ML20054C831
| ML20054C831 | |
| Person / Time | |
|---|---|
| Site: | Zimmer |
| Issue date: | 03/22/1982 |
| From: | Chilk S NRC OFFICE OF THE SECRETARY (SECY) |
| To: | Devine T GOVERNMENT ACCOUNTABILITY PROJECT |
| References | |
| FOIA-81-488, FOIA-82-A-1C NUDOCS 8204210785 | |
| Download: ML20054C831 (3) | |
Text
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GOVERNMENT ACCOUNTABILITY PROJECT m.qm Institute for Policy Studies 1901 Que Street. N.W., Washington. D.C. 20009 (202)234 9382 22 EP -2 P4 :Cl January 29',"1982 Mr. Samuel J. Chilk Executive Secretary AP. PEAL OF INITIAL FOIA DECISION Office of Admin.
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Nuclear Regulatory Commission Washington, D.C.
20555 g /g g g y
Dear Mr. Chilk:
This is an appeal pursuant to subsection (a) (6) of the Freedom of Information Act, as amended T5 U.S.C. 552).
On November 23, 1981, e
on behalf of Mr. Thomas Applegate, we requested copies of all notes,.
memoranda, telephone logs, tapes, diaries and/or other records pre-pared by U.S. government employees in connection with an August 7, 1981 Nuclear Regulatory Commission ( "N RC " ) Office of Inspector and Auditor ("OIA") report entitled "Special Inquiry re:
Adequacy of IE Investigation 50-358/80-9 at the William H.
Zimmer Nuclear Power Sta tion. " ("Zimmer OIA Report"), as well as the investigation the Zimmer OIA Report is based on.
In addition, we asked for all earlier full or partial draf ts and/or proposed supplements to the Zimmer OIA Report, as well as all records related to any deletions from its final version. (A copy is enclosed).
In connection with a letter dated December 31, 1981 and postmarked January 4, 1982, Mr. J.M. Felton of your agency partially granted our request. (His response is enclosed).
Mr. Felton's letter f ailed to cite any exemptions for the effective denial of the bulk of our request, concerning informal records; earlier draf ts and an explanation of any deletions.
Instead, he simply ignored those portions of the request and failed to provide the documents without any explanation or citation.
As a result, he vio-l lated the requirement of Vaughn v.
Rosen (I), 484 F.
2d 820 (D.C. Cir.
l 1973), cert. denied, 415 U.S.
977 (1977) to index and justify any records withheld.
We are convinced that the final version of the OIA report was not the only draft, since press accounts quoted an " official close to the investigation" to the ef fect that "[t} he critical report
'was watered down.'"
(The Cincinnati Enquirer, November 18, 1981, p.1).
There is little question that these records are available under the Act.
In Arthur Anderson, Inc. v.
IRS, 514 F.
Supp. 1173 (D.D.C.
1981),
the court held that numerous draf ts of revenue rulings,3.as.mell_as accompanying background information and notes were not exempt under exemption #5.
The court reasoned that those materials were generated before the adoption of agency policy and they were not part of the deliberative give and take of the consultative process.
This is l
clearly analogous to our case.
The investigative records and drafts we are asking for are factual in nature and are not part of the de-liberative process.
2/3..10 OGC to Prepare Response for Signature of SECY...Date due: Mar 2 Cnys to: FDO. RF.. 82-81 8204210785 820322 PDR FOIA DEVINE82-A-1C PDR
Executive Secretary Office of Admin.
Nuclear Regulatory Commission Page 2 If there.Were any doubt, in Playboy Enterprises v. U.S.
Dept. of Justice 516 F. Supp. 233 (D.D.C. 1981),
the court held that an internal F.B.I.
report concerning F.B,.I.
agents who infiltrated the Klu Klux Klan in the 1960's was not exempt, even though it was used by the Attorney General to form policy.
The evaluative report was considered informational in nature and was not a part of the deliberative process..
It only provided data to be evaluated by the Attorney General.
The factual portions, including the first drafts, did not reveal the deliberative process of the Attorney General's office.
OUr case fits precisely into this catagory.
What we are seeking concerns the entire factual record for the NRC investigation of Zimmer which Mr. Applegate challenged.
Mr. Felton has denied, under exemption #5, four documents identified..
as items 3-6 in Appendix B of his December 31, 1981 letter.
Mr. Felton characterized the records as " communications between Commissioners and their staffs" that " constitute advice, opinions, and recommenda-tions."
Obviously his description was not all-inclusive, however.
Mr. Felton continued, "These documents contain no reasonably segre-gable factual materials and are, therefore, being denied in their entirety."
There was no explanation for Mr. Felton's assertion that the non-exempt portions of the records are inseparable from the rest.
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The courts have required a restrictive interpretation of exemption.45.
As the Supreme Court stated in E.P. A'. v. Mink, 410 U.S.
