ML20040G508
| ML20040G508 | |
| Person / Time | |
|---|---|
| Issue date: | 01/06/1982 |
| From: | Bickwit L NRC OFFICE OF THE GENERAL COUNSEL (OGC) |
| To: | |
| Shared Package | |
| ML20040G503 | List: |
| References | |
| REF-10CFR9.7, TASK-PIA, TASK-SE 81-A-18C, SECY-82-006, SECY-82-6, NUDOCS 8202160190 | |
| Download: ML20040G508 (3) | |
Text
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'%.... J POLICY ISSUE (Affirmation)
For:
The Commissioners From:
Leonard Bickwit, Jr.
General Counsel
Subject:
FOIA APPEAL (81-A-18C) REGARDING MILITARY FUNCTIONS RULE i
Discussion:
On October 1,'1981, Ellyn Weiss submitted a FOIA request for documents to or from the Commissioners or members of their staffs regarding the September 10, 1981 decision to reconsider the rule on the military functions exception from NRC rules of i
orocedure, 10 CFR 2.700a (Attachment 1).
By letter of November 5, NRC provided copies of Commissioners' response sheets to Ms. Weiss and denied access to two memoranda internal to Commissioner Gilinsky's office and three memoranda to the Commission from OGC (Attachment 2).
This partial denial was appealed on November 23 (Attachment 3).
We have reviewed all of the denied documents and determined that they are withholdable in their entirety pursuant to Exemption (5) of the FOIA.
The three OGC memoranda propose and analyze options for Commission consideration regarding reconsideration of the military functions exception.
Legal advice, opinions, and recommendations of this nature constitute an essential element of the deliberative process and are exempt from mandatory public release l
in the interest of encouraging open and I
frank discussion within the Commission.
CONTACT:
Richard A.
Parrish, OGC 634-3224 8202160190 G20121 PDR 10CFR PT9,7 PDR
2 Continued withholding of these documents is recommended because they contain OGC's legal analysis, including identification of legal weaknesses, regarding a matter presently subject to litigation.
Copies of these documents are available for inspection at your request.
The two memoranda to Commissioner Gilinsky from legal assistant William Manning reflect the author's analysis of the Federal Register Notice announcing the Commission's decision to reconsider the subject rule and are similarly exempt from mandatory public disclosure.
Withholding ;hese memoranda is again necessary to protect the uninhibited exchange of ideas and opinions within Commission offices regarding Commission deliberations.
To the extent that the above documents contain any reasonably segregable factual material, the facts are already in the public record through publication in the Federal Register Notice announcing the reconsideration and their release would unnecessarily disclose the manner in which they were selected and emphasized, a distinct aspect of the l
deliberative process.
Therefore, we l
recommend withholding all five documents l
in their entirety.
I There is no merit to the requester's I
claim that several of the memoranda predate the Commission deliberations on this subject.
Though a distinct deliberative process must be identified to support withholding based on that aspect of Exemption (5), the requester l
mischaracterizes the NRC representations l
to the D.C.
Circuit Court of Appeals in asserting that these deliberations did not begin until the Commission was at l
j full strength on August 3, 1981.
As the Commission informed the court, the vote
[
i to reconsider did not occur until the Commission was at full strength.
The l
deliberative process, however, was initiated by SECY-A-80-168, dated l
November 3, 1980, in response to the D.C.
Circuit's order enjoining the
3 effectiveness of the rule and its application in the NFS Erwin proceeding, well before the Commission's return to full strength.
Recommendation:
Authorize the Secretary to sign and dispatch the attached letter denying this appeal (Attachment 4).
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Leonard Bickwit, General Counsel Attachments:
- 1. FOIA Request dated 10/1/81
- 2. NRC Response dated 11/5/81
- 3. FOIA Appeal dated 11/23/81
- 4. Draft Letter Comissioners' coments or consent should be provided directly to the Office of the Secretary by c.o.b. Thursday, January 21, 1982.
Comission Staff Office comments, if any, should be submitted to the Comissioners NLT January 14, 1982, 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 coment, the Comissioners and the Secretariat should be apprised of when coments may be expected.
This paper is tentatively scheduled for affirmation at an open meeting during the week of January 25, 1982. Please refer to the appropriate l
Weekly Comission Schedule, when published, for a specific date and time.
