ML19294B602
| ML19294B602 | |
| Person / Time | |
|---|---|
| Issue date: | 04/27/1979 |
| From: | Kelley J NRC OFFICE OF THE GENERAL COUNSEL (OGC) |
| To: | |
| Shared Package | |
| ML19294B552 | List: |
| References | |
| FOIA-78-A-21, REF-10CFR9.7, TASK-CC, TASK-SE SECY-79-296, NUDOCS 8003050133 | |
| Download: ML19294B602 (6) | |
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4 -- April 27,1979 SECY-79-296 UNITED STATES NUCt. EAR REGUt.ATORY COMMISSION CONSENT cal.END AR ITEM For:
The Commission From:
James L. Kelley, Deputy General Counsel
Subject:
Fialka FOIA Appeal 78-A-21 Purcose:
To propose denial of the appeal Discussion:
On May 12, 1978, John J. Fialka of the Washington Star made an FOIA request "for all deleted material frc= Volume III of
' Inquiry Into Testimony of the [ED0]'"
(FOIA 78-143, Attachment 1).
The report had been released with some classified deletions in February 1978.
The request was denied on August 7, 1978 (Attachment 2) under the FOIA exemptz ns for classified materials (5 U.S.C. 552(b)(1) and 10 CFR 9.5(a)(1)).
Mr. Fialka appealed on August 9, 197S (FOIA 78-A-21, Attachment 3) and recuested that his appeal be reviewed under the standards of the new Executive Order governing classification and declassifi-cation, E.O.
12065.
The CIA indicated on February 9, 1979 its determination that the deleted portion would remain classi-fled under E.O.
12065 On March 15, 1979, the Division of Security deter-mined that the deleted pertion remained classif'ed. _1/
1/
This appeal has had an extended history.
Shortly after his appeal was received, Mr. Fialka was infcrmed by telephone that the new E.O.
governing declassificatien would not become effective until December 1, 1973, and that before then the Commission wculd be ccund to apply the standards in the old E.C. 11651.
Mr. Fialka indi-cated that he would reconsider his appeal.
On Ictcber 25, (Continued on following page)
Contact:
Richard Mallory, CGC 63t-it65
2 All of the material classified is derived from a classified CIA briefing and has been classified by CIA or by NRC on the understanding that CIA wanted the material classified.
CIA has reviewed the document and determined that "the CIA information denied to the requester in the initial response should continue to be denied."
Moreover, the Commission is without dis-cretion to declassify the material classi-fled by the CIA.
So long as the requested material is classified, it is exempt from release under the FOIA, and its release is barred by E.O.
12065 Recommendation:
That the appeal be denied.
A draft response to Mr. Fialka is attached (Attachment 4).
M James L. Kelley Deputy General Counsel Attachments:
1.
FOIA 78-143 initial request 2.
August 7, 1978 denial 3
FOIA 78-A-21 appeal 4.
Draft response 1/
(Continued from preceding page) 1978, he called to say that he would press his appeal under the old E.O. and that he would file a new request for the material after the new E.O. became effective.
The latter request has since been received (FOIA 78-334).
On December 21, 1978, the CIA wrote the NRC Division of Security that "the CIA information denied to the requester in the initial response should continue to be denied.
The information continues to retain its classification of CONFIDENTIAL."
On February 9, 1979, a Mr. Emerson at CIA indicated that the CIA review had been conducted under the terms of the old E.O., but that a brief review indi-cated that the classification would not change under the new E.O.
On March 21, the CIA indicated orally that the classified material remained Secret, not confidential.
In a March 15 memo in connection with Mr. Fialka's new request, the Division of Security determined that the portions of the report originally deleted remained classified.
On March 21, 1979, Mr. Fialka indicated that a review of his appeal under the new E.O.,
as he had originally requested, rather than under the old E.O.,
under which he had subsequently asked us to press his appeal, would be preferable.
~
.. Commissioners' comments or consent should be provided directly to the Office of the Secretary by c.o.b. Wednesday, May 9,1979 Connission Staff Office comments, if any, should be submitted to the Commissioners NLT M ay 4, 1979, 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 should be apprised of when comments may be expected.
This paper is tentatively scheduled for affirmation at an Open Meeting during the Week of May 21, 1979.
Please refer to the appropriate Weekly Commission Schedule, when published, for a specific date and time.
DISTRIBUTION:
Commissioners Commission Staff Offices Exec. Dir. for Opers.
Secretariat
.t ne wasnmgton smr 225 Virginia Avenue, S.E.
