ML20046B416
| ML20046B416 | |
| Person / Time | |
|---|---|
| Issue date: | 07/16/1993 |
| From: | Cordes J NRC OFFICE OF THE GENERAL COUNSEL (OGC) |
| To: | |
| References | |
| SECY-93-197, NUDOCS 9308040182 | |
| Download: ML20046B416 (33) | |
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ADJUDICATORY ISSUE July 16, 1991 SECY-93-197 (Inforniation) i FOR:
The Commission i
FROM:
John F.
Cordes, Jr.
Solicitor
SUBJECT:
LITIGATION REPORT - 1993 - 11 I
Environmental and Resources Conservation Orcanization v. NRC, No. 92-70202 (9th Cir., June 30, 1993)
Petitioner in this lawsuit challenged the NRC's issuance of a
" possession-only license" for the Rancho Seco nuclear power plant near Sacramento, California.
In an adjudicatory proceeding the Commission ruled that petitioner lacked standing to pursue its claim that issuance of the POL violated the National Environmental Policy Act.
The Commission decided that petitioner-had waived its claim to standing based on " environmental" injury by not raising it on appeal to the Commission from an adverse Licensing Board decision and that petitioner's claims of
" informational" and " economic" injury were not cognizable under NEPA.
In a short per curiam opinion the court of appeals (Reinhardt, i
Trott & Rymer, JJ.) denied the petition for review.
The court agreed that petitioner had waived its environmental injury claim and that its claim of economic injury was not sufficient for NEPA standing.
The court declined to consider petitioner's claim of' informational injury on the ground that petitioner had not adequately addressed it in petitioner's court of appeals brief.
In a separate concurring opinion Judge Rymer indicated that she would have rejected the informational standing argument on its merits.
The court concluded that various other claims raised by petitioner were either incorrect or inconsequential.
Petitioner has ninety days to seek Supreme Court review.
AttacPJent:
Memorandum
Contact:
NOTE:
TO BE MADE PUBLICLY AVAILABLE Charles E. Mullins IN 10 WORKING DAYS FROM THE 504-1618 DATE OF THIS PAPER 020001 9308040182 930716
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Government Accountability Proiect v.
NRC, Civ. no. 86-3201; Nuclear Awareness Network v.
NRC, Civ. no. 86-3201 (consolidated cases)
(D.D.C.,
decided July 2, 1993)
These are consolidated Freedom of Information Act cases filed in 1986 seeking disclosure of various NRC documents concerning the Wolf Creek nuclear power plant in Kansas.
The district court (Hogan, J.),
after holding the case under advisement for more than five years, ruled that, with one exception, the NRC properly withheld the disputed documents under FOIA exemptions 5 and 7, protecting deliberative processes and investigatory information, respectively.
The one exception was an OGC memorandum to OI discussing licensees' obligation to disclose wrongdoing to the NRC.
The court ruled that this document simply described existing policy and was not " deliberative."
OGC and OI have no interest in appealing this ruling, and the document will be released shortly.
The court declined plaintiffs' request to make a " bad faith" finding against the NRC or to award attorney's fees.
The court found plaintiffs' allegations of NRC misconduct irrelevant to this FOIA dispute.
Plaintiffs have sixty days to appeal.
Attachment:
Memorandum Opinion i
Contact:
John F.
Cordes 504-1600 Kansas Gas & Elec.
v.
NRC, Civ. no. 87-2748 (D.D.C., decided July 2, 1993)
This is a " reverse FOIA" suit that is related to the GAP and EhH cases discussed above.
Here, the NRC in 1987 decided that it would release under FOIA various Kansas Gas & Electric documents the NRC had received from a confidential source.
Karsas Gas &
Electric filed suit to prevent the document release. 'The NRC withheld the documents pending the outcome of the su.'.t.
The documents relate to the company's in-house " Quality First Program."
The district court (Hogan, J.) found a 1990 Kansas Supreme Court decision decisive.
That decision held that the " Quality First" documents ar2 not protected by the Copyright Act or by the "self-critical analysis privilege."
The district court here ruled that the Kansas Supreme Court decision collaterally estopped Kansas Gas & Electric from seeking to prevent the documents' i
disclosure under FOIA.
e 3
Interestingly, in the companion cases (GAP v.
NRC and NAN v. NRC) the district court indicated in apparent dicta that, in the wake of Critical Mass Enerav Proiect v.
NRC, 975 F.2d 871 (D.C. Cir.
1992) (en banc), the NRC now may be free to withhold the Kansas Gas & Electric documents under FOIA exemption 4, even though the agency decided originally in 1987 to release them.
We will work with the Department of Justice in resolving this anomaly.
Plaintiff has sixty days to appeal.
Attachment:
Memorandum Opinion
Contact:
John F.
Cordes 504-1600 014
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n F. Cordes olicitor DISTRIBUTION:
Commissioners OGC OCAA OIG OCA OPP EDO SECY
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t ATTACHMENT -
Environmental and Resources Conservation Oraanization v. NRC,
'I No. 92-70202 (9th Cir., June 30, 1993) f i
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NOT FOR PUBLICATION C21U7"T1 MT UNITED STATES COURT OF APPEALS U 3 COC~0 0= EU FOR THE NINTH CIRCUIT ElWIRONMENTAL AND RESOURCES
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CONSERVATION ORGANIZATION,
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)
Petitioner,
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No. 92-70202
)
v.
)
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UNITED STATES NUCLEAR
)
MEMORANDUM
- REGULATORY COMMISSION and
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UNITED STATES OF AMERICA,
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)
Respondents,
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SACRAMENTO MUNICIPAL UTILITY
)
- DISTRICT,
)
)
Intervenor-Respondent.