DISTRIBUTION Comissioners Commission Staff Offices l
Exec Dir for Operations Exec Legal Director l
Secretariat l
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ATTACHMENT 1 O
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H.A.axow Sc WEISS
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172 5 i STR EET, N. W.
l SUITE SOS TELCPMONC cAIL w. NAnwoN WASHINGTON. D. C. 20o06 (2o2) as3-soTo ELLYN R. WCISS wlLLiAM 5. JonDAN,888 or COUNSEL Lcc L. misMoe L.TNoMAs SALLO.wAY October 1, 1981
_FprrnOM OF INFORMATION Joseph Felton, Director ACI REQUEST Division of Rules and Records Office of AdministrsLt; ion b~
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Washington, D.C.
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FREEDOM OF INFORMATfGN AC( REQUEST l
RE:
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Dear Mr. Felton:
N Pursuant to the federal Freedom of Information Act, I l
hereby request copies of the following:
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- 1. All memoranda, reports, SECY papers or other documents provided to.all or any of. the Cnemis-(
l A,L sioners-or members of -their ataffs from the-
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Office of General. Counsel or ' members thereof or
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'from any other NRC staff membei.related to the G.Z_5 ;-
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-commission's-decision on September 10, 1981 to
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reconsider its rule on the military functions
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'.7 exception from NRC proceduras rules,10 CFR
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2.700a.
- 2. All-memoranda, questions papers or other docu-
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ments from all or any of the Commissioners or O..~~~"' ~ ~' = ambers their staffs to the Office of General
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Counsel or members thereof or to any other NRC
-staff member related to the Commission's decision on September 10, 1981 to reconsider its
._. 3 rule on the military functions exception'from
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NRC procedural rules,10 CFR 2.700a.
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You are authorized to expend up to $50 on this request
-which I will undertake to reimburse.
Please call if you have any
,, questions concerning this request.
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i Very truly yours,
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s El R. Weiss
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ATTACHMENT 2 1
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l November 5',1981 i
1 Ellyn R. Weiss, Esquire Harmon & Weiss 1
1725 I Street, N.W.
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l Suite 506 IN RESPONSE REFER Washington, DC 20006 TO FOIA-81-397 l
Dear Ms. Weiss:
This is in response to your ' letter dated October 1.- 1981, in which you t
requested, pursuant to the Freedom of Infomation Act, docu.ments to and' l
from the Commission regarding its decision on September 10,1981 to reconsider its rule ori the military functions 5xception,10 CFR 2.700a.
I The six documents listed on Appendix A are being placed in the NRC Public Document Room,1717 H Street, N.W. Washington, DC.
The five documents listed on Appendix B are being withheld in their entirety.
Documents 1 and 2 are comunications between a Comissioner and his staff and constitute p They contain no reasonably seg.redecisional advice, analysis and'recomendations.
regable factual material.
Documents 3, 4, and 5 contain the legal advice, opinions and recomendations of the General Counsel regarding a matter then subject to Comission deliberations and presently involved in litigation.
Release of this type of material could tend to inhibit the open and frank discussion of legal ideas and options, either during Comission deliberations or in response to litigation.
Any factual material contained in these three documents is also found in the Federal Register notice published on September 30, 1981 regarding this matter (46 FR 47799) (copy enclosed).
These five documents are, therefore, being withheld from public disclosure pursuant to Exemption (5) of the Freedom of Infomation Act (5 U.S.C. 552(b)(5))
and 10 CFR 9.5(a)(5) of the Comission's regulations.
Pursuant to 10 CFR 9.15 of the Comission's regulations, it has been determined that the infomation withheld is exempt from production or disclosure and that its production or disclosure is contrary to the
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public interest.
The person responsible for the denial of documents 1 through 4 is Mr. Samuel J. Chilk, Secretary of the Comission, and for document 5 is Mr. Leonard Bickwit, Jr.,, General Counsel.
This denial may be appealed to' the Comission within 30 days from the receipt of this letter.
Any such appeal must be in writing, addressed to the Secretary of the Comission, U.S. Nuclear Regulatory Comission, Washington, DC 20555, and should clearly state on the envelope and in the letter that it is an " Appeal from an Initial FOIA Decision."
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J. M. Felton, Director Division of Rules and Records
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Office of Administration
Enclosures:
As stated i
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F01A-81-397 Appendix A 1.
Commissioner Gilinsky's Response Sheet re: SECY-A-80-168A dated 9/9/81 2.
Commissioner Gilinsky's Response Sheet re: SECY-A-80-168 dated 12/2/80 3.
Commissioner Bradford's Response Sheet re: SECY-A-80-168A dated 9/9/81-4.
Commissioner Roberts' Response Sheet re: SECY-A-80-168A dated 9/9/81 5.
Commissioner Ahearne's Response Sheet re: SECY-A-80-168A dated 9/10/81
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6.
