ML20023D599
| ML20023D599 | |
| Person / Time | |
|---|---|
| Site: | Zimmer |
| Issue date: | 04/14/1983 |
| From: | Palladino N NRC COMMISSION (OCM) |
| To: | Seiberling J HOUSE OF REP., INTERIOR & INSULAR AFFAIRS |
| Shared Package | |
| ML20023A442 | List: |
| References | |
| NUDOCS 8305240256 | |
| Download: ML20023D599 (12) | |
Text
UNITED STATES
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NUCLEAR REGULATORY COMMISSION i
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WASHINGTON, D. C. 20555
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April 14,1983 CHAIRMAN The Honorable John F. Seiberling Subcomittee on Energy and the Environment Committee on Interior and Insular Affairs United States House of Representatives Washington, DC 20515
Dear Congressman Seiberling:
Your letter of March 2,1983 expressed concern about the processing of a Freedom of Information Act (F0IA) request submitted to the NRC by Mr. Thomas Applegate. That request sought disclosure of all agency records related to a final report of the NRC Office of Inspector and Auditor (0IA) regarding the NRC Office of Inspection and Enforcement (IE) investigation into alleged construction deficiencies at the Zimmer Nuclear Power Plant.
I set forth below the background of this par-ticular incident as described by NRC's Office of the General Counsel (0GC) in consultation with OIA.
The accounts offered by participants differ in several respects as noted below. These differences have been explored during the course of discovery in a lawsuit on the same issue
-- Applegate v. NRC, D.D.C. No. 82-1829 (filed June 30,1982).
Since at least June 1980, 01A has operated under a policy that directs that drafts and background documents be removed from the numbered investigative case files upon completion of an 0IA report. Only materials essential to the understanding of final reports are maintained in the case files.
Drafts, interview notes, and miscellaneous, non-essential documents are to be removed from case files.
Such documents may be retained by OIA personnel for personal use. Originally, 0IA personnel were told that documents retained for personal use could be kept in either the individual's office or at home. According to the Director, 01A, the primary impetus for the policy in June 1980 was the discovery that in many instances 0IA investigators were utilizing t.1e case files as a storage receptacle for all types of handwritten notes and various drafts of proposed outgoing reports and correspondence. The Director of OIA felt that this situation was wasteful from the stand-point of clerical filing time and reduced storage capability.
In addition, he saw no useful purpose in maintaining such material.
Removing drafts is not unique to 01A.
I informed Congressman Markey on 1
March 24, in response to questions about the draft of a Region V report,
"[i]n accordance with our normal practice once the final report was issued the draft report was discarded...."
Further, the OIA policy reflects the desire to avoid the diversion of staff resources from investigative duties to processing F0IA requests for material which does 8305240256 830414 l
PDR COMMS NRCC l
CORRESPONDENCE PDR
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not represent a final agency position.
The OIA memorandum on this j
subject is enclosed as Enclosure D.
The particular situation outlined in your ietter concerns 01A's pro-cessing of an F0IA request for documents about one of its Zimer inves-tigations. OIA conducted two separate Zimmer investigations relevant to this discussion. OIA's investigation " Adequacy of IE Investigation 50-358/80-09 at the William H. Zimmer Nuclear Power Station" (the OIA 7.imer report, OIA file 81-18) was initiated in December 1980 and a final report issued August 7, 1981. The scope of this investigation, as defined by the Chairman in a December 15, 1980 memorandum, was quite specific. OIA was to determine whether the Office of Inspection and Enforcement staff had conducted an adequate investigation of Mr. Thomas Applegate's allegations. At the same time, IE was directed to further investigate certain new safety issues raised by Mr. Applegate (see Enclosure E, Ahearne memorandum to Cummings dated December 15, 1980). A second file, File 81-39, was opened in May 1981 to address matters relating to the latter issue, aspects of which OIA was inves-tigating. The former investigation was largely an internal personnel and practice matter, while the latter was largely an external licensee performance matter. The separate construction defect investigation has since been transferred to NRC's Office of Investigations and remains ongoing. As the investigation into the adequacy of the IE investigation drew to a close, there was substantial public and congressional interest in the results of the OIA work.
Although there had been previous contacts by telephone between the Director, 01A and journalists, Mr. Applegate, and Mr. Thomas Devine of the Government Accountability Project (GAP), regarding the public release of the OIA Zimmer report (0IA file 81-18), one of the first written requests for the report was by Mr. Douglas Lowenttein of Cox Newspapers in September 1981.