)
)
Petition to Review Decision of the United States Nuclear Regulatory Commission Argued and Submitted May 13, 1993 San Francisco, California Filed 1993 Before:
REINHARDT, TROTT, and RYMER, Circuit Judges The sole iscue before us is whether the Respondent United States Nuclear Regulatory Commission ("NRC") erred in ruling that Petitioner Environmental Resources and Conservation Organization
("ECO") lacked standing to intervene in a proceeding relating to an application by Intervenor-Respondent Sacramento Municipality District ("SMUD") to change its license for the Rancho Seco
- This disposition is not appropriate for publication and may not be cited to or by courts of this circuit except ir accordance with 9th Cir. R.
36-3.
Nuclear Power Plant from an operating license to a " Possession Only License (" POL").
Because we find that the NRC committed no reversible errors in arriving at its decision, we deny ECO's petition for review.
ECO raises four arguments in support of its contention that it had standing before the NRC.
First, it professes that the dismantling of a nuclear power plant amounts to environmental damage within the meaning of the National Environmental Policy Act
("NEPA").
Second, it contends that the loss of employment i
suffered by members of ECO satisfies standing under NEPA.
ECO's final two arguments involve the failure of the NRC to require the preparation of an Environmental Impact Statement ("EIS") for the issuance of the POL.
ECO argues that this omission may cause its members to suffer the effects of global warming and increased pollution from the replacement of Rancho Seco with plants that use fossil fuels.
It also maintains that the NRC's failure to prepare an EIS will interfere with its ability to comment upon and distribute information to its members regarding the environmental consequences of shutting down Rancho Seco, activities that are fundamental to ECO's organizational purposes.
The NRC and SMUD contend that while ECO made all four of these arguments to the administrative law judges on the Atomic Safety Licensing Board,- it failed to raise the first and third arguments to the agency itself and therefore, may not raise them here.
See California Cartage Co. v. United States, 721 P.2d 1199, 1204 n.4 (9th Cir. 1983), cert. denied, 469 U.S. 827 (1984).
We 4
have reviewed the record, and we agree.1/
We, therefore, address only ECO's employment and informational standing arguments.
The NRC correctly rejected ECO's employment standing argument.
First, while NEPA does encompass economic harms, those harms must be caused by environmenta] damage.
Port of Astoria, Oregon v.
Hodel, 595 F.2d 467, 475 (9th Cir. 1979).
The i
dismantling of a nuclear power plant is not per se environmental damage, unlike the pollution of a stream or the cutting down of a forest.
For this reason the alleged profound economic injury suffered by ECO's members falls outside the scope of NEPA.
Second, under the particular facts of this case, the effect upon the employment of ECO members of the NRC's decision to approve or deny SMUD's POL application is simply too remote to support standing, even under NEPA.
The NRC denied ECO's informational standing argument on the l
ground that the organization failed to demonstrate a particularized injury resulting from the failure to prepare an EIS.
ECO correctly contends that the NRC was mistaken in its belief that the organization's articles of incorporation were drawn up after ECO had filed its petition for intervention.
However, this was only one of a number of factors mentioned by the NRC when it rejected ECO's informational standing argument.
By itself, the error provides insufficient grounds for vacating the agency's decision.
In its opening brief to this court, ECO raised no other specific argument regarding the NRC's informational I
1 1/Likewise, ECO forfeited the argument that it has standing under the Atomic Energy Act because it failed to make this argument to the NRC.
standing ruling.
The NRC opir. ion discusses the informational standing issue at considerable length and analyzes several legal opinions and theories that it found either controlling or distinguishable.
ECO failed to discuss these opinions or theories in its opening brief, and thus failed to advise this court in what respects, if any, they may be in error.
Accordingly, we do not consider any such questions here.
Nor do we resolve the merits of the NRC's ruling regarding informational standing.
We decide only that ECO failed to set forth in its opening brief any grounds upon which this court can base a reversal or vacation of that ruling.
ECO also argues that the Atomic Safety Licensing Board denied it due process by striking two of its filings, by failing to serve it with copies of two NRC staff documents, by failing to require SMUD to prepare an environmental report and by not discussing ECO's contentions adequately.
The NRC did not reach these arguments because it affirmed the Board's decision that ECO lacked standing.
To the extent that ECO's due process claims concern matters relevant to its standing arguments, they merited consideration by the NRC.
However, we find that in failing to address them the NRC did not commit any prejudicial error.
The portions of ECO's further amendment to its petition that were excluded dealt with arguments that the organization also addressed in filings that the Board accepted.
Thus, their exclusion had no impact on the outcome of the proceeding.
Unlike the excluded amendments, the excluded contentions did not relate to standing; nor does the argument that the Board violated its own regulations in failing to require SMUD to file an environmental report.
_4
Accordingly the failure to consider these matters was non-prejudical with respect to the standing question.
Finally, ECO fails to show how either the NRC staff's failure to serve it with copies of two documents or the Board's alleged failure to explain adequately the reasons for its rejection of several of ECO's arguments was prejudicial to ECO or affected the outcome of its standing claims.
Moreover, the Board's decision satisfies the mandates of the Administrative Procedure Act, 5 U.S.C. S 555(e).
For the foregoing reasons the petition for review is DENIED.2/
J l
2/ ecause we find that the NRC did not err in declining to hold a B
hearing on SMUD's application for a POL, we need not reach ECO's argument that the Sholly Amendment, 42 U.S.C. 5 2239(a)(2)(A),
does not apply to such applications.
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Environmental and Resources Conservation Org.
v.
United Sta Nuclear Regulatory Comm*n No. 92-70202 C'~M On. _ :~ ~~1 CF
U.5. c;'.':.u.:s nM12
- RYMER, J.,
concurring:
I join the per curiam disposition, but I would resolve the Environmental and Resource Conservation Organization's (ECO) f economic and informational standing claims on the ground that ECO asserts no injury which could be redressed by an action of the Nuclear Regulatory Commission (NRC) in the possession-only license (POL) proceeding.