Chairman Palladino's Response Sheet re: SECY-A-80-168 dated
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FOIA-81-397 Appendix B 1.
Note to Comissioner Gilinsky from W. Manning dated 12/2/80 re:
SECY-A-80-168 2.
Note to Comissioner Gilinsky from W. Manning dated 12/8/81ie:
Federal Register Notice 3.
SECY-A-80-168, dated 11/3/80 memo for the Comission from Leonard Bickwit, Jr., re: "Rulemaking to Incorporate in 10 CFR Part 2 APA's ' Military and Foreign Affairs Exception' to Adjudications" 4.
SECY-A-80-168A, dated 9/3/81 memo for the Comission from Leonard Bickwit, Jr. presenting a revised draft Fed.eral Register notice 5.
Memo for the Comission from Leonard Bickwit', Jr. dated 3/5/81 re: SECY-A-80-168 l
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,33 7e WI LLI A M S. JORDAN, til or counset Lcc L. miswo, L. THOMAS GALLowAY November 23, 1981 Secretary Nuclear Regulatory Commission Washington, D.C.
20555 RE: Appeal From Initial FOlA Decision (FOlA-81-397
Dear Sir:
This is an appeal of your partial denial of the request for documents filed by the Natural Resources Defense Council, Inc., (NRDC) pursuant to the Freedom of Information Act, 5 U.S.C. 5552 (a) (6).
On November
_5, 1981, that request was denied in part in a letter from J.M. Felton.
NRDC requested copies of documents relating to NRC's decision to reconsider its rule exempting NRC regulation of
" military or foreign affairs functions" from the requirements of' formal adjudications.
Mr. Felton denied access to five documents, relying on exemption 5 (5 U.S.C.
S552 (b) (5))
I as either predecisional advice or advice from an attorney con-cerning an item "then subject to Commission deliberations."
i As you are aware, a requester obviously does not have the ability to review denied documents to allow it to argue that the denial is improper.
Therefore, courts have placed the burden "specifically...on the Government" to establish 1
that the withheld material is exempt from requirement of i! >x c
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HA RMON & WEISS disclosure, and that this burden cannot be met by " sweeping and conclusive citation of an exemption":*/
Thus, we require that when an agency seeks to withhold information it must provide a relative-ly detailed justification, specifically identify-ing the reasons why a particular exemption is relevant and correlating those claims with the particular part of a withheld document to which they apply. Id.
This letter fails to make that detailed justification.
We insist that your reply to this appeal comply with the ruling in Mead Data.
Further, we believe that, upon your review of the denied documents, you will agree that they should be released.
Documents #1 and 2, denied as "predecisional advice", are dated "12/2/80" and "12/8/81".
Obviously, the second date is incorrect.
If it is properly dated "12/8/80", that would place both documents substantially befor'e reconsideration of l
the military functions rule was begun.
The Commission has i
represented to the D.C. Circuit Court of Appeals that it did not begin its reconsideration of this rule until August 3, 1981, when the Commission was at full strength, or at the earliest July 1, 1981, when the new Chairman was confirmed.**/
If this is true, then documents dated prior to that time are not predecisional in that they are not part of any on-going
- / Mead Data Central, Inc. v. U.S. Decartrent of the Air Force, 566 F.2d 242, 251 (D.C. Cir.1977).
- /NRC Ibscanse in Occosition..., dated Oct. 30, 1981, p 3,n.2 (attached as Xppend u A).
1
HInwow'Be weiss
" deliberative process". Vaughn v.
Rosen, 523 F.2d 1136, 1144 (D.C. Cir. 1975).
Instead, they can only be "postdecisional,"
relating to the implications of the NRC's decision on June 26, 1980 to issue the military functions rule in the first place.
As such, the documents are not covered by FOlA exemp-tion 5. Id. See also Parke Davis & Co. v. Califano, 623 F.2d 1,6 (6th Cir. 1980).
Similarly, the documents denied as legal advice regarding an action "then subject to Commission deliberations" i
(Docs. #3-5) contain two memoranda dated 11/3/80 (#3) and 3/5/81 (#5), both prior to the Commission's " deliberative process" on the reconsideration decision.
In addition, to the extant that the Commission intends to rely on " attorney-l client" privilege to bar disclosure, please be advised that you are required to establish that the document was "com-municated to or by an attorney as part of a professional relationship in order to provide (the Agency] with advice on j
the legal ramifications of its actions." Mead Data, 566 F.2d at 243.
You must also establish that the information is confidential.
"If the information has been or is later shared with third parties, the privilege does not apply." Id.