In connection with Mr. Lowenstein's request, which sought documents regarding the report in addition to the report itself, 01A case file 81-18 was examined and found to contain, in addition to the expected final documents, various draft generations of final documents. Also in connection with this request, David Gamble, then an 0IA investigator, prepared a list of documents which he believed were subject to this F0IA request. The listed documents fell into several categories:
final documents which were at that time contained in the OIA case files; i
documents which belonged in one or the other of the two 01A j
case files but at that time had not yet been filed; various draft generations of final documents which were at that time contained in case file 81-18; and
3 various draft generations of final documents which were at that time in the staff member's possession and not in 0IA case files.
In a telephone conversation with OIA, Mr. Lowenstein subsequently indicated that his interest was limited to the August 1981 OIA Zimmer report and to related documents generated after that report. Those documents were released and the matter ended.
Given the requester's self-imposed limitations on his request, it was not necessary to con-sider the F0IA status of the documents on Mr. Gamble's list. However, the Lowenstein F0IA request did reveal to the Director, 0IA that his June 1980 policy with regard to the handling of draft materials was not being followed. After completing action on the Lowenstein request, 0IA management reminded the staff of the policy regarding retention of drafts and background materials in official files. All investigative case files were re iewed and draft material removed. OIA staff members who wished to retain this information were directed to remove it from agency premises.
This was a modification to the June 1980 policy and was itself discussed in a subsequent meeting with the OIA staff.
The first written request by GAP for 01A's Zimmer report was dated October 7,1981, and was received by OIA after it had resolved the scope of Mr. Lowenstein's request.
Both Mr. Lowenstein and GAP received copies of the report and associated post-report documents during the same time period in November 1981. A copy of the report was also sent to the Subcommittee on November 19, 1981.
Subsequently, on November 23, 1981, GAP submitted a broader F0IA request on behalf of Mr. Applegate.
This request was identified by NRC as F0IA 81-488 (the 488th F0IA request in 1981) and sought drafts and other documents prepared in connection with the final report and the investigation upon which the report was based.
In connection with this request, 0IA case file 81-18 was again examined and found to contain only final documents. 01A staff members and OIA management had different opinions on whether the interview of Jerry Harpster and the contents of both OIA case files (81-18 and 81-39) needed to be identified.
Both issues are dealt with below. Additionally, in connection with this request, it appears that several 0IA staff members were questioned about documents responsive to this request. The exact questions which were asked of the staff and
~their corresponding answers are disputed by the parties concerned.
In addition, there is scme dispute about whether 0IA employees were in fact ordered to remove documents from the agency. What follows, however, is not disputed.
Although the precise means by which Mr. Gamble did so is disputed, it appears that when the GAP request was received, Mr. Gamble brought his previously compiled list of documents to the attention of OIA management. The documents in ouestion are clearly the various documents which were earlier identified by Mr. Gamble in connection with the Lowenstein F0IA request.
It further appears that it was determined that the listed documents were already possessed by GAP, were related to the other 0IA investigation into the construction defects at Zimmer (file
l' 4
^
81-39) and thus were not within the scope of the request or, by operation of-DIA's records management policy, were no longer " agency records" subject to the F0IA (preliminary drafts, notes, etc.). Those documents which did not pertain to the subject request were placed in the Zimer co'1struction-defects file (81-39) and Mr. Gamble took those o
other documents which no longer were part of the official files home.
OGC has been unable to determine with any certainty whether Mr. Gamble was ordered,to remove the documents or whether he did so on his own initiative.
In any event, removal of those documents was consistent with the OIA policy established immediately subsequent to the Lowenstein F0IA request.
In its initial response and on appeal within the agency, OIA indicated there were no drafts or related background documents contained in its official files. The agency's response to GAP thus indicated there were no drafts in "NRC files."
There are two areas of concern here -- the distinction between files (81-18 and 81-39) and the " agency record" status of the removed documents. With respect to the first, except for one document, the "Harpster interview" to be discussed later, OGC believes the distinction between the OIA files (81-18 and 81-39 concerning separate investigations) for purposes of GAP's precise FOIA request was legitimate. Specifically, 0GC counseled OIA at that time that the distinction between the files appeared legitimate for purposes of responding to the F0IA request and that the instant request appeared to be limited to the internal investigation file. 0GC continues to believe that this distinction was proper. Turning to the second area of concern, in retrospect, OIA should have disclosed initially the existence of drafts and related material which were no longer maintained in the official 0IA case files but nonetheless were available for agency use so that the Commission itself could have confronted the question whether such documents remained " agency records" for the purposes of FOIA.
