ML20023D605
| ML20023D605 | |
| Person / Time | |
|---|---|
| Site: | Zimmer |
| Issue date: | 02/16/1983 |
| From: | Jamarl Cummings NRC OFFICE OF INSPECTOR & AUDITOR (OIA) |
| To: | Malsch M NRC OFFICE OF THE GENERAL COUNSEL (OGC) |
| Shared Package | |
| ML20023A442 | List: |
| References | |
| NUDOCS 8305240267 | |
| Download: ML20023D605 (6) | |
Text
n February 16, 1983 MEMORANDUM FOR:
Martin G. Malsch Deputy General Counsel FROM:
James J. Cummings, Director
%,' 'Jg, Office of Inspector and Auditor
SUBJECT:
RESPONSE TO UDALL LETTER Pursuant to the Commission's February 7, 1983, instructions I am attachincf herewith additional detailed information with regard to OIA's handling of do,cuments in connection with GAP's November 23, 1981, FOIA request.
Attachments:
- 1. Info re NRC's withholding of Harpster intery w/atts
- 2. Info re NRC's withholding __
of Dft Do'es w/att cc:
Commission (5) m e
e e
830524026 830414 PDR COMMS NRCC CORRESPONDENCE PDR ATTACHMENT G
7 _._
n Information Regardino NRC's Withholding of the Terry Harpster Interview in Connection with GAP's November 23, 1981 FOIA Request The Office of Inspector and Auditor's (0IA) investigation into the Applegate allegations "Adecuacy of IE Investioation 50-358/80-09 at the William H. Zimmer Nuclear Power Station" (OIA file 81-18) - was initiated in December 1980 and a final report issued August 7,1981. The scope of 1
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 (IE) staff had conducted an adequate investigation of Applegate.'s allegations. At the same time IE was directed to further investigate certain new safety issues raised by Applegate (see Attachment A - Ahearne memorandum to Cummings dated December 15,1980).
In connection with OIA's investigation of Applegate's allegations, Terry Harpster, a former Region III IE Inspector, was interviewed by OIA Investigators David Gamble and John Sinclair on March 6, 1981 (see AttachmentB). About July or August 1981 the Director, OIA, reviewed Harpster's interview in detail and decided that it was not relevant to detennining the adequacy of IE's investigation but was relevant to another OIA investigation "Zimmer Plant - Allegation re Deficient Construction" (0IA file 81-39). which had been opened in May 1981. This latter case dealt with much broader issues at Zimmer and addressed potential criminal issues which were being uncovered as a result.of an ongoing IE investigation at the Zimmer plant.
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 be made a part of any report issued in that case.
The interview of Harpster was not 'dentified by OIA in connection 4
with GAP's November 23, 1981, FOIA request because the Director concluded i
that because the interview was not relevant to file 81-18 it need not be identified.
It should be noted that Harpster's interview was not removed t
from the 81-18 file after this decision had been made but rather a copy continued to be maintained in the 81-18 file.
GAP was not prejudiced by this decision, however, since the Harpster interview would only have been identified but not released at that point in time. GAP apparently obtained a copy of the Harpster interview in July 1982.
At the time the Director, OIA, concluded that the Harpster interview need l
not be identified, he believed that iiis staff had coordinated his deci-sion with NRC's Office of the General Counsel (0GC). The basis for that.
belief was the Director's prior instructions to his staff that all FOIA matters were to be coordinated with OGC.
While the Director recalls that several discussions took place between himself and his staff on this matter, he does not recall any. specific conversations with his staff wherein he verified that, in fact, coordination had taken place with OGC and that his decision had 0GC's concurrence.
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Although it is controversial as to whether the decision in question was in fact discussed with OGC by OIA staff it is not controversial that the Harpster interview should have been identified by NRC in connection with GAP's November 23, 1981 FOIA request.
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m Information Regarding NRC's Withholding of Draft Documents in Connection with GAP's November 23, 1981, FOIA Request Although there had been previous telephonic contacts between the Director, OIA and (a) Cox Newspapers; (b) Mr. Applegate; and, (c)
Mr. Devine of GAP regarding the public release of OIA's investigative report into the Applegate allegations
" Adequacy of IE Investigation 50-358/80-09 at the William H. Zimmer Nuclear Power Station" - (OIA file 81-18) - the first written request for the report was by Cox Newspapers in September 1981.
In 'onnection with this request OIA case file 81-18 was examined and c
found to contain, in addition to the expected normal final documents, various draft generat' ions of final documents. Also in connection with this request an OIA staff member prepared a listing of documents which he believed were subject to the Cox FOIA request. The listed documents fell into the following categories:
Final documents which were at that time contained in OIA case files.
