ML103200344
| ML103200344 | |
| Person / Time | |
|---|---|
| Site: | Callaway  |
| Issue date: | 11/04/2010 |
| From: | Daniel Shapiro Pillsbury, Winthrop, Shaw, Pittman, LLP, Union Electric Co |
| To: | Thadani M Office of Nuclear Reactor Regulation |
| References | |
| G20100592, OEDO-2010-0775 | |
| Download: ML103200344 (4) | |
Text
Pillsbury Winthrop Shaw Pittman LLP 2300 N Street, NW I Washington, DC 20037-1122 I tel 202.663.8000 I fax 202.663.8007 Daryl M. Shapiro tel 202.663.8507 daryl.shapiro@pillsburylaw.com Confidential Information Submitted November 4, 2010 Mr. Mohan C. Thadani Senior Project Manager Under 10 C.F.R. § 2.390 Office of Nuclear Reactor Regulation Nuclear Regulatory Commission One White Flint North, 8 G 14 11555 Rockville Pike Rockville, MD 20852-2738
Subject:
Request to Redact September 17, 2010 2.206 Petition Filed by Lawrence S. Criscione (ML102640674)
Dr. Mr. Thadani:
I am counsel for Union Electric Company d/b/a Ameren Missouri ("Ameren Missouri")
and write to request that the Nuclear Regulatory Commission ("NRC) immediately cease making publicly available any copy of the 10 C.F.R. § 2.206 petition filed by Mr.
Lawrence S. Criscione on September 17, 2010 ("Petition"). Should the NRC be required to make some version of the Petition public, I request that the NRC redact the names of certain Callaway Nuclear Generating Station ("Callaway") employees from any copy of the Petition made publicly available by the NRC.1 In addition, because this letter identifies the individuals whose 1ndentifying information should be redacted from the Petition, this letter also should be withheld from public disclosure.
In the Petition, Mr. Criscione requests, among other things, that the NRC "properly investigate[]" events that occurred on October 21, 2003 concerning Callaway plant operations. It is clear from the Petition that the alleged actions of two Callaway plant employees are the focus of the Petition. The employees are Mr. David Lantz, then a Callaway Shift Manager, and Mr. David Neterer, the then Callaway Operations Manager. The Petition also identifies two other Callaway employees, Messrs. Gerry Rauch and Lee Young.
1 The Petition is publicly available through the NRC website at ADAMS accession number ML102640674. The NRC may have made other copies publicly available through other sources.
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Mr. Mohan C. Thadani November 4, 2010 Page 2 of 4 In the Petition, Mr. Criscione levies multiple allegations against Messrs. Lantz and Neterer. One of the Petition's attachments levies allegations against Mr. Rauch. This letter will not address the merits of those allegations except to say that they are unfounded and damaging to the individuals' reputations. I have, previously discussed with you that Ameren Missouri will submit a written response to the Petition shortly after the Petition Review Board meeting scheduled for November 17, 2010.
This letter requests that the NRC take immediate action. Specifically, the NRC should immediately cease making the Petition publicly available in its current form. If the Petition must be made public, the NRC should redact from any copy of the Petition made publicly available the names of and other identifying information for Messrs.
Lantz, Neterer, Rauch, and Young. The Petition is now an NRC record, which the NRC has made publicly available through at least one means. Federal statute and controlling case law require that the NRC perform these redactions to its record.
Under the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552(b) (implemented in the NRC's regulations at 10 C.F.R. § 2.390), the NRC can be compelled to disclose agency records, or information contained in those records, unless one of nine FOIA exemptions applies. Conversely, in a "reverse-FOIA" action, the agency can be compelled not to disclose agency records, or information contained in those records, based on these same exemptions. See, e.g., United Technologies Corp. v. Dep't of Defense, 601 F.3d 557, 559 (D.C. Cir. 2010).
Here, two FOIA exemptions require that the names of and other identifying information for Messrs. Lantz and Neterer should be redacted from any publicly available copy of the Petition: FOIA Exemption 6, 5 U.S.C. § 552(b)(6), and FOIA Exemption 7(C), 5 U.S.C. § 552(b)(7)(c).
FOIA Exemption 6 FOIA Exemption 6, 5 U.S.C. § 552(b)(6), exempts from public disclosure all information about individuals in "personnel and medical files and similar files" when the disclosure of such information "would constitute a clearly unwarranted invasion of personal privacy." 5 U.S.C. § 552(b)(6). The U.S. Supreme Court has long held that "Congress' primary purpose in enacting Exemption 6 was to protect individuals from the injury and embarrassment that can result from the unnecessary disclosure of personal information." Dep't of State v. Washington Post Co., 456 U.S. 595, 599 (1982). Exemption 6 broadly applies to any and all "'detailed Government records on an individual which can be identified'to applying to that individual."' Id. at 602 (quoting FOIA's legislative history). Thus, "[w]hen disclosure of information which applies to a particular individual is sought from Government records, courts must 402442437v0
Mr. Mohan C. Thadani November 4, 2010 Page 3 of 4 determine whether release of the information would constitute a clearly unwarranted invasion of that person's privacy." Id.
