ML19294B599
| ML19294B599 | |
| Person / Time | |
|---|---|
| Issue date: | 01/24/1980 |
| From: | Bickwit L NRC OFFICE OF THE GENERAL COUNSEL (OGC) |
| To: | |
| Shared Package | |
| ML19294B552 | List: |
| References | |
| FOIA-78-143, FOIA-78-A-21, REF-10CFR9.7, TASK-CC, TASK-SE SECY-79-296, SECY-79-296A, NUDOCS 8003050128 | |
| Download: ML19294B599 (2) | |
Text
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UNITED STATES NUCLEAR REGULATORY COMMISSION WASHINGTON, D. C. 20555
' ' ' ' ~ " ~ * *
- CONSENT CALENDAR ITEM For:
The Commissioners From:
Leonard Bickwit, Jr.
General Counsel
Subject:
FIALKA FOIA APPEAL 78-A-21 Purcose:
To propose denial of the appeal.
Discussion:
In a previous paper on this appeal (SECY-79-296, ) we discussed the substance of Mr. Fialka's FOIA request and appeal, and recommended denial of the appeal.
Commissioner Bradford disapproved, noting that it did "not appear that the CIA has unequivocally determined that all the material proposed to be withheld is properly classified as National Security Information".
He suggested that representatives of NRC and CIA review this matter.
Since the document at issue (Volume III of the Inquiry into the Testimony of the EDO) had originally been reviewed for classified material by the CIA, the Division of Security requested that the CIA re-examine the deletions made in their initial review for proper classification.
By memorandum of Raymond J.
Brady dated January 11 (Attachment 2), we have been informed that the CIA has completed this review, and has concluded that previously-withheld material continues to be classified and should be withheld from public disclosure.
Commissioner Bradford also questioned whether the NRC would be legally bound by the CIA's determination.
The Freedom of Information Act (viz. Exemption 1) states only that withheld material must be " properly classified pursuant to (such] Executive Order", currently Executive Order 12065.
In strict legal terms, each agency could make an independent determination of whether information in its CONTACT:
possession was in fact " properly classified" WilliamShields(OGC) by another agency.
43215 NOTE TO COMMISSIONERS:
SECY-79-296A summarizes recent events relative to the Fialka appea.l. Votes previously cast will remain in effect unless changed.
The vote presently stands at 3-2 for denial of the appeal.
The paper will be scheduled for affirmation during the week of February 4.
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The Commissioners 2
In practice, however, the NRC and other agencies handling classified information defer to one another's determinations, particularly when the classifying agency possesses special knowledge or expertise on matters of national security.
This practice prevents the possibility of release of national security information based upon unawareness of its sensitivity, and also avoids " agency-shopping" by FOIA requesters.
The NRC, of course, expects other agencies to defer to its classifications on matters within NRC expertise.
We recommend that this practice be continued, and hence that the appeal be denied based upon the review of the CIA.
The draft response to Mr. Fialka (Attachment 3) reflects this recommendation.
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Leonard Bickwit, Jr. I!
General Counsel Attachments:
1.
SECY-79-296 2.
Memorandum, Brady to Chilk 3.
Draft letter Commissioners' comments or consent should be provided directly to the Office of the Secretary by c.o.b. Thursday, January 31, 1980.
Commission Staff Office coments, if any, should be submitted to the Commissioners NLT January 29, 1980, with an information copy to the Office of the Secretary.
If the paper is of such a nature that it requires additional time for analytical review and comment, the Commissioners and the Secretariat shcald be apprised of when comments may be expected.
This paper is tentatively scheduled for affirmation at an Open Meeting during the Week of February 4, 1980.
Please refer to the appropriate Weekly Commission Schedule, when published, for a specific date and time.
DISTRIBUTION Comissioners Commission Staff Offices Exec Dir for Operations Secretariat