Finally, as many documents containing NRC legal advice were publicly revealed in response to an earlier request by NRDC, it does not seem reasonable to contend that disclosure of these documents would inhibit the Commission's actions.
\\
HARMON & WEISS Given the purpose of the FOlA, which is to open agency pro-cesses to public scrutiny, we request that you reconsider your initial denial, and release the withheld memoranda..
As provided by statute, we expect.a reply to this appeal within 20. days.
Very truly yours,
/
Lee L. Bishop Ellyn R. Weiss Attorneys for NRDC
A p ens /-ix A 4 ;, -
IN THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT
)
NATURAL RESOURCES DEFENSE
)
COUNCIL, INC.,
)
)
Petitioner,
)
)
v.
)
Nos. 80-1863
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80-1864 UNITED STATES NUCLEAR REGULATORY
)
COMMISSION and THE UNITED STATES
)
OF AMERICA,
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Respondents.
)
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RESPONDENTS NUCLEAR REGULATORY COMMISSION AND UNITED STATES RESPONSE IN OPPOSITION TO NATURAL RESOURCES DEFENSE COUN'CIL'S MOTION FOR D'I-RECTION TO COMMISSION TO DECIDE ITS RULEMAKING BY DECEMBER 1,1981 Responder.ts Nuclear Regulatory Commission ("NRC" or l
" Commission " ) and the United States oppose the October 23, 1981 l
motion of the Natural Resources Defense Council (NRDC) asking this I
Court to direct the Commission to reach a ' decision in its reconsid-eration of its challenged rule by December 1 -- a date two weeks subsequent to the November 16 close of the public comment period.
(46 Fed. Reg. 47799, Sept. 30, 1981.)
The Court should deny the motion because it unreasonably constrains Commission reconsid-eration of its rule and, with all respect, because comity recom-mends against such unusual, premature and unwarranted judicial l
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interference with agency procedure.
See Nader v. Federal Communications Commission, 520 F.2d 182, 196 (1975).
NRDC advises the Court that in its view the Commission can " easily" reach a decision within its suggested time constraint.
In support of that view NRDC advances the following argument:
The Commission must be presumed to have given much consideration to this rule during the process of briefing of this case before the c'ourt.
- Moreover, I
the portion of the proposed reconsideration regard-ing application of its rule to ongoing proceedings P
in general, and NRDC in particular, ate purely legal questions, on which public comment is very unlikely to raise issues not already considered by the NRC in i
their. preparation for this case.
NRDC motion p. 2.
This position is quite surprising to the Commission and should be troubling to the Court.
After maintaining an action against the NRC for amending its procedural rules without inviting and considering public comment, NRDC now reveals that it has no realistic expectation of any or any meaningful public comment, or in the alternative wishes the Commission to conclude the matter without adequately analyzing and considering the public comment that is received.
l As Commission counsel advised counsel for NRDC, the Commission intends to pursue this matter diiigently.
- However, having invited public comment, the Commission is unwilling to commit to a' date certain that could among other things deprive it of an ability adequately to consider that comment.
The Commission's unwillingness to set a concluding date for its reconsideration is 2
all the more reasonable when it occurs before the Commission has any means of assessing the extent of response to its notice.1!
Moreover, such a judicial order as NRDC suggests would offend considerations of comity where, as here, no unreasonable delay in the conduct of the rulemaking has been demonstrated. E!
Pursuant to the Court's order of October 19, 1981, NRC will report its progress at the end of 60-day periods.
In the unlikely event the Court finds the agency's action is dilatory, there will be time enough to consider a course of action to impose a definite date upon the Commission.
I 1/
Furthermore,.the schedule that NRDC seeks would be difficult to accomplish.even without allowing any time for staff review, analysis and recommendations for Commission consideration.
This is so because the Commission may only take formal action l
^
in a meeting (42 U.S.C. 5841) and the Sunshine Act provides for one week's notice of meetings -(see, 5 U.S.C. 552b(e)(1)).
Meetings are not customarily scheduled before there is some assurance that Commissioners will be ready to take action or at least are prepared to discuss the subject issues.
E!
NRDC hints at bad faith in that "NRC waited until two weeks before the court's scheduled [ October 15] oral argument" to
- publish its reconsideration.
However,.as NRDC well knows, the reconsideration was based on the fact that the Commission was not at its full strength of five members until August 3, 1981 and that the agency's new Chairman had been in office since only July 1, 1981.
Under those. circumstances, a Commission vote' on reconsideration, preparation and dispatch of a Federal Register notice by September 25 represented reasonable action on the Commission's part.