See Allen v. Wright, 468 U.S. 737, 751 (1984)
(standing requires injury, causation, and redressability).
The denial of a POL would not cause the Sacramento Municipal Utilities District (SMUD) to reopen the Rancho Seco reactor.
That decision is outside the jurisdiction of the NRC and can only be made by some combination of SMUD, the voters of SMUD, and any other entity which might acquire Rancho Seco from SMUD.
Therefore, the loss of employment by ECO's members would not be reversed by denial of a POL.
Likewise, ECO's asserted informational injury is not associated with any redressable concrete injury.
See Lujan v. Defenders of Wildlif,e, U.S.
112 S. Ct. 2130, 2148 n.8 (1992) (a plaintiff who asserts a i
procedural right does not have standing unless "the procedures in question are designed to protect some threatened concrete interest i
that is the ultimate basis of.
. standing"); Foundation on Economic Trends v.
Lyng, 943 F.2d 79, 84 (D.C. Cir. 1991)
(requiring concrete injury to supplement informational injury).
l i
ATTACHMENT -
Governinent Accountability Proiect v. NRC, Civ. no. 86-3201; Nuclear Awareness Network v. NRC, Civ. no. 86-3201 (consolidated cases)
(D.D.C., decided July 2, 1993).
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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA p } [ ~ }.
A - A ION GOVERNMENT ACCOUNTABILITY )
- PROJECT,
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.s. msimc: couar
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oisimc7 of: cotur. ism
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Plaintiff,
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Civil Action No. 86-1976 TFH
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UNITED STATES NUCLEAR
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i REGULATORY COMMISSION,
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Defendant.
)
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NUCLEAR AWARENESS NETWORK, )
)
Plaintiff,
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v.
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Civil Action No. 86-3201 TFH
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UNITED STATES NUCLEAR
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(Consolidated)
REGULATORY COMMISSION,
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Defendant.
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MEMORANDUM OPINTON I.
Background
This consolidated suit represents a series of related claims under the Freedom of Information Act ("FOIA"),5 U.S.C. 6 552, to compel disclosure of documents concerning the Wolf Creek Nuclear Generating Station in Burlington, Kansas. Specific allegations of wrongdoing within the facility, which is operated by United States Nuclear Regulatory Commission ("NRC") licensee Kansas Gas & Electric Company ("KG&E"),
i 1
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L AO 72A (Rev. BIE2)
f-(~
began to surface in 1984. These allegations were the subject ofinvestigations by Quality First, KG&E's in-house safety oversight program, and by NRC's Office of Investigations
("OI") but were not pursued beyond the investigatory stage. Plaintiffs Government Accountability Project (" GAP") and Nuclear Awareness Network (" NAN") are public interest " watchdog" organizations seeking to examine the processes by which these investigations were carried out.
Plaintiff GAP has requested documents concerning KG&E's obligation to report the results ofits internal investigation to NRC (FOIA request #85-101). In addition to these documents, plaintiff NAN has requested material concernmg OI's investigation of alleged wrongdoing at the Wolf Creek facility and copies of documents produced by KG&E in connection with the alleged wrongdoing and obtained by NRC through a confidential source' (FOIA requests #85-161,2 #85-327, and #85-600). The Court will consider each category of documents separately. Before the Court are plaintiffs' motions for additional discovery and defendant's motion for partial summary judgment.'
2 This request specifies documents that are the subject of pending reverse-FOIA litigation between KG&E and NRC, Civil Action No. 87-2748 (TFH). Pending resolution of this litigation, the parties have not specifically addressed these documents.
A Memorandum Opinion and Order in that case is filed today.
2 This request includes documents produced by the Department of Labor.
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Defendant's motion is panial only insofar as it does not include documents produced by KG&E and obtained by NRC (discussed in Part D of this Opinion).
2 h
Ao 72A (R:v. 8/82)
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II.
Discussion A.
Summary iudement standard Rule 56 of the Fedeml Rules of Civil Procedure requires summary judgment to be entered when the moving party shows "that there is no genuine issue as to any matenal fact and that the raoving party is entitled to judgment as a matter oflaw." Fed.R.Civ.P.
56(c). It is well settled that "the general standards under Rule 56 apply with equal force in the FOIA context." Washington Post Co. v. Deo't of Health and Human Serv.,865 F.2d 320, 325 (D.C. Cir.1989) (citing cases). These standards require the district court to view the evidence in the light most favorable to the nonmoving party and to grant summary judgment only when the evidence is such that a reasonable jury could not retum a verdict for the nonmoving party. Anderson v. Liberty Lobby. Inc.,477 U.S. 242,248 (1986).
B.
Documents concernine KG&E's oblication to reoort allegations of wroncdoing In response to plaintiffs' FOIA requests and through subsequent admuustrative appeals, NRC has released all but five identifiable documents, labelled in NRC's Vaughn index' as P-2 through P-6.5 Portions of the remaining documents have been withheld
' Vauchn v. Rosen,484 F.2d 820 (D.C. Cir.1973), scrL demed,415 U.S. 977 (1974).
5 These documents comprise the balance of GAP's contested FOIA claims but lD. represent only part of NAN's claims. NAN's other claims are addressed in Parts C 3
i AO 72A (Rev. BIB 2)
pursuant to Exemptions 5 and 7(C).' The Court has exammed these documents in camera, pursuant to 5 U.S.C. i 552(a)(4)(B), to determme whether exercise of these exemptions is legitimate. The Court finds that four of these documents were properly withheld, but one, P-4,7 must be disclosed to plaintiffs.
