analysis, opinion, and the recommendation of the staff and is also part of the agency's deliberative process. The purpose of the deliberative process privilege is to

" prevent injury to the quality of agency decisions." NLRB v. Sears Roebuck &

Company, 421 U.S. 132,~151 (1975). Disclosure of this predecisional document would " inhibit the frank discussion of policy matters and likely impair the quality of decisions" in inter-agency review. Ryan v. Department of Justice, 617 F.2d 781, 789 (1980). The withheld document contains no reasonably segregable factual information as any factual information is inextricably intertwined with exempt portions.

Finally, pursuant to 10 CFR 9.15 of the Comission's regulations, it has been determined that the information withheld is exempt from production or disclosure, and that its production or disclosure is contrary to the public interest.

This letter represents final agency action on your May 27, 1987 FOIA appeal.

Judicial review of the denial of this document is available in Federal District Court in the district in which you reside or have your principal residence or business, or in the District of Columbia.

Jincerely

...( k 5 Samuel J. :hilk Secretary of the Comission 87070B0201 870626 PDR FOIA VOIGHT87-A-28 PDR

o Appendix A 4/11/86 Draft letter from B. Hayes to V. Toensing regarding referrel (2 pages)

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P RESPONSE TO FgEOOM OF l I neTm (

O I INFORMATION ACT (FOIA) REQUEST

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DOCS [T NUMB ~tn $J oft oppVJllFW KlovESTsa ,

W /* / d/ N U U t f* D PdRT G RECORDS AELEASED OR NOT LOCATED (See checaev conest No agency records sub,ect to the request have been located No todetons' agency records subsect to the request have been located.

Agency recoros subsect to the request that are identifed in Appendia are already avasiable for pubhc mapection and copying m the NRC Public Document %om, 1717 H Street N W., Washington, DC Agency recoros sutnoct to the roovest that are adentifed in Appendia N are bemg made available for public inspection and copying m the NRC Public Doc ~ent Rcom.1717 H Street, N W,, Washmgton. DC, m a folder under the FOlA number and requester name I'

The nonpropretary versen of the proposaNsl that you agreed to accept m a telephone conversation wrth a member of my staff a now being made svadable for public W. son gnd coying at the NRC Public Document Room.1717 H Street, N W , Washington, DC, an a folder under the FOIA number and roovester name.

Enclosed e information on how you may obtain eccess to and the charges for copymg records placed m the NRC Pubisc Document Room,1717 H Street, N W., Washingto* DC.

Agency r6 corps subject to the request are enclosed Any applicable charge for copes of the records provided and payment procedures are noted in the comments sector Ascords subsect to the request have been referred to another Federal agencyhesi for reven and direct response to you In won of NRC's response to the request, no further action is bang taken on appealletter dated PART ll.A-fNFORMATION WITHHELD FROM PUBLIC DISCLOSURE Cert:m mformaton in the requested records a being wrthheld from public disclosure pursuant to the FolA emoniptsore described en and for the reasons stated in Part II, sec-teons B. C. and D. Any released portions of the documents for whsCh only part of the record 4 bemg withheld are bemg made available for publiC enspectson and copying e the NRC Pubhc Document Room.1717 H Street, N.W., Washmoton, DC, an a folder under ths FOlA number and requester name.

Comments

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U CEE. DOM Of: INFOT.MATION ACT RESPONSE q s L'A NUMBERtS' b-6 OATE {pg j h g7 PAMT 10 B- APPLICABLE FOIA EXEM'PTIONS ,

hcords subrect to the request that are described in the enclosed Appendices b are bemg ethheld in their entirety of in part under FOiA Enzmptsor$ and for the reasons set forth below pursuant to 5 U.S C. %2ttA and 10 CFR 9 5(a) of NRC RegJations.

t The wrf** eld informaton 4 property Classified pursuant to Esecuffve Order *2356 (EXEMPTION 11 2 The e* held information reis&s solely to the critemal personnel rules and D'ocedures of NRC. IEXEMPTION 2 I

3 The wt-held information is spece6cally esempted from public disclosure bv s:stute end.cated (EXEMPTION 36 Sectaon 141-ta5 of the Atorruc Energy Act which prohibits the disclosu re of Restncted Data or Formerly Restric*ed Data 442 U S C. 21612165L

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Sectson 147 of the Atomac Energy Act which prohetnis the d$ closure of Unclassified Safeguards informaton la2 g $ C 2167$,

4. The eteeid information a a trade secret or commercial or fenancial mformation that s being withheld for the reesc*si mdicated. lEXEMPTiON 4)

The otormation a consedered to be confedential business (propretaryl erdormation.