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For the foregoing reasons, the Court should deny NRDC's motion.
Respectfully submitted,
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JAMES A.
FIT 3 GERALD DIRK D. SNELL
. Adsistant General Counsel Attornef
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QW MARJORIE S. NORDLINGER MARIA A. IIZUKA/
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Attkrney Attorney U.S.
Nuclear Regulatory Appellate Section, Lands and Commission Natural Resources Division Washington,. D.C.
20555 U.S.
Department of Justice Washington, D.C.
20530 f
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i CERTIFICATE OF SERVICE I hereby certify that on this 30th day of October,1981, a copy of the foregv.~; Respondents Nuclear Regulatory Commission and United States Response in Opposition to Natural Resources Defense Council's Motion for Direction to Commission to Decide Its i
Rulemaking by December 1,1981 was served upon counsel for all parties by placing a copy in the mail, postage prenaid, addressed to the following individuals:
Ellyn R. Weiss, Esq.
Harmon & Weiss 1725 I Street,.N.W., Suite 506 Washington, D.C.
20006 S'.*~ Jacob Scherr, Esq.
Natural Resources Defense Council 1725 I Street Washington, D.C.
20006 Maria A.
Iizuka, Esq.
Appellate Section t
3 Lands and Natural Resources Division U.S. Department of Justice Washington, D.C.
20530
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c MARJgRIE S.
NORDLINGEW
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Attopney U.S.
Nuclear Regulatory Commission Washington, D.C.
20555
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9 ATTACHMENT 4 1,
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c.-,.,
e Lee L. Bishop, Esq.
Harmon & Weiss 1725 I Street, N.W.
Suite 506 Washington, D.C.
20006
Dear Mr. Bishop:
This is in response to your November 23, 1981 Freedom of Information Act appeal of the denial of access to documents relating to the Comission's -
decision to reconsider its military functions exception to NRC rules of
}
procedure,10 CFR 2.700a.
The Comission has reviewed your appeal and determined that each of the subject documents described in Appendix A, contains predecisional advice, opinions and recommendations and is exempt from mandatory public disclosure in its entirety pursuant to exemption (5) of the FOIA.
Release of these documents could tend to inhibit the free flow of ;deas
,and analysis essential to the Comission's deliberative process. Any reasonably segregable factual material contained in these documents is already a matter of public record through publication in the Federal Register Notice announcing the Comission's decision. to reconsider the rule at issue, 46 Fed. Reg. 47799 (Sept. 30, 1981).
Release of these facts would disclose the manner in which they were selected and I
emphasized, a distinct aspect of the deliberative process. Accordingly, the subject documents are being withheld in their entirety pursuant to Exemption (5) of the F0IA, 5 USC 552(b)(5), and the Comission's regulations, 10 CFR 9.5(a)(5).
Your appeal letter contends that the deliberative process in question did not begin until the Comission was at full strength on August 3,
2 1981, and that several of.the pert'inent documents were therefore not predecisional for the purposes of the F0IA.
I believe you have misconstrued the representations made to the D.C. Circuit Court of Appeals. Though the final deliberations and the vote to reconsider did not occur until the Commission was at full strength, the deliberative process itself was prompted by the court's September 28, 1980 order enjoining the effectiveness of the rule and its application in the NFS Erwin proceeding. SECY-A-80-168, dated November 3, 1980, actually initiated the reconsideration of the rule.
This letter represents the final agency action on your F0IA Appeal.
Judicial review of this decision is available in a federal district court in the district in which you reside or have your principal place of business, or in the District of Columbia.
Sincerely, Samuel J. Chilk Appendix A:
List of Documents Withheld
APPENDIX A 1.
Note to Commissioner Gilinsky from W. Manning, legal assistant, dated 12/2/80 re: analysis of SECY-A-80-168.
1 page.
2.
Note to Commissioner Gilinsky from W. Manning dated 12/8/81 re:
analysis of Federal Register Notice.
1 page.
3.
SECY-A-80-168, dated 11/3/80 memo for the Commission from Leonard Bickwit, Jr., re: "Rulemaking to Incorporate in 10 CFR Part 2 AFA's ' Military and Foreign Affairs Exception' to Adjudications."
3 pages' with attached draft Federal Register Notice.
4.
SECY-A-80-168A, dated 9/3/81 memo for the Commission from Leonard 81ckwit, Jr. presenting a revised draft Federal Register Notice.
1 page with attachment as stated.
5.
Memo for the Commission from Leonard 8ickwit, Jr. dated 3/5/81 re:
SECY-A-80-168.
2 pages.
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