Exemption 5 To protect an agency's ability to make informed and well-reasoned policy decisions, Congress explicitly exempted from disclosure under FO1A " inter-agency or inaa-agency memorandums or letters which would not be available by law to a party other than an agency in litigation with the agency." 5 U.S.C. i 552(b)(5). This language has been interpreted to encompass documents unavailable through ordinary civil discovery procedures, including documents protected by a recognized privilege. EPA v.
Mink, 410 U.S. 73, 85-86 (1973). Predecisional memorandums or those reflecting the deliberative process, therefore, may be exempted from disclosure. See Petroleum Info.
Coro. v. U.S. Deo't of the Interior, 976 F.2d 1429,1433 (D.C. Cir.1992). It was Congress' intention that agency officials be free to discuss, debate, and reject a wide range of policy options without undue senttiny. Sec Mead Data Cent. Inc. v. U.S.
Deo't of the Air Force,566 F.2d 242,256 (D.C. Cir.1977). The Supreme Court explained this position in NLRB v. Sears. Roebuck & Co.,421 U.S.132,152 (1975):
"The public is only margmally concerned with reasons supporting a policy which an
- 5 U.S.C. i 552(b)(5), (b)(7)(C).
7 Memorandum to Ben B. Hayes from James A. Fitzgerald, entitled "Reportability of Wrongdoing to NRC," dated Jan. 9,1985.
4 Ao 72A (Rev. B/B2)
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i agency has rejected, or with reasons which might have supplied, but did not supply, the basis for a policy which was actually adopted on a different ground."
However, documents interpreting or explaining existing policy do not fall within Exemption 5. Sco Sterling Drue.. Inc. v. FTC,450 F.2d 698, 708 (D.C. Cir.1971).
As such material will by definition be post-decisional, its disclosure ve31 not affect the agency's ability to make well-informed decisions, which is the purpose behind the exemption. NLRB v. Sears, 421 U.S. at 151. The fact that these communications might sometimes be characterized as " opinions" does not transform them into exempt deliberative work product, ifindeed they serve to define or clarify agency policy.
A careful analysis of the five documents withheld from plaintiffs reveals that only one, P-4, fails to satisfy the requirements of Exemption 5. Contrary to NRC's Vauchn index, this document does not "contemplat[e] expansion of agency investigative policy" or "reflec[t] exchange of ideas and information in formulating new policy" but in fact interprets NRC's existing policy with respect to licensees' obligation to report wrongdoing to the agency. The fact that agency officials wish to apprise themselves of existing policy while considering alternatives does not relieve them of their obligation to make public such existing policy. Nor can this document be charactenzed as attorney work product, within the meaning of Hickman v. Taylor,329 U.S. 495 (1947).
Although written by the NRC Assistant General Counsel, it was not prepared in contemplation of litigation but in response to an inquiry regarding the NRC's current policy on reponability of wrongdoing.
5 AO 72A (R:v. 8/62)
b As for the other four documents in this category withheld from plaintiffs, the Ct un finds the deleted material to be within Exemption 5 or 7(C),' as claimed, and that the Vauchn index adequately describes and properly classifies the deletions. Compare Foundine Church of Scientolorv v. Bell, 603 F.2d 945,948-49 (D.C. Cir.1979). In addition, the agency seems to have made every effon to release all reasonably segregable factual portions of the records, in compliance with the requirements of 5 U.S.C. (
552(b).
C.
Documents concerninc OI's investication of wrongdoine at the Wolf Creek facihty NRC has withheld docu:r ents in this category pursuant to Exemptions 5, 7(C),
and 7(D).' A careful review of the record has persuaded this Court that these exemptions have been properly and legitimately exercised.8 Exemotion 5 Exemption 5 exempts from disclosure materials consisting of " inter-agency or intra-agency memorandums or letters which would not be available by law to a pany...
" Investigatory records compiled for law enforcement purposes" whose disclosure would " constitute an unwarranted invasion of personal privacy." 5 U.S.C. 6 552(b)(7)(C).
' 5 U.S.C. 6 552(b)(5), (b)(7)(C), and (b)(7)(D).
8 The Depanment of 12bor has also withheld documents or portions of do:uments punuant to Exemptions 5 and 7(C). Plaintiff NAN does not challenge these exemptions.
See Statement of Genuine Issues and Memorandum of Points and Authorities in Opposition to Defendant's Motion for Summary Judgment. On the basis of the Declaration of Herben J. Cohen, Deputy Administrator, U.S. Dep't ofI2bor, the Coun is persuaded that these exemptions have been exercised properly.
Ao 72A (Rw. 842)
in litigation with the agency." 5 U.S.C. i 552(b)(5); discussed supa at 4-5. NRC asserts this exemption to withhold documents and investigators' notes concerning the status of Ol's Wolf Creek investigations. Declaration of John C. Hoyle, Assistant Secretary, NRC (" Hoyle Declaration") at 12-13. As these materials are inherently predecisional and deliberative in nature, they are properly exempt from disclosure under FOIA.
This Court has not reviewed these documents in camera but has relied instead on defendant's affidavits and supporting material in judging the applicability of Exemption 5.
Given the constraints on judicial resources faced by this and other federal courts, such reliance must usually suffice, except where such affidasits and supporting material are nonspecific, conclusory, or impugned by evidence of bad faith. Foundine Church of Scientoloev v. Nadonal Sec. Acenev, 610 F.2d 824, 830 (D.C. Cir.1979). This is not the case here." A decision not to review documents in camera lies within the sound discretion of the trial court. Ssc Center for Auto Safety v. Environmental Protection Acency, 731 F.2d 16, 20-21 (D.C. Cir.1984). 2
" Although plaintiffs' supporting materials insinuate bad faith by the agency, such charges are excessively generahzed, clearly speculative, or related to matters, such as
'Diree Mile Island, that are not before the Court. Src GAP's Opposition to Defendant's Motion for Panial Summary Judgment (" GAP's Opposition"); Affidavit of Billie P.