The rformaten a considered to be propretary mformat on pu suant r to 10 CFR 2.790(d)(1L The enformation was submitted and receeved in confidence from a foreign source pursuant to 10 CFR 2 7904d> 2

$. The wthheld information consists of mteragency or mtraagency records that are not evallable through dscovery duneg latigation. Osclosure of predecisionalinformaten would tend to mhebit the open and frank enchange of ideas essentsal to the dehberative process Where records are withheid in theer entirety. the facts afe mentricably entertwined with the edecisenal mtormaton. There also are no reasonably segregable factual portions because the resease of the facts would permit an indirect anguiry into t e predecsonal process of the egency. (EXEMPTION 5s

6. The wthheld information a esempted from pubhc disclosure because its dsclosure would result in a clearly unna~ anted invasion of personal pnvecy. (EXEMPTION 61

2. The wrthheld linformaten Consists 3f sevestegatory records Compiled for law enforcement purposes and is being WWeld for the reason (s) indicated. IEXEMPTION 7 Disclosure would eterfere wfth an enforcement proceedmg because et could reveal the scope, direction, and focus of enforcement efforts and thus Could possgn allow them to take action to shield potential wrongdomg or a vclaf@n of NRC r#Querements from inves gators (EXEMPTION 7t AD Doctor,ure would constitute an unwarranted evason of personal privact iEXEMPTION 7tCil The siformaten Consats of names of mdeveduals and other mformation the dsclosure of which would reveal noeet$es of confidental sources. (EXEMPTION 7(DH PART la C-DENylNG OFFICIALS Pursuant to 10 CFR 9 9 and/or 915 of the U S Nuclear Regulatory Commason regulatons. It has been determmed that the er'formaten withheid a esempt from producten or darlosure, rnd that its producten n

of disclosure a contrary to the puche interest. The persons responsible for the denial are those offic. ins scentifed below as denymg officials and the Director.

Divcon of Ru es and Records, Offce of Admmstraten, for any denials that may be appealed to the Enecutive Director for Operations IEDoi DENYaNG OFFICtAL TITLE OFFICE , RECORDS DENIED APPELLATE OFFICIAL M --

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PART 81 D- APPEAL RIGHTS The denial by each denying officialidentified in Part it.C may be appealed to the Appellate Official identified in that section. Any such appeal must be in wrrting and must be made withen 30 days of receipt of this response. Appeals must be addressed as appropriate to the Executive Director for Operations or to the Secretary of the Commismon, U.S. Nuclear Regulatory Commission, Washington, DC 20556, and should clearly state on the envelope and in the letter that at is an " Appeal from an Wtial FOIA Decrsion."

senc comu au (Pwt al casi U.S. NUCLEAR REGULATORY COMMISSION FOIA RESPONSE CONTINUATION

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APPENDIX 1 RECORDS MAINTAINED IN THE POR UNDER THE ABOVE REQUEST NUMBER NUMBER DATE DESCRIPTION W" ""pjfp /3LV xs A6 9-) r-rIrp

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RECORDS TOTALLY WITHHELD-NUMBER DATE DESCRIPTION & EXEMPTION

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n n Q) V LEBOEUF, LAME, LElBY & MAc RAE A PARTV4R$ HIP INCLUQ1NQ PRQF($$1QNAL CORPQRAtlONS 133 3 NEw H AM PSHIRE AVENUE, N.W.

WAT HINoTON DC 20036 (202) 457 7500 i T ELEX. 440274 F AC S I M I L E: 202 457 7518 gA LT L A n t CITY, UT SOUTM PO R T, CT RALEIGM, N C AL B A N f, N Y SAN FR A NCISCO, CA N E WAR M, NJ L t2OE UF. L AM B. L EIS Y & MacRAE (UM) E DISON, NJ LON DON, ENGL AN D September 12, 1986 Director, office of Administration StEEDOM OF INFORMATION U.S. Nuclear Regulatory Commission ACI REQUEST Washington, D.C. 20555 g Re: A46- 6x

Dear Sir:

Freedom of Information Act Request v  % & 9-/E-M Attached hereto is a memorandum to the Commissioners from Ben B. Hayes, Director, Office of Investigations, dated April 11, 1986. This document states that a copy of the Report of Investigation of Individual Operator Actions Concerning the Falsification of Leak Rate Test Data (1-84-022) was forwarded to the Department of Justice for possible action regarding certain operators who were the subject of that report.

