ML20050G146

Appeals Denial of Fee Waiver Request for FOIA Documents. Documents Do Not Have to Be Relevant to Proceeding

ML20050G146
Person / Time
Site:	Perry
Issue date:	11/26/1981
From:	Ryan Alexander OHIO CITIZENS FOR RESPONSIBLE ENERGY
To:	NRC OFFICE OF THE EXECUTIVE DIRECTOR FOR OPERATIONS (EDO)
References
FOIA-81-436, FOIA-81-A-19 NUDOCS 8204140053
Download: ML20050G146 (3)

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APPEAL OF INITIAL FOIA DECISION I!ovenber 2G,1901

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Executive Director for Operations g

U.3. I!uclear Regulatory Commission Uashington, D.C.

20555 RE: Appeal from an Initial FOIA Foo Univer Decision; FOIA R Sir:

I have just roccived !!r. Felton's donial of Ohio Citicons for Responsible Energy ("0CRE") fee waiver request regarding the above FOIA request of October 26, 1981. As OCRE Interim Representativo and member in good standing, I hereby appeal that decision on the grounds enumerated below.

Houever, in the interest of expedience, I an enclosing along with a copy of this letter I will send to :r. Felton a check for S19.50.

Because my organ-ication needs the requested documents urgently, I wish that those funds be treated as a bond to cover the production costs of the requested documents in the event OCRE does not triumph on this appeal. OCRE, by sending this money voluntarily is by no means waiving its rights under 10 CFR 9.11 on this denial or any other denial, now or in the future. Please, then, send the requested documents as soon as possible. Should OCRE triumph on this appeal, please refund the " bond."

Grounds of Appeal ~

1.

In his letter of denial !!r. Felton states that "(t)here is a great disparity in the documents requested and the seven contentions granted in the Perry casc."

I believe that I!r. Felton has confused the nature of the FOIA with that of discovery in an adjudicatory proceeding. Uith regard to the latter, "(p)arties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter inv61ved in the proceeding...."

10 CFR 2.740 (b)(1). Thus, discovery is limited to those specific matters which are relevant to the proceeding. The FOIA carries no such limitation.

See 10 CFR 9.4 OCRE is free to request "any identifiable record" (Id.).

As an explanatory noto, OCRE's intervention strategy can be charactericed as a vigorous defense and representation of its members-and the public's in general-health and safety interest. And while seven contentions have been

ranted to date, OCRE is conducting an ongoing investigation and scarch to uncover other potential flaus anywhere in the Perry design, its construction or its ultimate operation which might adversely impact upon OCRE members.

OCRE is using the FOIA as a tool to locate those flaws.

Items 8 and 9 of OCRE's October 26 FOIA request, for exanple, will aid OCRE's investigation into the potential harmful effects of low level radiation flowing from Perry effluents. The requested documents will help OCRE frame a contention to that effect in the offing.

8204140053 811126 PDR FOIA ALEXAN81-A-19 PDR

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Felton's letter also states that I had " offered no information to the offect that it (OCRE) is incapable of paying the C10.50 reproduction cost...."

This goes to the ability of a requester to pay for any of the anticipated costs of reproducing or scarching for dacuments and information.

10 CFR 9.14a(c)(5).

Most of OCRE's forty odd members are students at various college campuses in Ohio: There are seven cach on the campuses of Cleveland State U. and the University of Dayton; five at Ohio Stato and four at Bowling Green State U. alone.

I myself an a student at the University of Houston.

It should be common knouledge that students in sencral have limited resources. At best, they have parttime, menial jobs at minimum wage, if they work at all.

I am not stating that our group is absolutely "incapabic" of paying the feo, as my check to Mr. Felton indicates. I am stating that in general it would be a hardship for OCRE to bear these costs. The funds of our group will go much farther if used in the acquisition of expert testimony or development of valuable exhibits for the Perry proceeding.

Further, this ability to pay is only one factor that the Commission uses to determino "if waiver or reduction of the fee is in the public interest because furnishing the information can be considered as primarily benefiting the general public." 10 CFR 9.14a(e). I ash: If furnishing the requested documents is not considered as primarily benefiting the general public, who is it benefiting? OCRE's intercats are synonymous with those of the public.