If the Comission had then determined that those documents were agency records, they would have been identified and, at that time, could s
have been withheld under the F0IA.
If the Commission had concurred in S
OIA's position, the documents would have been identified as personal records not subject to the F0IA and therefore not addressed in the response. These events have demonstrated the need for closer coordination between agency offices and 0GC on F0IA matters in the future. An apparent failure of the coordination process in this case contributed to the way in which matters were handled initially.
In any event, all relevant documents have now been released and we believe the l
issue.is moot in this case as will be explained below.
i
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l On June 30, 1982, GAP filed suit in U.S. District Court, on behalf of Thomas Applegate, challenging the NRC's response to this FOIA request.
i In the_ course of that lawsuit, 0GC obtained copies of the list compiled by and the documents taken home by Mr. Gamble and requested 0IA to review them for possible release under the F0IA.
Using the Gamble list as a basis for further inquiry, 0GC requested OIA to conduct a renewed search for'information in all 0IA files and to contact all current and y
.m, y
li 5
former OIA staff members involved in the OIA Zininer report. That search produced additional documents not on the list. OIA then determined that all information located in the renewed search and not already in GAP's possession could be released.
In addition, the OIA documents on Mr.
i Gamble's list relating to the separate OIA investigation at Zimmer (file 81-39) and thus outside of the scope of the subject request have now
. been released in. response to a later GAP F0IA request. Minor portions of documents in the construction defect file were withheld by the NRC Office of Investigations because their release would either interfere with the ongoing NRC investigation at Zimmer by identifying prematurely areas of NRC concern or constitute an unwarranted invasion of privacy.
In preparing responses to Interrogatories in this lawsuit, additional documents in file 81-18 and other materials were identified to OGC. All NRC documents in case file 81-18 subject to the request and all handwritten notes and draft materials retained by another former 0IA employee were released prior to the depositions in this lawsuit on March 3, 1983. Additional handwritten notes which were thought to have been personal but were determined to have been shared with another 0IA employee were also released subsequent to the deposition. An FBI report 4
in the file was referred to the Bureau for FOIA processing separate from this requ.est. This completes NRC action with regard to the request.
1 As noted above, there was one document on Mr. Gamble's list which was responsive to GAP's FOIA request in this case and which clearly remained an agency record -- the report of an interview of Terry Harpster con-ducted by OIA in March 1981.
In that interview, Mr. Harpster commented on certain quality assurance problems at Zininer but not specifically on the I&E investigation.
In July 1981, the Director of OIA determined that the "Harpster interview," although conducted during the OIA review of the I&E investigation, was really relevant to the separate ongoing j
investigation of construction defects at Zimmer.
This conclusion was based in part on the view that Mr. Applegate's allegations were specific and that Mr. Harpster's interview reflected broader problems.
In addition, nothing in the Harpster interview pertained directly to 01A's review of the adequacy of Region III's investigation of Mr. Applegate's specific allegations. Accordingly, the Director OIA instructed that:
(a) an informational copy of the Harpster interview be maintained in the 81-18 file; (b) the Harpster interview not be made a part of the 81-18 report; and (c) a copy of the Harpster interview be placed in the 81-39
. file and made a part of any report issued in that case. The interview of Harpster was not identified by OIA in conrection with GAP's i
November 23, 1981 F0IA request because the Director had concluded that
-it was not relevant to file 81-18.
It should t,a noted that Harpster's interview was not removed from the 81-18 file at any time after this decision had been made.
In hinds 4ht, there is no dispute that the-
_Harpster interview should have he 1 identified.
Even if the Harpster interview had been identified, hwever, 0IA management would have i
withheld the document under the F0IA at that time.
In any event, GAP i
~ apparently obtained a copy of the Harpster interview and, in July 1982, a
attached it to a pleading filed with the Commission ir. che Zimmer l
.u
6 licensing proceeding.
Comission officials determined at that time that acknowledgement of the Harpster interview would not interfere with the continuing investigations at Zimmer.
Thus, the Commission officially released it to GAP and the public on August 10, 1982.
Finally, 0IA has advised us that if a similar situation is presented in the future it will identify such documents in response to the F0IA.
Your letter of March 2,1983 posed specific questions derived from comments made by Mr. Cummings at the February 22 oversight hearings.