The reputational damage Messrs. Lantz and Neterer will incur by continued publication of the Petition's unfounded allegations amount to a clearly unwarranted invasion of Messrs. Lantz's and Neterer's respective privacies. FOIA Exemption 6 protects against disclosure of information that would identify individuals who were the targets of unfounded allegations of wrongdoing because of the "substantial privacy interests" of the individuals. Carter v. Dep't of Commerce, 830 F.2d 388, 394 (D.C. Cir. 1987).
The public release of.unfounded allegations against Messrs. Lantz and Neterer "represents a severe intrusion on [their privacy interests] and should yield only where exceptional interests militate in favor of disclosure." Fund for Constitutional Gov't v.
National Archives, 656 F.2d 856, 865 (D.C. Cir. 1981). See also Carter, 830 F.2d at 394 ("such an invasion of privacy.., clearly outweigh[s] any generalized public interest" in disclosure). The mere assertion of the Petition's allegations (which shall not be repeated here) is damaging to Messrs. Lantz's and Neterer's reputations, in which they have an extremely heightened privacy interest. See Meuller v. Dep't of the Air Force, 63 F.2d 738, 745 (E.D. Va. 1999), citing Stern v. F.B.I., 737 F.2d 84, 91-92 (D.C. Cir. 1984).
Consequently, FOIA Exemption 6 requires that the NRC redact any information from the Petition that would identify Messrs. Lantz and Neterer as the subjects of the Petition's unfounded allegations.
FOIA Exemption 7(C)
FOIA Exemption 7(C), 5 U.S.C. § 552(b)(7)(C), exempts from public disclosure "records or information compiled for law enforcement purposes" that "could reasonably be expected to constitute an unwarranted invasion of personal privacy." Although Exemptions 7(C) and 6 are similar in scope and application, they differ in two respects.
Fund for Constitutional Gov't, 856 F.2d at 862. First, while Exemption 6 requires a "clearly unwarranted" invasion of personal privacy, Exemption 7(C) requires only an "unwarranted invasion" of personal privacy that "could reasonably be expected" to result from disclosure. Id. Thus, Exemption 7(C) provides broader privacy protections than Exemption 6. Id. Second, Exemption 6 applies to information contained in personnel or medical or similar files, whereas Exemption 7(C) applies to investigatory records compiled for law enforcement purposes. Id. at 863. Congress enacted the broader protection for investigatory records because "'an individual whose name surfaces in connection with an investigation may without more, become the subject of rumor and innuendo."' Id. (citation omitted).
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I Mr. Mohan C. Thadani November 4, 2010 Page 4 of 4 The privacy interest at stake with regard to investigatory records "is substantial" because "' [t]here is little question that disclosing the identity of targets of law enforcement investigations can subject those identified to embarrassment and potentially more serious reputational harm." Safecard Services, Inc. v. SEC, 926 F.2d 1197, 1205 (D.C. Cir. 1991) (quoting Senate of Puerto Rico v. DOJ, 823 F.2d 574, 586 (D.C. Cir. 1987). Consequently, FOIA Exemption 7(C) "'affords broad privacy rights to suspects, witnesses, and investigators."' Id. (quoting Bast v. DOJ, 665 F.2d 1251, 1254 (D.C. Cir. 1981)). For these reasons, the DC Circuit held that the "categorical withholding" of information that identifies third parties in law enforcement records is ordinarily appropriate. Id. at 1206.
Here, the Petition explicitly requests that the NRC "vigilantly investigate" the events. of October 21, 2003 and the alleged regulatory violations that occurred. The document is being reviewed under the NRC's 2.206 petition process, which may result in the NRC opening a full investigation into the allegations contained in the Petition. Accordingly, the Petition is a law enforcement record subject to FOIA Exemption 7(C). Thus, under the rationale explained in Safecard, there is a presumption sufficient to overcome any general public interest favoring disclosure that identifying information for suspects, witnesses, and other third parties mentioned in the record be categorically withheld from public disclosure.
Conclusion Because FOIA Exemptions 6 and 7(C) apply to the Petition, Ameren Missouri requests that that the NRC cease making the Petition publicly available in its current form, and that any identifying information for Messrs. Lantz, Neterer, Rauch, and Young be redacted from any copy of the Petition made publicly available by the NRC in the future. A copy of the Petition with proposed redactions is enclosed. In addition, because this letter identifies the individuals whose indentifying information should be redacted from the Petition, this letter also should be withheld from public disclosure.
Sincerely, D ~r.Shapiro Counsel for Ameren Missouri
Enclosure:
As stated 402442437vl