Garde, Staff Attorney with plaintiff GAP (" Garde Affidavit").
32 Given the NRC's misapplication of Exemption 5 to Document P-4, discussed
- supa at 5, the Court directs the defendant to take steps to ensure that no post-decisional documents art among those withheld under this exemption.
7
\\1 AO 72A (R:v. Et2)
e Exemotion 7(C)
This exemption protects " investigatory records compiled for law enforcement purposes" whose disclosure would " constitute an unwarranted invasion of personal privacy." 5 U.S.C. i 552(b)(7)(C). The rationale behind this exemption is that the purpose of FOIA, "to open agency action to the light of public semtiny," Deo't of the Air Force v. Rose,425 U.S. 352,372 (1976), is not served by disclosing private information about individuals that has no bearing on the official conduct of an agency.
Ecc Stern v. FBI,737 F.2d 84,93 (D.C. Cir.1984). Particularly where the allegations are highly inflammatory, the privacy interests of the parties involved outweigh the public right of access, and conservative disclosure is warranted. Scc, g, Kine v. Deo't of Justice, 830 F.2d 210, 233 (D.C. Cir.1987) (exemption applies to persons with a
" cognizable interest in the privacy of their involvement in a law-enforcement investigation"); Reporter's Comm. for Freedom of the Press v. Deo't of Justice,489 U.S. 749 (1989).
NRC has asserted Exemption 7(C) to delete names and other identifying information from repons generated by OI pursuant to its investigatory authority,10 C.F.R. I 1.36 (1987). Hoyle Declaration at 14-17. The allegations concern such I
provocative subjects as sexual harassment and drug abuse; concern for personal privacy is surely warranted. NRC has properly released all re>conably segregable factual portions of the documents.
8 Ao 72A l
(Nv. BIE2)
i Exemption 7(D)
Exemption 7(D) protects materials compiled for law enforcement purposes, whose disclosure would reveal the identity of a confidential source. 5 U.S.C. 6 552(b)(7)(D).
Sec United Technoloides Coro. v. NLRB,777 F.2d 90,93 (2d Cir.1985). Such disclosure would severely impair the ability of agencies to perform investigatory functions.
A recent case, Deo't of Justice v. L2ndano, - U.S.
, 61 U.S.L.W. 4485 (1993),
clarifies the circumstances under which an agency may claim that a source is
" confidential" within the meamng of Exemption 7(D). The Court held that agencies are not entitled to a presumption of confidentiality for all sources, even if the information was obtained for law enforcement purposes. Instead, the agency must submit an index describing the circumstances of each interview yielding information the agency wishes to withhold and demonstrating that the source spoke under an express or implied promise of confidentiality. However, where the circumstances " characteristically suppen an inference of confidentiality," id. at 4488, the agency's description may be somewhat more conclusory to avoid violating that trust and hampering future law enforcement effons. Among the categories of sources the Coun found would generally support an inference of confidentiality were paid informants, witnesses to a gang-related crime, and those reasonably fearing reprisal. Id. at 4489.
NRC has withheld names and other identifying information of persons who provided information to agency investigators about potentially criminal matters involving i
9 AO TrA (Rev. 8/82)
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co-workers;" such a situation plainly implicates a risk of reprisal. The Court is
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satisfied that, under the circumstances, these individuals cocperated with the agency under express or implied assurances of confidentiality; the agency's Vaughn index is sufficiently detailed in accordance with Landano. Esc also Jaffe v. CIA,573 F. Supp.
377,386 (D.D.C.1983). Accordingly, the Court holds that the NRC has properly invoked Exemption 7(D).
D.
Documents produced by KG&2 in connection with alleted wrongdoine and obtained by NRC through a confidential source
Pending resolution of its litigation with KG&E, NRC has not in its pleadmgs in this case specifically addressed these documents or relied upon a particular exemption to withhold them from plaintiffs. However, in its communication with KG&E, it has identified Exemption 4" as the most likely possibility.28 To foreclose another round of lawsuits on these sane documents, the Court will address the applicability of this exemption to the documents.
The Court of Appeals established a two-part test in National Parks and Conservation Ass'n v. Morton, 498 F.2d 765 (D.C. Cir.1974) to govern the applicability of Exemption 4 to documents obtained by agencies:
" Hoyle Declaration at 17-18.
Matenal cited in this section was filed under Civil Action No. 87-2748 (TFH).
" " Trade secrets and commercial or financial information obtained from a person and privileged or confidential." 5 U.S.C. i 552(b)(4).
i
Letter to Jay E. Silberg from William H. Briggs, dated June 1,1987.
10 Ao 72A (Retr. 8/82) j
e Commercial or financial matter is " confidential" if disclosure of the information is likely... either... (1) to impair the Government's ability to obtain necessary information in the future; or (2) to cause substantial harrn to the competitive position of the person from whom the information was obtained.
M. at 770 (footnote omitted). The court in Critical Mass Enercy Proiect v. NRC, 975 F.2d 871 (D.C. Cir.1992) (" Critical Mass II") reaffirmed this test but limited its application to situations in which a person is required to submit information to an agency.
In such a situation, an agency's disclosure of information - even information which "would customarily not be released to the public by the person from whom it was obtained," Critical Mass Enercy Proiect v. NRC, 830 F.2d 278, 281 (D.C. Cir.1987)
(* Critical Mass I") - is not likely to affect the agency's ability to obtain sinular information in the future, although it may affect its reliability. Sm Wachincton Post Co.