No resident of Northeastern Ohio can legitanately state that ho is not concerned about his health and safety given the operation of the Perry plant.

3.

Finally, Mr. Felton stated that because the requested documents uere

" publicly available," OCHE had to meet the compelling reason test for the waiver of fees as outlined in 10 CFR 9.14a(g). OCRE agrees that the compel-ling reason test is proper here but not that OCRE's rationale did not adequately meet it.

First of all, paragraph (a) was incorporated to deny fee waiver to those requestors who had relatively easy access to the documents and could with duc diligence view them. As "r.

Felton indicated the presence of the Perry LPDR in his letter of April 1,1981 (FOIA-01-114), I agree that our group could casily acquire (copy) those documents found at the Perry LPDR. But as he admits in this latest letter of donial, the requested documents are available in the h'ashington PDR. OCRE docs not, as described in Ground of Appeal number 2 above, have the resources or the personnel to traipse off to Washington, D.C. cverytime it identifics a document worthy of further inspection. OCRE has no relatively easy access to those documents held for public inspection in Washington, D.C.

In the alternative, I would stronuosly insist that the Commission is estopped from asserting its claim of public availability.

The Commission has on tuo earlier occasions (OCRE FOIA requests dated September 5 and 28, 1981) implicitly said OCRE did meet the compelling reason test under substantially 2

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l the on nc circumstancca. The documents requested in thoco to requccts were nico publicly available in 11achington, D.C.

And the rationale offered by my group at thoco tince was cimilar, if not identical, to the instant request.

I uould like to 1:now why it is that OCnE not the compelling rencon tect then but did not nou.

Daced upon the forcaoing three Groundo of Appeal, OCRE's request for waiver of fesa should properly be granted.

Mr. Felton's denial of that requect on novenbor 20, 1981 chould be respectfully overturned.

Sincerely, 1

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nobert Ale::ander OCRE Interim Representative 2030 Portsmouth St. #2

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Houston, TX 77008 (713) 521-3014 (7 am to 7:30am, C.S.T.)

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J.M. Felton Division of Rules and Records Office of Administration (with chect: enclosed as stated) 4 E

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November 20, 1981 Mr. Robert Alexander 0CRE Interim Representative 2030 Portsmouth Street #2 IN RESPONSE REFER Houston, TX 77098 TO F01A-81-362 y _3 L

Dear Mr. Alexander:

This is in response to your letter dated October 26, 1981 in which you requested that fees be waived for the reproduction of 51 documents which you listed in an attachment to your letter.

We have carefully considered your request and justification along with NRC regulations which prohibit the waiver of reproduction costs for publicly available documents. We have determined that your rationale does not meet the compelling reason test for fee waiver as outlined in 10 CFR 9.14a(g).

The documents you have requested are available in our Public Document Room (PDR), located at 1717 H Street, N.W., Washington, D.C. 20555.

There is a great disparity in the documents requested and the seven granted contentions in the Perry case.

In point of fact, only one of the 51 documents requested even mentions the Perry plant and that document bears no relationship to any of the granted contentions.

Further, while you mention that the group you rep ~ resent is a " bootstrap" operation, you have offered no information to the effect that it is incapable of paying the $19.50 reproduction cost for the 390 pages of documents.

In light of the above, we feel that the requested fee waiver is not justified.

This finding represents an insufficient public benefit presented to warrant the waiver of fees as required by NRC's mandate to evaluate "whether public payment should be made for essentially public benefits", (Attorney General's Preliminary Guidance Memorandum of the 1974 F0IA Amendments, December 11,1974). The person responsible for this deinal is the undersigned.

l This denial may be appealed to the Commission's Executive Director for Operations within 30 days from the receipt of this letter.

As provided in 10 CFR 9.11, any such appeal must be in writing, addressed to the Executive Director for Operations, U.S. Nuclear Regulatory Commission Washington, D.C. 20555, and should clearly state on the envelope and in the letter that it is an " Appeal from an Initial F0IA Fee Waiver Decision".

l Si cer ly, l

. M. Felton, Director Division of Rules and Records Office of Administration