73 (1973),
"This exception (#5) to the general disclosure mandate of FOIA should i
be construed as narrowly as consistent with efficient government action."
Further, the burden-of-proof'is on the agency to justify the exemption.
See e.g., Vaughn v. Rosen, 523 F.
2d 1144 (D.C. Cir. 19 7 5 ).... Mr.: 'Felton's asserted conclusion does not even attempt to satisfy this burden.
The default is not surprising, since the exemption is inapplicable.
As the court held in Taxation v.
IRS, 646 F.
2d 666, 677 (D.C.'Cir. 1981),
" Exemption #5 does not apply to agency actions which explain actions that an agency has already taken. "
See also Ryan v. Department of i
Justice, 617 F.2d 781 (D.C. Cir. 19 8 0) and Brinton v. Department of S ta te, 636 F. 2d. 600 (D.C. Cir. 198 0).
The Zimmer OIA report was an attempt to evaluate and explain a previous NRC investigation 'and I
enforcement action, as presented in Report No. 50-358/80-09.
As a result, exemption #5 does not apply to Commission-staff communications concerning the report.
l Even if the withheld records concerned deliberations about prospective agency policy, exemption #5 would not apply to facts, agency decisions, or existing agency policy, EPA v. Mink, 410 U.S.
73, 86 (1973).
That information can only be denied if it is " inextricably intertwined" with excmpt portions, Ryan v.
Department of Justice, 617 F.
2d 781, 790-91 (D.C. Cir. 1980). "Mr.
Felton of f ered no analysis why exempt portions i
of the Commissioners' memoranda could not simply be whited-out.
We l
are quite willing to appeal this denial to the courts for an in-camera review to determine segregability, Playboy v.
U.S.
Department of Justice, i
supra.
E'xecutive Secretary N Office of Admin.
Nuclear Regulatory Commission Page 3 In conclusion, we are seriously concerned that the Commission may not have dealt in good faith with this FOIA request.
Your response to this administrative appeal will determine whether we initiate a com-plaint under 5 U.S.C. Sec. 1206 (e) (1) (C) for an investigation of
" arbitrary and capricious withholding of information", as well as possible disciplinary action.
As provided in the Act, we will expect to receive a reply to this administrative appeal letter within twenty working days.
Sincerely,'
~,
homas Devine Associate Director Iy osenthal Staff Associate 0
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GOVERNMENT
- ACCOUNTADIUTY PROJECT insatute for Pol.cy Studies 1901 Que Sueet. N.W.. Washington. D.C. 20009 (202)23& 9382 November 23, 1981 Director Offim of Administration Nuclear Regulatory CaTmission Washirgton, D.C. 20555
'Ib Whcm it Fby Ocncern:
On behalf of our client, Mr. 'Itrxras Applegate, and pursuant to both tM Freedom of Information Act (5 U.S.C. 5552) and th3 Privacy Act (5 U.S.C.
S552a), we request copies of all notes, nenoranda, telephone logs, tapes, diaries and/or other records prepared by U.S. governnent employees in
)
cannection with an August 7,1981 Nuclear Pegulatory Cmmission ("NRC")
Office of Inspector and Auditor ("OIA") report entitled "Special Inquiry re:
Adegmcy of IE Investigation 50-358/80-9 at the William H. Zumer Nuclear Power Station " ("ZimTer OIA Peport"), as well as tha investigation tha ZimTer OIA-Enp3rt is based upone -In particubr, Mr. Applegate requests all earlier full or partial drafts and/or proposed supplements t6 the Zinner OIA Repart, as well as all records related to any del' tions frcm its e
final version.
If any material covered by this regtnst has been destroyed and/or r^cn6vecT, please piovide"all"stifreunciliig d55uiciiGtion including
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but not limited to a description of the acticn(s) taken, relevant date(s),
and justification for the action (s).
Mr. Applegate requests that fees be waived, because " finding the infornation can be considered as primarily benefitting the general public." 5 U.S.C. S 552(a) (4) (A).
The fee waiver sinuld be granted for three reasons.. First, he subnits this request to further th3 goals of his December 10, 1980 whistleblcwing disclosure to the Office of the Special Counsel of th2 bhrit Systems Protection Bcnrd. 'Ibe Special Counsel required an NBC investigation only after finding a reasonable belief that Mr. Apple-gate's disclosure evidenced illegality, misnunagenent, gross waste and i
a substantial and specific dnager to public h2alth or safety.
Unques-l tiombly, th3 Special Counsel finding and tha ensuing OIA Report - which I
fundaTentally clullenges the gen 2ric nature of hmC investigations -
proves that Mr. 7pplegate's concerns serve "the public interest. " He seeks l
these docurents in order to nonitor the adequacy. of the NBC respcnse.
Second, the findings of the ZimTer OIA Feport totally ignored twa vital issues in Mr. Applegate's whistleblcwing disclosure -
- 1) tha failure to adcqtutely review his criminal allegations of widesprea3 blacknnrkets, sauggling, and theft; and
. i. i.