- v. Deo't of Health and Human Serv., 690 F.2d 252,268-69 (D.C. Cir.1982).
However, when a person submits information to an agency mluntarily, its disclosure, if contmry to the person's own disclosure policy, will jeopardize future cooperation by that person. Critical Mass II,975 F.2d at 878. Hence, Critical Mass II enunciated a new test to govern those documents submitted to an agency voluntarily: "[F]inancial or commercial information provided to the Government on a voluntary basis is ' confidential'
.. ifit is of a kind that would customarily not be released to the public by the person from whom it was obtained." M. at 879. That KG&E's Quality First files are unavailable to the public is not to be doubted. Affidavit of Charles A. Snyder, Quality First Manager ("Snyder Affidavit") at 3.
The issue, then, turns on whether the documents were conveyed to the NRC voluntarily or involuntarily. Critical MutII provides little guidance here, as the 11 Ao 72A (R;v. 8!82)
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documents there at issue had been produced voluntarily by the originator, without any intervening espionage. Although the secret, unauthonzed delivery of documents in this case may be characterizec as " involuntary" in the purest sense, to penalize KG&E by applying the more stringent standard for involuntary transfer would contravene the spirit of Critical Mass II.87 Sm Marzen v. Deo't of Health and Human Serv.,632 F. Supp.
795, 802 (N.D.Ill.1986) (documents "never would have been in the public domain but for the [ initial] illegal act"). KG&E created the Quality First Program - and trade its files available to NRC - voluntarily and not in response to any NRC mandate. Snyder Affidavit at 2. Stingy application of Exemption 4 in this case will discourage candor between the Company and NRC in the long run and may well provoke the Company to dismantle the Quality First Program entirely. Such a result would hardly advance the goals of NRC or plaintiffs in this case. Moreover, the fact that NRC might legitimately have compelled KG&E to produce the documents ' is irrelevant. "So long as [the]
information is provided voluntarily, and so long as it is of a kind that [KG&E]
customarily withholds from the public, it must be treated as confidential." Critical Mass II,975 F.2d at 880. Accordingly, the Court finds that the more permissive standard i
" KG&E has pointed out that, under the NRC's own rules,10 C.F.R. { 2.790(c),
We documents would be afforded more protection from disclosure if the hTC had acquired them through legitimate channels. Plaintiff's [KG&E's] Memorandum of Points and Authorities in Opposition to Defendant's [NRC's] Motion for Summary Judgment at 10.
8 Although both KG&E and NRC appear to recognize NRC's authority to compel production of the documents at issue, letter to Wilham Briggs from Jay E. Silberg, dated June 26,1987, at 5; Defendant's [NRC's] Counterstatement of Material Facts at 4, this quesion is not before the Court.
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I governmg voluntary transfers is applicable, and NRC may legitimately withhold these documents under Exemption 4.
III.
Other Claims In addition to requesting disclosure of withheld documents, plaintiffs have requested (1) a written finding that the circumstances surrounding the withholding raised questions whether agency personnel acted arbitrarily and capriciously and (2) costs and reasonable attorneys' fees. For reasons discussed below, the Court will deny both requests.
A.
Written Findine of Bad Faith Despite plaintiff GAP's impassioned denunciation of the NRC as an agency
" waging... [a] war of secrecy... against the public,'" the Court is satisfied that the agency has met its burden of provirg that it has conducted a reasonably thorough investigation in response to plaintiffs' FOIA requests. Sec McGehee v. CIA, 697 F.2d 1095, 1101 (1983). The Garde Affidavit recounts a history of alleged misconduct by the NRC; however, it fails to challenge that agency's response to these particular FOIA requests. Without such a genuine issue of material fact in dispute, this Court must grant defendant's motion for partial summary judgment. Fed.R.Civ.P. 56(e).
Plaintiff GAP has submitted transcripts of testimony given before the Senate Committee on Governmental Affairs by current and former NRC employees critical of the agency's investigatory procedures in this and other contexts. Changing such
" GAP's Opposition at 4 13 A_o 72A_
procedures is the proper role for that body, not for this Court, which will not transform
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this " garden-variety disagreement"'* about a few identifiable documents into a full-scale investigation of the agency.
As noted above, the Hoyle Declaration and accompanying Vauchn index provide sufficient information to enable plaintiffs to deternune what specific information has been withheld from each document. Em Kine v. Deo't of Justice, 830 F.2d 210 (D.C. Cir.
1987) (Vauchn index must be sufficiently specific to enable meaningful review). The Court will therefore deny plaintiffs' proposed discovery motion,22 which seeks to elicit more detailed information about withheld documents than FOIA requires. Sg Vauchn v.
Rosen, 484 F.2d 820, 826 (D.C. Cir.1973), stIL demed, 415 U.S. 977 (1974).
B.
Attomevs' Fees Before attorneys' fees may be awarded in a FOIA suit pursuant to 5 U.S.C. i 552(a)(4)(E), plaintiffs must demonstrate that they are, first, eligible and, second, entitled to receive such an award. Church of Scientolorv of Cal. v. Harris, 653 F.2d 584,587 (D.C. Cir.1981). Eligibility requires that the plaintiffs "substantially prevailed." Cuneo
- v. Rumsfeld,553 F.2d 1360,1365 (D.C. Cir.1977). This term has been interpreted to mean that the litigation was reasonably necessary to obtain the information and that the 2
GAP's Opposition at 3.
2' Contml over the discovery process lies within the discretion of the trial court.
Laborers' Int'l Union v. Deo't of Justice, 772 F.2d 919,921 (D.C. Cir.1984). It is not an abuse of discretion to consider a motion for summary judgment in a FOIA suit without granting additional discovery. Sm Goland v. CIA, 607 F.2d 339, 352 (D.C. Cir.1978).
