ML19294B506
| ML19294B506 | |
| Person / Time | |
|---|---|
| Issue date: | 02/26/1980 |
| From: | Dircks W NRC OFFICE OF NUCLEAR MATERIAL SAFETY & SAFEGUARDS (NMSS) |
| To: | Woliver J LEGAL AID SOCIETY OF CLERMONT COUNTY, OH |
| References | |
| FOIA-79-483 800226, FOIA-79-483-800226, FOIA-80-A-1 800226, FOIA-80-A-1-800226 NUDOCS 8003040340 | |
| Download: ML19294B506 (3) | |
Text
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- [t*'g ' g NUCLEAR REGULATORY COMMISSION UNITED STATES
- p WASHINGTON, D. C. 20555 8
\\j N p February 26, 1980 John Woliver, Esquire Legal Aid Society of Clermont County 550 Kilgore Street P.O. Box 47 IN RESPONSE REFER Batavia, OH 45103 TO F01A-80-A-1
Dear Mr. Woliver:
This is in response to your letter dated January 19, 1980, appealing Mr.
John C. Carr's, December 21, 1979, initial denial of your Freedom of Information Act (FOIA) request of November 5,1979. That request asked for a copy of the 1969 Sargent & Lundy Engineers (S&L) report to The Cincinnati Gas & Electric Company (CG&E) entitled, "An Economic Evaluation of Alternatives," associated transmittal letter, and companion summary report.
Acting on your appeal, I have carefully reviewed the record in this case relevant to the withheld material to which your appeal is directed.
I have determined that the material previously denied is exempt from compelled disclosure under exemption (4) of the Freedom of Information Act (5 U.S.C. 552(b)(4)) and 10 CFR 9.5(a)(4) of the Commission's regulations because the material contains confidential business (proprietary) information, and that disclosure of such information would be contrary to the public interest.
Your appeal with regard to the presiously withheld material is, therefore, denied.
Your appeal letter enumerated several arguments as to why the requested documents should not have been withheld from you.
More specifically, you stated (1) that an agreement of confidentiality alone is not sufficient grounds to exempt a document from disclosure, (2) that CG&E as a monopoly cannot have a competitive position that would be harmed by disclosure of the documents in question, and (3) that the Nuclear Regulatory Commission (NRC) would not be impaired from receiving similar information in the future from CG&E because it could have required the production of the requested documents.
The law is clear thL the confidentiality of a document must be based upon the contents of said document and not upon an agreement or promise that said documents will remain confidential.
For this reason, the NRC contacted CG&E as indicated in Mr. John C. Carr's December 21, 1979 letter and received written verification as to the continued proprietary nature of the documents in question.
Additionally, qualified members of 8008040
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the NRC staff have independently reviewed the S&L reports involved.
It is their conclusion that these reports contain such information as detail design parameters of the nuclear steam supply system (NSSS),
nuclear fuel supply proposals, cost data, methods for evaluating and comparing a large number of alternatives, drawings, etc. which could currently be quite useful to competing NSSS vendors, fuel supply vendors, architect and engineering firms, and consultants.
Thus, the contents of the documents and not the pledge of confidentiality supplies the basis for my decision to withhold.
Turning to, )ur second argument, you failed to address the possibility that even a monopolist can have a competitive position in relation to activities outside of his area of monopoly.
This possibility formed the basis for the court in National Parks and Conservatio.. Association v.
Morton, 498 F.2d 765, 770 (D.C. Cir.1974)
Morton
- to reject the no competition argument and allow the monopolist an opportunity on remand to address the question of substantial harm to his competitive position.
Similarly, in the case at hand, CG&E has substantiated that the documents in question were developed and used by them in relation to their procurement process for purchasing goods and services.
Accordingly, based on the above, I made my determination that the documents in question are proprietary and should be withheld from public disclosure.
Since these two points are independently sufficient for my determination I will not elaborate further on your third argument.
However, I concur in the withholding argument expressed in Mr. John C. Carr's letter of December 21, 1979, and I note that there is a difference in the Morton case between " required" information and information that could have beer.
" req ui red".
Lastly, on appeal you urge that the non-exempt portions of the documents requested be released to you.
In this regard, CG&E was asked by us to review the documents to determine if non-proprietary portions could be separated from the reports in question.
They have indicated to us that the proprietary information is so inextricably intertwined with non-proprietary information as to make it impossible to accomplish what you suggest.
The NRC staff reviewing those documents reached a similar conclusion.
My review leads me to the same conclusion.
This determination to withhold from public disclosure the documents previously withheld in Mr. John C. Carr's December 21, 1979 letter is a final agency action.
As set forth in the Freedom of Information Act (5 U.S.C. 552(a)(4)(B)), judicial review of this decision is available
in a district court of the United States in either the district in which you reside, have your principal place of business or in the District of Columbia.
Sincerely, d-William J. Dircks Acting Executive Director for Operations
.