Washington, D.C. 20061 t1ay 12, 1978 Joseph f1., Felton Freedom of Information Officer Nuclear Regulatory commission Dear Sir; This is a request under the terms of the Freedom of Information Act for all of the deleted material from Volume III of " Inquiry Into the Testimony of the Executive Director for Operations," as released on February 1978 Because many of the deleted items refer to the circumstances surrounding an incident that is at least 13 years old, we doubt that they can be defended as pertinent to current national security problems and as being properly classified.
Sincerely,
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p August 7,1978 Mr. John J. Fialka The Washington Star 225 Virginia Avenue, S.E.
Ift RESP 0f1SE REFER Washington, D.C. 20061 TO F01A-78-143
Dear Mr. Fialka:
This is in regard to your letter dated May 12, 1978, in which you requested, pursuant to the Freedom of Information Act, a copy of all deleted material from Volume III of the " Inquiry Into the Testimony of the Executive Director for Operations", as released in February,1978.
Certain portions of Volume III have been classified pursuant to Cxecutive Order 11652 by the U.S. fluclear Regulatory Connaission.
These classified portions are being withheld from public disclosure, pursuant to exemption (1) of the Freedom of Information Act (5 U.S.C. 552(b)(1)) and 10 CFR 9.5(a)(1) of the Conmission's regulations.
Pursuant to 10 CFR 9.9 and 9.15 of the Conmission's regulations, it has been determined that the information withheld by NRC is exempt from production or disclosure, and that its production or disclosure is contrary to the public interest.
The persons responsible for this denial are 0. Gene Abston, Acting Director, Office of Inspector and Auditor, Raymond J. Brady, Director, Divison of Security, Office of Administration, and the undersigned.
Other portions of Volume III were classified by the Central Intelligence Agency (CIA).
In response to your request, NRC has requested that the CIA review the portions classified by CIA to determine if any material may be declassified.
This is in accordance with Section 3(A) of Executive Order 11652 which permits only the agency which classifies information to declassify it.
flRC has not received a response from CIA as yet.
When the CIA does respond, we will promptly provide you with any material which.they determine may be disclosed.
Sincerely,
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. fl. Felton, Director J
l Division of Rules & Records Office of Administration
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IheWashmgton Dtar 225 Virginia Avenue, S.E.
Washington, D.C. 20061 APPEAt,cf ittlIIN, EDH_DELSE Fo in -W -A - a-/ CJ t-/43)
De d P-i+ -7 3 August 9, 1978 United States Nuclear Regulatory Con::::ission Freedom of Information Appeals Washirgton, D. C.
20555 Fe-FOIA 78-143
Dear Sirs:
I hereby appeal the denial of the above captioned Freedom of Infor=ation Act request.
I request that in reviewing this appeal that you use the standards set forth in the newly issued executive order, Executive Order 12065 of June 28, 1978, governing the classification and declassification of documents. As you know, the new Executive Order substantially alters the justificationsavailable to an agency withholding documents on national security grounds. Although I understard that this new Executive Order does not become for:: ally effective until December 31, 1978, it is n:7 vie's that the review of this FOIA appeal should be conducted under its provisions. A refusal to do so will inevitably lead to a totally unnecessary, time-consu=ing and duplicative review upon the effective date of the new Executive Order.
I therefore also request that in reporting the disposition of my appeal you state whether you have used the provisions of Executive Order 12C65 Sincerely, f-A s.I
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Mr. John J. Fialka The Washington Star 225 Virginia Avenue, S.E.
IN RESPONSE REFER Washington, D.C. 20061 TO FOIA 78-A-21
Dear Mr. Fialka:
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This letter responds to your appeal dated August 9,1978, of an initial denial in whole (F0IA 78-143, August 7,1978) of your F0IA request dated May 12, 1978.
You requested the deleted portions of Volume III of the OIA Report " Inquiry Into the Testimony of the Executive Director for Operations," released in February,1978.
The deleted portions were determined by NRC and the Central Intelligence Agency (CIA) to be clas-sified and are exempt from disclosure under exemption (1) of the Freedom of Information Act, 5 U.S.C. 552(b)(1), and the Commission's regulations, 10 CFR 9.5(a)(1).
A second classification review of this report has been performed by the NRC and the CIA, under the new Executive Order governing the classifica-tion and declassification of documents, E.0.12065.
The conclusion reached is that the deleted portions are properly classified and remain subject to exemption (1) of the F0IA.
Your appeal is therefore denied.
This detemination 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
Mr. John J. Fialka 2
the district in which you reside, have your principal place of business, or in the District of Columbia.
Sincerely, Samuel J. Chilk Secretary of the Comission