ML20044A470

Appeals Denial of FOIA Request for Transcripts of Senior Mgt Meetings Re Plant for 1985-1989

ML20044A470
Person / Time
Site:	Calvert Cliffs
Issue date:	12/26/1989
From:	Burger K MARYLAND, STATE OF
To:	Taylor J NRC OFFICE OF THE EXECUTIVE DIRECTOR FOR OPERATIONS (EDO)
References
FOIA-89-396, FOIA-89-A-35 NUDOCS 9006290098
Download: ML20044A470 (3)

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,etothat R H HOOrt R he#6ttN & .Wh0tt jy *, 'jc';*', MARYLAND PEOPLE'S COUNSEL cvNtnia onttN waantN AMERICAN BUILDING. 9tw FLOOR tutat ta v cs***me 231 [Aaf BALTIMORL STREET BALTIMORE MARYLAND 21202 13o41333 6046 FAR (3011333 3686 December 26,1989

/.. '. ' /.'. ; .' IL. . i ..'.L l s . r _ ?: . . 4 Mr. Jim Taylor Acting Executive Director for Operations j.f 3 [ [ [fd/A.i./f,3if U.S. Nuclear Regulatory Commission Washington, D.C. 20555

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i Re: bpml From An_ Initial Decision Denying Freedom _Qf tr1[pnstlico_Aqdcquest. FOIA_ No. 89 396

Dear Mr. Taylor:

i This is an appeal pursuant to subsection (a)(6) of the Fn edom of Inforrnation Act. (5 l U.S.C. 6552). 1 On November 29, 1989, I received a response to my Freedom of Infonnation Act Request dated September 12, 1989, requesting transcripts of senior management meetings i regarding Calvert Cliffs nuclear power plant from 1985 te 1989 as well as any background I infonnat on and supporting documents used at senior management nxetings. The response <

indicated that the requested documents were exempt from disclosure under 5 U.S.C. 552 (b)(5) l because these records consisted of " interagency and intra agency records that are not available '

through discovery during litigation" and that the " disclosure of [this) predecisional infonnation  !

would tend to inhibit the open and frank exchange of ideas essential to the deliberative i

?rocess." Furthermore, the response ind!cated that because the requested records were withheld  !

.n their entirety, the facts are " inextricably intertwined with the predecisional information" and I that "there are also no reasonably segregable factual portions because the release of the facts j would pennit an indirect inquiry into the predecisional process of the agency."  ;

Finally, the irsponse informed us in the " Comments" section that "[t]he staff has

• indicated that they were unable to locate any senior management meeting records subject to your request fcr the years 1985 and 1986." The response also advised us of our right to  ;

appeal the decision in writing to the Executive Director for Operations.

l 9006290090 091D26 PDR FOIA BURCER09-A-3b PDH < l

- Mr. Jim Taylor December 26,1989- .

Page 2  :

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ne agency's response to our request included an Appendix setting out fourteen records  :

I withheld in their entirety.' As noted above, Dr. nomas E. Murley and Mr. William T.

i Russell (hereinafter referred to as " Denying Officials") denied People's Counsel access to these  !

requested records, stating that they were exempt from compulsory disclosure and that to the extent they contained non exempt factual portions they were not segregable from the nonfactual portion. No further explanations were given. l f

Although Appendix A is helpful in that it at least informs People's Counsel of which  !

records have been withheld, these withheld recortis are not described with any specificity. l Thus, as discussed by the U.S. Court of Appeals for the District of Columbia Circuit in l Vaughn v. Rosen,484 F.2d 820 (1973), I am unable to argue "with desirable legal precision  !

for the revelation of the concealed information," thus putting me at a considerable disadvantage i in presenting my case to you or to a court of law. l Accordingly, if you choose to continue to wit mold some or all of the materials which \

were denied after my initial request, I request that you provide a justification for the denial  !

of nch item which is still withheld in accordance with the procedures set forth in Vaughn.

I would also request that you carefully reconsider those items which may have been denied  ;

because they contained non segregable, non exempt factual portions to determine whether,  !

contrary to the Denying Officials' determination, exempt material can be redacted, thus giving .

People's Counsel access to the non-exempt portions. As stated by the Supreme Court in FJA

v. Mink,410 U.S. 73 (1973):

l Congress sensibly discarded a wooden exemption that could have meant disclosure of manifestly i private and confidential policy recommendations .

, simply because the document containing them also  !

happened to contain factual data. Dat decision.  :

should not bc taken, however, to embrace an i equally wooden exemption permitting the'  ;

withholding of factual material otherwise available ,

on discovery merely because it was placed in a- l memorandum with matters of law, policy, or l opinion. It appears to us that Exemption 5 )

contemplates that the pub!!c's access to internal i memoranda will be governed by the same flexible. j sommon sense approach that has long governed- 1 private parties' discovery of such documents involved in litigation with Government agencies....

3 A copy of the NRC's Response and the accompanying Appendix is attached to this l letter.

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i Mr. Jim Taylor  !

December 26,1989  :

Page 3 l

t That approach... continues to extend to the  :

discovery of purely factual material appearing in those : documents in a form that is severable I without compromising the private remainder of the j documents.  ;

M. at 91. (Emphasis added). l t

As stated in our initial Freedom of Information Act request, the Office of People's  !

Counsel is an independent agency of the State of Maryland which la statutorily mandated to  !

represent residential customers of public utility companies regulated by the Maryland Public j Service Commission. Md. Ann. Code art. 78, (15 (a) (1988). The information sought by  :

this appeal will significantly serve the public interest. 'Ihe information will assist People's Counsel in preparing for fuel rate cases involving the Baltimore Oas and Electric Company 1 (BO&E). BG&E requested an increase in its fuel rate which included the cost of replacement  :

power necessitated by outages at Calvert Cliffs ' People's Counsel requested the information j to assist it in making a recommendation to the Maryland Public Service Commission as to  ;

whether BG&E complied with a statutory provision requiring the Company to maintain the productive power of its generating plants at a reasonable level.

As you are no doubt well aware, exemptions to the Freedom of Information Act .

should be construed "as narrowly as is consistent with efficient government operations".  !

Because disclosure of these documents will in all likelihood not interfere with such operations, i they are not privileged.. Accortlingly, I trust that upon examination of my request, you will  ;

conclude that the records which I have requested are not properly covered under the j provisions of 5 U.S.C. 552(b) (5) of the Act, and that you will overrule the decision to t withhold the information.  !

As provided in the Act, I will expect a response to this administrative appeal letter  !

l within 20 working days. I would be pleased to discuss this matter further with you or with  !

any other responsible official. However, if this appeal is denied without an adequate i explanation why the material withheld is exempt, I intend to initiate judicial action to compel the disclosure of all withheld documents. i Very truly yours, j o .OmA v n e.__

, Kirsten A. Burger j

! Assistant People's Counsel KAB:TVC:sd I

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