ML19246A313
| ML19246A313 | |
| Person / Time | |
|---|---|
| Site: | Crane  |
| Issue date: | 04/14/1979 |
| From: | Bickwit L NRC OFFICE OF THE GENERAL COUNSEL (OGC) |
| To: | Gilinsky V, Hendrie J, Kennedy R NRC COMMISSION (OCM) |
| References | |
| NUDOCS 7906070016 | |
| Download: ML19246A313 (7) | |
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NUCLEAR REGULATORY COMMIMION
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WASHINGTON, D. C. 20555
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g April 14, 1979 i
MEMORANDUM FOR:
Chairman Hendrie i
Commissioner Gilinsky i
Commissioner Kennedy y
Commissioner Bradford h
Commissioner Ahearne J O' Leonard Bickwit, Jr., General Counsel FROM:
SUBJECT:
FREEDOM OF INFORMATION ACT REQUESTS FOR D.0CUMENTS CONCERNING THREE MILE ISLAND The Commission has received a number of requests for docu-ments relating to Three Mile Island under the Freedom of Information Act.
Attached is a copy of an April 4, 1979 request from Tony Roisman asking for "all documents and communications of any kind" relating to Three Mile Irland.
The purpose of this memorandum is to outline the ex?. sting situation with respect to Three Mile Island FOIA requests and make tentative recommendations about how the Commission might respond to them.
Deadlines.
Under our regulations (10 CFR Part 9, Subpart A)
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we normally have 10 working days in which to respond to an F.0IA request.
We understand that the Roisman request was the first comprehensive request and that it was received on April 5.
This means that some response is due on April 19, 1979, 10 working days after date of receipt.
The statute contemplates that extension of time to locate, assemble, and reproduce records may be granted in exceptional circum-I stances and that will undoubtedly be: the case as to some documents covered by these TMI requests.
However, the offices have ready at hand now a fairly substantial number of documents that are in the process of being assembled.-
Accordingly, the Comm$ssion should schedule its considera-tion of this matter in such a way as to reach policy deci-i l
sions on at least some of these documents by the middle of the week.
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James L. Kelley, OGC 227 CONTACT:
4-3224 Stephen F. Eilperin, OGC 4-1465 790607001(s James A.
Fitzgerald, OCC 4-3288 9^
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The Commission 2
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Materials Subject to the Request.
The definition of
" record" in our regulations (9.3a(b)) is derived from the
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statute and case law and is very broad.
It is as follows:
(b)
" Record" means any book, paper, map, photograph, brochure, punch card, magnetic tape, paper tape, sound recording, pamphlet, slide, motion picture, or other documentary material regardless of form or characteris-tics, made by, in the possession of, or under the control of the NRC pursuant to Federal law or in connection with the transaction of public business as. evidence of NRC organiza-tion, functions, policies, decisions, pro-cedures, operations, programs or other activities.
As a practical matter, this will include most of what is on paper or tape about 'he Three Mile Island incident.
It would include, for example, drafts of press releases, legal advice, some notes of telephone conversations and the like.
Present Status of Resoonding to Reouests.
As an established practica, all FOIA requests are coordinated by Joe Felton's
' Rules and Records Division.in the Office of Administration.
As requests are received, they are distributed to cognizant staff and Commission offices, with a request that materials the offices have no objection to releasing be transmitted to Rules and Records.
If a particular office believes l
(1) that a particular document is legally exempt from dis-closure and (2) that an exemption should be claimed, it normally keeps those records in its files.
With respect to the Three Mile Island records, Joe Felton's l
office sent a request out yesterday that they be identified, assembled, and transmitted to him.
As of t aday, no signifi-cant volume of records has been.sent to him.
However, he
-anticipates that a substantial volume of records should come to him shortly.
Joe Felton is aware of the Commissioners' interest in this question.
We have an understanding with him that he will not release any documents until there has been further consultation.
Examoles of Three Mile Island Documents.