Final documents which belonged in OIA 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.
Various draft generations of final documents which were at that time in the staff members possession and not in OIA case files.
As direct contact with Cox Newspapers determined that their only interest was in the final 0IA report and any documents issued thereafter, it did not become necessary to consider the FOIA status of the various draft documents.
The Cox FOIA request however did reveal t'o the Director, OIA, that long standing written policy with regard to the handling of draft materials was not being followed. By way of background, on June 20, 1980, the Director, 0IA, issued a memo to his staff which addressed-minor organi-zational changes and administrative matters (see Attachment C). The following paragraphs of the June 20 memo are pertinent:
"4.
Files As you know, our files are becoming more crowded each day. There-fore every effort should be made to avoid duplication and to destroy..
or retire those files which are no longer needed.
File folders are not to be used to store drafts or reports, interviews or memos.
Once a communication is finalized, drafts, (except in the case of an officially transmitted audit memorandum or report) notes and other miscellaneous matters are to be removed from the office filing system - keep them at home if-you wish.
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In order to meet, our responsibility under the Freedom of Information and Privacy Acts and to know what we have in our files, and more importantly to _be able to retrieve it, every document must be logged in on the subject card.
To achieve this every incoming document will be. received by the secretary to the Director, date stamped and expeditiously delivered to the Director before any copies are made..."
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The primary impetus for the June 1980 memo was the discovery that in many instances OIA investigators were utilizing the official case files as a storage receptacle for all types of handwritten notes and various draft generations of proposed outgoing correspondence.
This situation was not only wasteful - clerical filing time / reduced storage capability - but more importantly, no useful purpose was served in maintaining such 4
material.
Accordingly, after resolving the Cox FOIA request, the Director, OIA, met with the investigative staff and reiterated the policy cited above. To insure that this policy was implemented OIA's investigative case files were reviewed and draft materials removed.
Retention of such documents for personnel use was still permitted, but only if maintained off premises.
The first written request by GAP for 01A's investigative report into the Applegate allegations (0IA file 81-18) was da~ted October 7,1981, and was received by the office after the actions discussed next above.
At the same time,Mr. Lowenstein recei-ved his copy of the report and associated documents, GAP also received the same materials.
On November 23, 1981, GAP submitted a broader F0IA request which is identified by NRC as FOIA 81-488.
In connection with this request DIA case file 81-18 was again examined and found to contain only final 1
documents.
Additionally, in connection with this request it appears that several OIA staff members were questioned about documents concerning this request.
The exact questions which were asked of the staff and their corresponding answers are in dispute as between the parties concerned.
However, this controversy notwithstanding, the documents in question are clearly the various draft documents which were earlier identified by the OIA staff member in connection with the Cox FOIA request.
The Director, 0IA, recalls a specific conversation with his Assistant Di tor for Investigations just prior to his signing an OIA response in l
c ion with the GAP FOIA request. This conversation addressed the f lowing:
(a) OIA case file 81-18 did not contain any draft material; (b) staff investigators had been instructed that if they wished to retain any draft material they could do so if maintained off premises; and (c) that draft material had been removed from OIA case files. While the Director, OIA, can not specifically recall any other conversations on this. subject until after the GAP lawsuit had been filed, he is nonethe-less certain that if, in fact, a conversation or conversations did take
. place and he was aware of all the facts he would have strongly taken the position. that insofar as the GAP FOIA request was concerned the draft r-
documents in question were personal records and not agency records based
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on the following:
1.
'It was the clear, 'ur. mistakable intention of the June 1980 memo -
verbally reinforced to the staff at various times - that the staff's retention of draft documents - after supersession - was permitted solely to accommodate those who for personal reasons desired to maintain a chron file of their work; 2.
Intention notwithstanding, before any document can be considered an agency document, the agency must actually possess or control it.
Such was. clearly not the case with regard to these documents as the staff member was the only person who controlled and possessed the documents in question; 3..
Common sense would seem to dictate that the Governm'ent should not be required to consider superseded draft documents as agency records only because an individual maintains a copy of that document for his personal use.
The Director, OIA - for the same reasons as was set forth with regard to the withholding of the Harpster interview - believed that his staff had obtained the concurrence of OGC in this matter.
However, he cannot recall any specific conversations with his staff wherein he verified this concurrence.
It is controversial as to whether the OIA staff discussed this matter with OGC.
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