ML003775934
| ML003775934 | |
| Person / Time | |
|---|---|
| Issue date: | 01/16/2001 |
| From: | Paperiello C NRC/EDO |
| To: | Harrell J Numerical Applications |
| References | |
| FOIA/PA-2000-0351, FOIA/PA-2001-001A | |
| Download: ML003775934 (3) | |
Text
January 16, 2001 Mr. Jim Harrell General Manager - East Coast Numerical Applications, Inc.
1210 SE Maynard Road IN RESPONSE REFER Suite 202 TO FOIA/PA 2001-001A Cary, NC 27511 (FOIA/PA 2000-0351)
Dear Mr. Harrell:
I am responding to your letter of October 19, 2000, in which you appealed Ms. Carol Ann Reeds response of October 10, 2000, to your Freedom of Information Act (FOIA) request (FOIA-2000-0351). Ms. Reeds response denied release of the source code for the RADTRAD computer code.
Acting on your appeal, I have carefully reviewed the record in this case and have determined that the source code will continue to be withheld from public disclosure pursuant to Exemption 2 of the FOIA (5 U.S.C. 552(b)(2)) and 10 CFR 9.17(a)(2) of the Commissions regulations because releasing it would circumvent agency regulations.
In response to your concern, Exemption 2 of the FOIA is not used solely to protect internal personnel rules and procedures. An additional category of information covered by Exemption 2 includes documents of a more substantial nature and used for predominantly internal purposes, the disclosure of which would risk the circumvention of a statute or agency regulation. Windels, Marx, Davies & Ives. v Dept of Commerce, 576 F. Supp. 405, 411-414 (D.D.C. 1983)
(protecting computer program used by regulatory agency under Exemption 2).
The RADTRAD code, including its source code are used predominantly by NRC for internal agency purposes because the code is an essential part of the agencys regulatory program.
Specifically, the code is used by NRC staff to independently confirm licensee safety analyses in accordance with 10 CFR Part 100. NRC only releases the RADTRAD code, including its source code, to interested members of the public for a fee, and requires the code recipient to sign a code release agreement which among other terms, prohibits further distribution of the code without NRCs permission. Recipients of the code are required under the code release agreement to report errors to the NRC so that errors can be corrected. Uncontrolled release of the RADTRAD code would compromise the NRCs ability to independently confirm licensee safety analyses and to promulgate error corrections to users, and could expose the agency to liability for uncorrected errors in RADTRAD that result in safety problems. Accordingly, uncontrolled access to the code by licensees regulated by NRC would create a significant risk that agency regulatory efforts will be thwarted as the agencys ability to perform independent confirmatory safety analyses would be undermined.
Mr. Harrell For the remainder of your October 19, 2000, letter, please note that a FOIA request must describe records or documents sought. FOIA neither requires an agency to answer questions or to create documents or opinions in response to an individuals request for information.
Hudgins v. I.R.S., 620 F. Supp. 19, 21 (D.D.C. 1985).
This is a final agency decision. As set forth in the FOIA (5 U.S.C. 552(a)(4)(B)), judicial review of this decision is available in a district court in the United States or in the district in which you reside or have your principal place of business or in the District of Columbia.
Sincerely,
/RA/
Carl J. Paperiello, Deputy Executive Director for Materials, Research and State Programs
Mr. Jim Harrell General Manager - East Coast Numerical Applications, Inc.
1210 SE Maynard Road IN RESPONSE REFER Suite 202 TO FOIA/PA 2001-001A Cary, NC 27511 (FOIA/PA 2000-0351)
Dear Mr. Harrell:
I am responding to your letter of October 19, 2000, in which you appealed Ms. Carol Ann Reeds response of October 10, 2000, to your Freedom of Information Act (FOIA) request (FOIA-2000-0351). Ms. Reeds response denied release of the source code for the RADTRAD computer code.
Acting on your appeal, I have carefully reviewed the record in this case and have determined that the source code will continue to be withheld from public disclosure pursuant to Exemption 2 of the FOIA (5 U.S.C. 552(b)(2)) and 10 CFR 9.17(a)(2) of the Commissions regulations because releasing it would circumvent agency regulations.
In response to your concern, Exemption 2 of the FOIA is not used solely to protect internal personnel rules and procedures. An additional category of information covered by Exemption 2 includes documents of a more substantial nature and used for predominantly internal purposes, the disclosure of which would risk the circumvention of a statute or agency regulation. Windels, Marx, Davies & Ives. v Dept of Commerce, 576 F. Supp. 405, 411-414 (D.D.C. 1983)
(protecting computer program used by regulatory agency under Exemption 2).
The RADTRAD code, including its source code are used predominantly by NRC for internal agency purposes because the code is an essential part of the agencys regulatory program.
Specifically, the code is used by NRC staff to independently confirm licensee safety analyses in accordance with 10 CFR Part 100. NRC only releases the RADTRAD code, including its source code, to interested members of the public for a fee, and requires the code recipient to sign a code release agreement which among other terms, prohibits further distribution of the code without NRCs permission. Recipients of the code are required under the code release agreement to report errors to the NRC so that errors can be corrected. Uncontrolled release of the RADTRAD code would compromise the NRCs ability to independently confirm licensee safety analyses and to promulgate error corrections to users, and could expose the agency to liability for uncorrected errors in RADTRAD that result in safety problems. Accordingly, uncontrolled access to the code by licensees regulated by NRC would create a significant risk that agency regulatory efforts will be thwarted as the agencys ability to perform independent confirmatory safety analyses would be undermined.
ML003775934 To receive a copy of this document, indicate in the box: "C" = Copy without enclosures "E" = Copy with enclosures "N" = No copy OFFICE FOIS FOIA/PA Off RES OGC DEDMRS NAME MJPool /RA/
CAReed A Thadani R Baum CPaperiello DATE 12/21/00 01/ /01 01/ /01 1/3/01 1/11/01 OFFICE NAME DATE 01/ /01 01/ /01 01/ /01 01/ /01 01/ /01