Initially, with respect to your concern about responsibility for drafting the Commission's response to your December 7,1982 letter, the NRC's Office of the General Counsel was assigned primary responsibility for drafting that response. 0GC necessarily solicited input from Mr. Cummings and other present and former 01A employees in the course of drafting the response. Mr. Cummings' position on this matter is reflected in the enclosed memoranda, Cummings to OGC, dated January 5 and February 16, 1983, which he requested be provided to your Committee hearings (y subsequent to his addressing this matter at the February 22 immediatel Enclosures F and G).
In response to your question regarding the manner in which OIA brought the Zimmer matter to the Commission's attention, I refer you to the enclosed memorandum of January 5,1983, Cummings to Leonard Bickwit, Jr., General Counsel (Enclosure F), to my letter to you dated November 16, 1981 transmitting the OIA Zimmer report and related memoranda, and to the June 10, 1982 testimony of Mr. Thomas Devine on behalf of the Government Accountability Project before the Subcommittee on Energy and the Environment.
In short, 0IA discussed the Zimmer matter in meetings and related memoranda in the months following the August 1981 OIA Zimmer report.
Mr. Cummings' basis for removing the Harpster interview from the OIA report is discussed above and in the enclosed memorandum of February)16, 1983, Cumings to Martin Malsch, Deputy General Counsel (Enclosure G.
Finally, Mr. Cummings did not provide the Harpster interview to any of the Commissioners prior to June 1982.
I believe this review responds to your questions.
Please be assured I share your concern for compliance with the F0IA.
The Commission intends that all NRC offices will be in full compliance with the FOIA and that all F0IA requests be coordinated with 0GC. To that end, the Commission has requested 0GC to prepare an agency-wide policy on issues such as coordination of responses, interpretation of the scope of requests, definition of " agency record" and records retention and disposal with reference to NRC's FOIA obligations and to develop procedures to implement the policy as well as to provide legal advice to any Commission-level office processing an F0IA request.
In preparing this policy, OGC has been asked to consider the guidance that I
7 already exists in the NRC Manual and to address how to effectively implement the policy.
Additional views of Commissioners Gilinsky and Asselstine, Commissioner Ahearne, and myself are enclosed as Enclosures A, B, and C.
We trust this letter responds to your questions on this subject.
Sincerely,
~I ghQ Nunzio J.
alladino
Enclosures:
A.
Additional views of Commissioners Gilinsky and Asselstine B.
Additional views of Commissioner Ahearne C.
Additional views of Chairman Palladino D.
Memo, 6/20/80, Director, 0IA to 0IA Staff E.
Memo, 12/15/80, Ahearne to Cummings F.
Memo,1/5/83, Cummings to Bickwit G.
Memo, 2/16/83, Cummings to Malsch l
l
ADDITIONAL VIEWS OF COMMISSIONERS GILINSKY AND ASSELSTINE Commissioners Gilinsky and Asselstine believe that DIA's response to the Arplegate F0IA request was not well managed and that several of the decisions made in this case exhibited very poor judgment on the part of the Director of OIA and on the part of other members of OIA management.
In their view, the Commission should take additional actions to address this situation and to prevent its recurrence.
In particular, Commissioners Gilinsky and Asselstine believe the Commission should have notified the Director of 01A in writing that: (1)
The decision by the Director of OIA not to indentify the Harpster interview, even though that docunent was generated as part of the 81-18 file and a copy was retained there, was clearly in error; (2) the apparent decision by OIA management not to identify draft documents, which seemingly were brought to its attention and which were undoubtedly within the F0IA request, was also erroneous; (3) these failures by members of OIA management to 1.dentify the documents needlessly cast suspicion on the integrity of the NRC's F0IA process; (4) the failure by the Director of OIA to ensure that DIA coordinated with, and obtained the concurrence of, 0GC when making these decisions demonstrated poor management of OIA's F0IA process, and (5) the continuing identification of new documents that were within tha Applegate F0IA request, despite repeated file searches by OIA, demonstrated poor management of OIA's F0IA process.
i e
ADDITIONAL VIEWS OF COMMISSIONER AHEARNE In my experience over the last several years, there have been numerous problems at the Commission level because of differing approaches to scope and differing interpretations of legal questions involved in responding to F0IA requests.
For example, as I noted in voting on a request in 1981:
"As this case clearly illustrates, completely independent review by each office leads to inappropriate results....