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litigation caused the agency to release the documents sought. Church of Scientolorv v.
Hanis, 653 F.2d at 588. In this case, the plaintiffs did "substantially prevail" as to one document, P-4, but not as to the others, which were either released through NRC's standard administrative channels or legitimately withheld.
Whether the plaintiffs are entitled to attorneys' fees is left to the sound discretion of the trial court. Fenster v. Brown, 617 F.2d 740 (D.C. Cir.1979). This inery may be guided by four factors, outlined in Cuneo, 553 F.2d at 1364:
(1) the benefit to the public, if any, derived from the case; (2) the commercial benefit to the complainant; (3) the nature of the complainant's interest in the records sought; and (4) whether the government's withholding of the records had a reasonable basis in law.
At a minimum, the trial court must always keep in mind the basic policy of the FOIA to encourage the maximum feasible public access to government information and the fundamental purpose of 6 552(a)(4)(E) to facilitate citizen neer" to the courts to vindicate their statutory rights.
Nationwide B1de. Maintenance. Inc. v. Sampson,559 F.2d 704, 715 (D.C. Cir.1977).
Where the circumstances indicate that award of attomeys' fees is not necruary to implement the goals of FOIA, denial of fees is not an abuse of discretion. Ecc Stein v.
Deo't of Justice & FBI,662 F.2d 1245 (7th Cir.1981). In Sicin, the court based its Idecision to deny attorneys' fees on two factors:
1 most of the time expended by [the plaintiff] and his attorney related to proceedmgs in which [the plaintiff] did not prevail and, as a lawyer, [the plaintiff] was not the son of average person who Congress contemplated would face insurmountable barriers to conducting litigation under FOIA.
Id. at 1263 (foomote omitted).
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In response to plaintiffs' requests, the NRC micased a large number of documents in their entirety. Many others were only partially redacted, to protect aw and j
identities of individuals. The disclosure of one document, which t C < : u herewith ordering, does not warrant reimbursement of attorneys' fees, especially when, as in Skin, most of those fees were expended in an unsuccessful effort to obtain other documents.
Moreover, the Court finds that plaintiffs are not "the sort of average person" designed to benefit from FOIA's fee provision. As organized " watchdog" groups dedicated to scrutinizing the policies of the NRC and other agencies, plaintiffs would very likely have filed their FOIA suits even absent the possibility of fee reimbursement.
IV.
Condusion In accordance with the foregoing analysis of plaintiffs' FOIA requests and the exemptions claimed by defendant, the Court shall grant defendant's motion for partial summary judgment as to all contested documents except for P-4, which must be disclosed. The Court will deny plaintiffs' motion for additional discovery as well as plaintiffs' requests for a written finding of bad faith and attorneys' fees.
An Order in accordance with this Memomndum Opinion shall be issued herewith.
I Dated 30 W /9 R3
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W Thomas F. Hog (/
United States District Judge 16 Ao 72A (R;v. 8/82)
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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUhfBIA FILED GOVERNhiENT ACCOUNTABILITY )
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ctrax. L.s. OsTar:7 COURT,
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DISTRICT OF COLUMBIA Plaintiff,
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Civil Action No. 86.1976 TFH
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UNITED STATES NUCLEAR
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REGULATORY COMhilSSION,
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Defendant.
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NUCLEAR AWARENESS NEITVORK, )
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Civil Action No. 86-3201 TFH
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UNITED STATES NUCLEAR
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(Consolidated)
REGULATORY COMMISSION,
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Defendant.
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ORDER In accordance with the Memorandum Opinion issued herewith, and for the reasons stated therein, it is this J0Mday of June,1993, ORDERED that defendant must disclose to plaintiffs, within 21 days of this order, the full text of Memorandum to Een B. Hayes from James A. Fitzgerald, entitled "Reportability of Wrongdoing to NRC," dated Jan. 9,1985, labelled as document P-4 in defendant's Vauchn inder; and it is j
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ORDERED that the defendant's motion for partial summary judgment as all other documents pursuant to plaintiffs' FOIA request is granted; and it is ORDERED that plaintiffs' motion for additional discovery, and requests for a written finding of bad faith and attorneys' fees is denied; and it is ORDERED that the above captioned case is dismissed with prejudice.
V W Thomas F. Hog'n Uni'ed States
'e Judge
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ATTACHMENT -
Kansas Gas & Elec. v.
NRC, Civ. no. 87-2748 (D.D.C.,
decided July 2, 1993)
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UhTTED STATES DISTRICT COURT pg[{g FOR THE DISTRICT OF COLUMBIA JUL - 21993 KANSAS GAS AND ELECTRIC
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CLERK, U.S. DISTRICT CouRI COMPANY, si ab,
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DISTRCT OF. COLUMBIA
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Plaintiffs,
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v.
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Civil Action No. 87-2748 TFH
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UNITED STATES NUCLEAR
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REGULATORY COMMISSION,
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Defendant,
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and
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NUCLEAR AWARENESS NETWORK, )
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Defendant-Intervenor.
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MEMORANDUM OPINION I.
Background
Plaintiff Kansas Gas and Electric Company (" Company") seeks to prevent defendant United States Nuclear Regulatory Commission ("NRC") from disclosing certain
' documents to third parties, including defendant-intervenor Nuclear Awareness Network
(" NAN"). In a sepamte case pending before the Court,' NAN and the Government Accountability Project (" GAP") have sought production of these and other documents from defendant, pursuant to the Freedom of Information Act ("FOIA"),5 U.S.C. 6 55'2 (1988). The documents at issue are materials compiled through the Company's Quality Cidi Action Nos. 86-3201/86-1976 (consolidated).