Pursuant to the Freedom of Information Act, 5 U.S.C.

S 552 (1982) and 10 C.F.R. S 9.8 (1986), I hereby request copies of:

1) correspondence, memoranda, or other documents to l or from the Department of Justice and the Nuclear Regulatory Commission relating to this referral to the Department of Justice; and

2) all telephone logs, memoranda, notes or other documents reflecting conversations between the Department of Justice and the Nuclear Regulatory Commission regarding the same.

I agree to pay up to $50 for copies of these materials. If the charges exceed that amount, please contact Marlene Stein at 457-7500 to receive authorization for additional amounts.

Very truly yours, w, u v4 l

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Attachment

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I Q UNITED STATES NUCLEAR REGULATORY COMMISSION

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April 11,1986 MEMORANDUM FOR: Chaiman Palladino Commissioner Roberts Commissioner Asselstine Commissioner Bernthal Comissioner 79 FROM: y , r Office of Investigations

SUBJECT:

THREE MILE. ISLAND NUCLEAR GENERATING STATION, UNIT 2:

INVESTIGATION OF INDIVIDUAL OPERATOR ACTIONS CONCERNING THE FALSIFICATION OF LEAK RATE TEST DATA (1-84-022)

Enclosed is a Report of Investigation concerning the captioned subject. At the Commission's direction, the staff reviewed all available material and infomation concerning the falsification of Reactor Coolant System (RCS) leak rate test data at TMI-2. Based on that review, 0I was requested to conduct an investigation of ten individuals who hold or held NRC Reactor Operator or Senior Reactor Operator licenses at NRC licensed facilities to aid in deter-mining whether licensing action should be taken regarding these individuals.

In keeping with the Commission's directive, this investigation diinot delve into issues of corporate and management responsibility, in that those issues were adjudicated and considered resolved as a result of the action taken by the Department of Justice. As such, this investigation was structured to address the narrow issue concerning the involvement of individually licensed operators in the manipulation of the RCS leak rate tests. To properly under- i stand the background and history of this subject, it is recommended that this-Report be reviewed in conjunction with O! Case No. 1-83-010, which was issued on August 15, 1984.

The investigating agent has concluded that Booher, Cooper, Congdon, and Olson were involved in the intentional manipulation of test results. This headquar-ters is in complete agreement with the agent's conclusions regarding these individuals. With respect to Miller, however, the investigating agent felt that there was insufficient direct evidence to prove that Miller was aware of or involved in the manipulation of leak rate tests. The agent's conclusion notwithstanding, a review of the testimony and documentary evidence by head-quarters indicates a compelling weight of evidence to support a conclusion that Miller was at least aware of the manipulation of test results taking place on his shift, if not actually involved in them in a supervisory capacity.

While there is some evidence indicating that Illjes, Faust, Frederick, McGovern,  !

and Guthrie were involved in test irregularities or took actions which n

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O O The Commission 2 April 11,1986 invalidated test results, there is insufficient evidence for the case agent or this headquarters to reach a conclusion as to their involvement in the intentional manipulation of tests.

In addition to the issue of actual manipulation of leak rate tests, there were reasonable grounds to believe that Booher, Cooper, Olson, Miller, and Illjes made willful material false statements during the NRC investigation. It is, therefore, our intention to provide a copy of this Report to the Department of Justice for prosecutive consideration relative to Title 18 USC 1001 and Section 223(a) of the Atomic Energy Act.

In conjunction with this investigation, the staff prepared detailed evaluation reports and recommendations for these individuals based on the investigative findings. The staff's conclusions are consistent with those of OI.

Neither this memorandum nor Report may be released outside the NRC without the permission of the Director 01.

Enclosure:

As stated cc w/ encl:

L 4. Stello, Jr. EDO (3)

C. White, 01:RI T. Murley, RI i

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