We are not now in a position to give you evan an approximate list of the kinds of documents that are covered by this request.
However, on 227 300
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... 3 the basis of discussions with staff, we know that the
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following documents exist:
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Copies of interviews with the Met Ed operating j
people at TMI; I
2.
Logs of telephone calls at the incident response center and at Region I; 3.
Chronolog'ies of events.
In addition, a very lengthy tape recording exists from a machine that was runnir.g for several days at the incident p
response center.
This tape has not yet been transcribed and obviously it would take some time to do that.
- However, we think the law obliges us to make a transcription as soon as we reasonably can in order to review it for possible exempt material.
Possible Bases for Withholding.
It is difficult to discuss possible bases for withholding in the abstract.
To do a i
proper review it is necessary to look at this material i
page-by-page and even line-by-line to determine whether it can legally be withheld.
However, based on our limited
.present knowledge, we can indicate probable bases for withholding.
Exemotion 4 -- Proprietary Information.
This exemption provides for the protection of " trade secrets and commercial or financial information obtained from a person and privi-leged or confidential."
Commercial or financial information is confidential "if the disclosure of the information is i
'ikely to have either of the following effects:
(1) to impair the government's ability to obtain the necessary information in the future; or (2) to cause substantial harm to the competitive position of tha person from whom the information was obtained."
National Parks v. Morton, 498
'F.2d 765, 770 (D.C. Cir. 1974).
Exemption 5 -- Internal Advice and Recommendations.
This exemption will certainly apply to some of the TMI material l
-- e.g. a note from a legal or technical assistant to a Commissioner urging some course of action.
However, the plain language of this exemption -
" interagency or intra-agency memoranda or letters which would not be available by 227 301 e
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law to a party other than an agency in litigation with an i
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agency" -- 1.s the least clear of the exemptions and, there-fore, has been the subject of much judicial interpretation.
Among the matters covered by exemption 5 are the attorney
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work-product privilege, the attorney-client privilege, and the executive privilege (which protects advice, recommenda-tions, and opinions which are part of the delibe '*tve, consultative, decision-making processes of goverm_ent).
"The basis of Exemption (5), as of the privilege which antedated it, is the free and uninhibited exchange and communication of opinions, ideas, and points of view -- a process essential to the wise functions of a big government as it is to any organized human effort."
Acherly v.. Ley, 420 P.2d 1336, 1341 (D.C. Cir. 1969).
There is a distinc-tion between predecisional documents, which are protected, and postdecisional documents, which are not protected, NLRB v. Sears Roebuck & Co.,
421 U.S. 132 (1975).
In applying Exemption 5, the focus is on the content of the document and a critical distinction is whether the matter contained in the document is " factual" or " deliberative".
See Montrose Chemical Corp. v. Train, 491 F.2d 63, 66 (D.C. Cir. 1974).
Generally, factual material must be disclosed, and if contained in deliberative materials and easily severable, the factual matter must be segre-gated out for disclosure.
EPA v. Mink, 410 U.S.
73
'(1973).
However, another determination must also be made --
whether disclosure of the factual portion would harm the deliberative process either by " compromising the private remainder of the document", EPA v. Mink, supra at 91, or by subjecting "the mental processes of decisionmakers to public scrutiny."
Montrose Chemical Corp., supra at 70.
Examples of the types of documents usually withholdable under this exemption are:
preliminary drafts of memoranda, speeches, press releases, etc.; notes from assistants to Commissioners or notes between Commissioners recommending courses of action; and ELD and OGC memoranda to their i
respective clients.
Exemntion 6 -- Invasions of Personal Privacy.
This exemption applies to " personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy."
Application of this exemp-i tion requires the balancing of interests between the pro-tection of an individual's private affairs from unnecessary public scrutiny, and the preservation of the public's right to government information.
S. Rept. No. 813, 89th Cong.,
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1st Sess. (1965) at 9.
This could be applicable to a few isolated instances where specific individuals may be criticized by name in documents.