"The lack of coordination has created an anomalous result. Each office has a set of documents concerning the draft Indian Point Order. One set was released under the original decision, another set was released at a later time, and two offices still have not conceded they are covered by this request. We need better coordi-4 nation.
"0GC should be tasked to work with Secy on future requests.
- First, there should be better coordination with the staff.... Second, there should be more guidance to the Commission offices.... Finally, in cases such as this one where it is obvious offices are taking different approaches, some effort should be made to achieve a uniform response."
The staff requirements memo for that SECY included a direction to 0GC:
"The Commission requested 0GC to assure improved coordination with Staff and Commission offices as to future F0IA requests for Commissioner office documents."
There have been a number of instances where questions were raised about whether a document was an agency document or about the basis for withholding.
At various points in time I was told that OGC was working on some guidance (such as a list of appropriate bases for withholding). However, I have not l
received'anything on this subject.
1 l
Second, this will not be the first time agency credibility has been called into question due to inept handling of an F0IA request.
For example, in November 1981 we received a request from GAP concerning SECY-81-588 (dealing with investigative jurisdiction of IE and 0IA--the inside/outside paper).
The NRC's initial response released the SECY paper, withheld a short memo from me to 0IA asking for its comments on the paper, and failed to list two 0IA documents which "could contribute to public perceptions of discord within the NRC" (SECY-82-140 at 3).
GAP's F01A appeal included the following statement:
"Even more astounding, the index does not refer to any response by 01A.
It is inherently unbelievable that an office would neglect entirely to comment on a proposal that would prevent its staff of largely criminal investigators from conducting criminal investiga-tions.
"In conclusion, we are seriously concerned that the Commission may not have dealt in good faith with this F0IA request. Your response to this administrative appeal will determine whether we initiate a complaint under 5 U.S.C. Sec. 1206(e)(1)(C) for an investigation'of
' arbitrary and capricious withholding of information', as well as possible disciplinary action."
The SECY apparently was released because it had already been obtained and released by Congressman Moffett's Office.1 I withheld my document because I was told (in early December) the OIA response was going to be withheld and I understood the SECY was to be withheld (my memo quoted from the SECY paper).
I was not aware of either Congressman Moffett's release or NRC's release of the SECY until the appeal. With respect to 01A's documents, 0IA l
IWhen I asked who gave Congressman Moffett the paper and whether he was cautioned not to release it, I was told Secy, OCA, 0IA and ED0 "were unaware of the manner in which the Congressman's office may have obtcined a copy."
Memorandum from S. Chilk to me dated April 19, 1982.
identified two documents in a November 30, 1981 memorandum from J. Cummings to J. Carr which were to be listed but withheld. However, "the documents were apparently overlooked in coordinating the initial agency response."
Secy 82-140 at 2-3.
As I noted on my vote sheet, "I can understand how a skeptical outsider might conclude there was a conspiracy to conceal inormation."
Thus, as in addressing this case, we should keep in mind the context. The NRC also should address the general problems which exist in handling FOIA requests.
I
Additional Statement of Chairman Palladino I have given considerable thought to the additional views of Commissioners Gilinsky and Asselstine regarding the handling of the Applegate FOIA request by the Director of OIA, and to Commissioner Ahearne's additional views providing background on this subject.
For the reasons stated below, I believe it would be inappropriate to take the action proposed by Commissioners Gilinsky and Asselstine.
I believe we should take steps to develop a policy and related procedures for proper handling of FOIA requests.
To that end, we have directed OGC to prepare such policies and practices.
The rationale for my proposal is as follows.
By taking the action proposed by Commissioners Gilinsky and Asselstine, we would be judging 01A's conduct on the basis of ad hoc standards -- a practice that has not served us well in the past and that should be replaced by published procedures based on a well-thought-out policy.
With regard to point (2) of Commissioners Gilinsky and Asselstine, it is not clear that the Director of OIA was aware of the referenced draft documents prior to the start of litigation.
With regard to point (4), I agree that there should have been better coordination with OGC on handling this F0IA request, but this appears to be a chronic problem in the agency which clear agency policy and procedural guidelines would help avoid.
Also, I am aware that aspects of this matter are still pending before the U.S. District Court.
Depending upon the outcome of that case, the Commission may revisit the matter.
I must add that I am concerned about the agency's shortcomings in searching for documents related to F0IA requests and the fact that additional documents have been identified on searches subsequent to the initial search.
These concerns must be addressed on an agency-wide basis.
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