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First Pmgram, an in-house safety oversight scheme driven by confidential employee participation. NRC obtained copies of the documents through an unknown source and without authorization.
NRC initially refused to release the documents to NAN and GAP on the ground that the documents related to an ongoing investigation and were therefore exempt under d FOIA Exemption (7)(A). At the conclusion of its investigation, however, NRC could identify no other applicable exemptions and notified the Company that it intended to disclose the documents,. with names redacted to pmtect the privacy of individuals. In a letter to the NRC, the Company expressed specific objections to disclosure, claiming that the documents were not " agency records" subject to FOIA and that disclosure must be denied under FOIA Exemption 4 (confidential trade secrets and commercial or fmancial information).3 Although NRC subsequently rejected the Company's arguments,' the record does not indicate that NRC actually disclosed the disputed documents. Pending before the Court are cross-motions for summary judgment.
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H.
Discussion A.
Summary iudgment standard Rule 56 of the Federal Rules of Civil Procedure requires summary judgment to be entered when the moving party shows "that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P.
2 letter to Wilham H. Briggs from Jay E. Silberg, dated June 26,1987.
3 Letter to Jay E. Silberg from William H. Briggs, dated September 25,1987.
2 AO 72A (Rev 8!82)
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56(c). It is well settled that "the general standards under Rule 56 apply with equal force in the FOIA context." Washincton Post Co. v. HHS, 865 F.2d 320, 325 (D.C. Cir.
1989) (citing cases). These standards require the district court to view the evidence in the light most favorable to the nonmoving party and to grant summary judgment only when the evidence is such that a reasonable jury could not return a verdict for the nonmoving party. Anderson v. Libenv Lobby. Inc.,477 U.S. 242, 248 (1986).
B.
Reverse-FOIA suit i.
Congress' primary purpose in enacting FOIA was to facilitate the free flow of U
b information to the public. Scc Chrysler Coro. v. Brown,441 U.S. 281,290 (1978).
The statute authorizes the federal couns to " enjoin the agency from withholding agency records and to order the production of any agency records improperly withheld...." 5 U.S.C. i 522(a)(4)(B). However, in keeping with the statute's bias toward disclosure, the courts lack authority under FOIA to enjoin disclosure. Artesian In:!us. v. Deo't of Health and Human Serv., 646 F. Supp.1004,1007 (D.D.C.1986). Moreover, whether j
or not to exercise a valid exemption to disclosure is within the sole discretion of the agency. Mead Data Cent. Inc. v. U.S. Dent. of Air Force,566 F.2d 242,258 (D.C.
i Cir.1977). A pany seeking to prevent disclosure must therefore demonstrate more than i
i that a panicular exemption is applicable or that a document is not an " agency record" within the meaning of the statute. Ecc Anesian Indus.,646 F. Supp.1007. To prevail I
in a reverse-FOIA suit, a plaintiff must rely on other sources of law, independent of FOIA, to justify enjoining disclosure. Sec Consumers Union of the United States. Inc. v.
3 Ao 72A (Rav. B/82)
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Consumer Prod. Safety Comm'n,590 F.2d 1209,1216 (D.C. Cir.1978). This the plaintiff below has failed to do.
Indeed, the Company's unsuccessful earlier attempt to persuade the Supreme Coun of Kansas to suppress disclosure of the same documents, then in the custody of defendant-intervenor NAN and others, effectively restrains it from raising such independent sources oflaw here. Kansas Gas & Elec. v. Eve, No.63-127 (Sup. Ct. of Kan., Apr. 13, 1990). That coun found the Copyright Act,17 U.S.C. 6101, et E, inapplicable to the documents. Kansas Gas at 11-12. Accordingly, this claim was not raised anew in this Coun. Sg Ancel v. Bullineton,330 U.S.183,189 (1947) (state court adjudication of federal question precludes subsequent federal action). The Kansas court also found the self-critical analysis privilege proffered by the Company to be inappropriate because the benefit to the public of disclosure outweighed its harm to the l
Company. Kansas Gas at 17. Although the Company raised this issue in its pleadings before this Court, the doctrine of collateral estoppel prevents relitigation in this forum.
Sg Allen v. McCurry, 449 U.S. 90 (1980).'
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- Whether res 3 - cata bars all other conceivable issues that might have been raised in state coun is not a relevant question here, because the Company has failed to advance alternative theories in ite ^"cadings.
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Conclusion For the nasons stated above, and based on the entire record, the Court shall grant the defendant's motion for summary judgment and shall enter an order dismissing the above-captioned matter.8
._ - f, Thomas F. Hogq6, )
United States District Judge i
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i 8 For a' discussion of recent case law in this circuit that clarifies the applicability of -
FOIA exemption 4, the parties are advised to refer to this Court's Memorandum Opuuon and Order in Civil Action Nos. 86-1976/86-3201 (consolidated), filed today.
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4 UhTTED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA KANSAS GAS AhD ELECTRIC
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COMPANY, st ab,
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Plaintiffs,
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v.
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Civil Action No. 87-2748 TFH
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UNITED STATES NUCLEAR
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REGULATORY COMMISSION,
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Fj({g
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D*f*"d*"
I JUL - 21993 and I
ctsRK. u.s. oisTaici count.
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otsTaicT or cotuus 4 NUCLEAR AWARENESS NETWORK, )
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Defendant-Interrenor.
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ORDER In accordance with the Memorandum Opinion issued in the hbove-captioned case on June 80,1993, it is this do day of June,1993, hereby ORDERED that the plaintiffs' motion for summary judgment is DENIED; and it is FURTHER ORDERED that the defendant's motion for summary judgment is GRANTED; and the above-captioned case is hereby DISMISSED.
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Thomas F. Hogang United States District Tudge 1
,1 AO 72A (Rec. 8/82) j j