Where it is possible to delete personally identifying details, this should be done l
_along with disclosure of the remainder.
t Exemption 7 -- Investigative Records.
This exemption sets up a threshold -
" investigatory records... compiled for law enforcement purposes" -- and an additional test requiring a relationship of such records to one of six specifically enumerated harms.
The,I&E investigation which is being conducted for the expres's purpose of gathering facts for determination of possible enforcement action should qualify for meeting the threshold.
Moreover, it appears that pro-duction of I&E investigatory records would probably " inter-fere with enforcement proceedings," the first of the six additional tests mentioned by the statute.
The Supreme Court in NLRB v. Robbins Tire & Rubber Comoani, U.S.
, 57 L.Ed. 159 (1978), upheld the withholding of pre-hearing witness statements taken for NLRB unfair labor practice proceedings on this ground.
Among the risks of " interference" identified by the Court were possible coercion of employees and others who provide statements, the possible reluctance to give a statement unless it will be withheld until completion of the enforce-ment proceeding, and the ability of a suspected violator with advance access to the agency's case to " construct defenses which would permit violations to go unremedied."
While Robbins Tire is an NLRB case, its rationale appears applicable to an NRC enforcement proceeding.
If the contents of witness statements were prematurely disclosed, an employee 1
or union could attempt to induce a change in the statement, there could be an inclination te adhere to a " party line",
and the direction of an enforcement effort could be disclosed.
On the other hand, witnesses may 'oe willing to talk frank'ly, even without an assurance of confidentiality, if they know
'that their statements will only be made public months later and not in the emotion-charged immedia e aftermath of the event.
I Portions of the NRC Special Inquiry could also be subject to withholding under this exemption if they begin to take on the stamp of a criminal inquiry or enforcement action.
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TENTATIVE RECOMMENDATIONS t
1.
Uniform Commission Policy.
Under the regulations, decisions to withhold or release staff papers are made by staff offices, subject to an appeal to the EDO.
Commis-sion office papers are reviewed by Commission offices, subject to appeal to the Commission itself, In the cir-cumstances of this case we think there should be a uniform Commission policy on release of all TMI documents.
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2.
ProcedNre for RevieT4.
Because of the likely bulk of these documents, we do not think that the Commissioners themselves should seek to review them all, page by page.
Rather, we think that the usual procedures specified in Part 9 of the regulations should be employed, or alterna-tively, that a specific office be given the job and directed to apply Commission guidance as uniformly as possible.
Our tentative view favors employing usual Part 9 procedures with the caveat that if a particular office
.is inundated with other tasks, such as'the Division of Operating Reactors, then that office's FOIA responsibili-
' ties should be shunted to a less burdened office.
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227 304
. Natural -ou..rces Defense Council)Inc.~~
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Western Ofes New York Ofice 2345 YAtz sTxtrr
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l PLEASE REFER TO:
A3R/NRC/79/2 FREEDOM OF INFORMATION r
Freedom of Information Officer ACT REQUEST U.S. Nuclear Regulatory Commission FOZA-77-9f Washington, D.C.
20555
Dear' Sir or Madam:
k 'd 4-5-7 9 Pursuant to the Freedom of Information Act, 5 U.S.C.
S 552, please supply me with all documents and communica-tions of any kind received,by or in the possession of the Nuclear Regulatory Commission relating to the Three Mile Island Unit 2.
Please include all letters, memoranda, reports, and summaries or minutes of meetings concerning this subject from March 27, 1979, to the date of response to this request.
We need this information as soon as oossible, and no extensions of time can be allowe.l.
Thank you for your attention to this request.
Since, rely,
%thony Z./ R,olls; nan}
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if Sent By Hand To:
l J.M. Felton, Director Division of Rules and Records t
office of Administration' Nuclear Regulatory Commission 7735 Old Georgetown Road (Md. Natl. Bank Bldg. )
Room 4210 Bethesda, Maryland 4 I q ?l,2
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