- 2) the failure to ccntact witnesses in 7pril 1980 who would have l
exposed a series of issues six nunths b2 fore GW raised them with the ccmmission and the special Counsel.
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Director Office of Aiministration
!&x: lear Pegulatory Comission Ikncrnber 23, 1981
.Page TWo
'De Special Cbunsel had ordered the Coamission to respand to Loth allegations.
7hc docments Mr. Applegate requests nay help to explain why th2 Ctmnission dose to defy a legal requirement of the Civil Senice Reform Act. We subnit that it inherently serves the public interest to further understand the prtress that leads to goverment illegality.
Third, press accounts have contained charges that the report was " watered dawn." Although deleted portions woula not represent the ccmnission's findings, it is in the public interest to fully air the facts and conpeting policies in th2 rWte that produced this controversial docment.
She issue is of the utrost inportarre to the American people - the adequacy of t&C efforts to protect public health and safety.
For any docuacnts or portions of docunants that you deny due to a spa:ific exemption, please prcnide an index ite:nizing and describing docments or portions of docuaents withheld. 7he index should provide a detailed justification of your grounds for claiming each exemption, expInining why each exemption is relevant to the docujent or. portion withheld. Tnis index is required under Vaughn v. Rosen (I), 484 F.2d 820 (D.C. Cir.1973), cert. denied, 415 U.S. 977 (197,4).
We look forward to your response within ten working days.
Sincerely, Thcmas D2 vine Associate Director e
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UNITED sT ATEs y
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December 31, 1981 Mr. Thomas Devine Government Accountability Project 1901 Que Street, N.W.
IN RESPONSE REFER Washington, DC 20009 TO F0IA-81-488
Dear Mr. Devine:
This is in partial response to your letter dated November 23, 1981, in which you requested, pursuant to the Freedom of Information Act, copies of documents prepared in connection with the Office of Inspector and Auditor's report on IE's investigation of the Zimmer Nuclear Power Station.
The sixteen documents listed on Appendix A to this letter are enclosed in their entirety.
Portions of document 1 of Appendix B contain the names of p'ersons ttie release of which would constitute an unwarranted invasion of personal privacy and disclose the identities of confidential sources.
These
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names are being withheld pursuant to exemption (7)(C) and (D) of the Freedom of Information Act (5 U.S.C. 552(b)(7)(C) and (D)) and 10 CFR 9.5(a)(7)(iii) and (iv) of the Commission's regulations.
A portion of document 2 of Appendix B contains the name of a person the re' lease of which would constitute an unwarranted invasion of personal privacy.
This withholding is being made pursuant to exemption (7)(C) of the Freedom of Information Act (5 U.S.C. 552(b)(7)(C)) and 10 CFR 9.5(a)(7)(iii).
The non-exempt portions of these documents are enclosed.
Documents 3 through 6 of Appendix B are communications between Commissioners and their staffs and constitute advice, opinions and recommendations.
These documents contain no reasonably segregable factual material and are, therefore, being withheld in their entirety.
Release of this information would tend to inhibit future communications between and among Commissioners cnd their staffs, communication which is essential to the deliberative process.
This information is being withheld pursuant to exemption (5) of the Freedom of Information Act (5_U.S.C. 552(b)(5))
and 10 CFR 9.5(a)(5).
Pursuant to 10 CFR 9.9 and 9.15 of the Commission's regulations, it has been determined that the information withheld is exempt from production or disclosure, and that its production or disclosure is contrary to the public interest.
The persons responsible for the denial of documents 1 and 2 of Appendix B are the undersigned and Mr. Richard C. DeYoung, Director, Office of Inspection and Enforcement.
The person responsible for the denial of documents 3 through 6 of Appendix B is Samuel J.
Chilk, Secretary of the Commission.
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Mr. Thomas Devine
- The denial by f1r. DeYoung and myself may be appealed to the Executive Director for Operations within 30 days from the receipt of this letter.
Any such appeal must be in writing, addressed to the Executive Director for Operations, U.S. Nuclear Regulatory Commission, Washington, DC 20555, and should clearly state on the envelope and in the letter that it is an " Appeal from an Initial F0IA. Decision." The denials by Mr. Chilk may be appealed within 30 days to the Commission and should be addressed to the Secretary of the Commission.
9 Sin rely, 7
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. M. Felton, Director Division of Rules and Records Office of Administration
Enclosures:
As stated O
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Re:
T01A-81-488 APPENDIX A i
1.
1:cmorandum to G. A. Phillip from V. Stello, Jr., dated 1/16/81 lierit System Protection Board - Charges by IPS re:
2.
I emorandum to V. Stello, Jr., from J. G. Keppler dated 1/12/81 Zimmer - Government Accountability Project Request for re:
Investigation by fierit Systems Protection Board Concerning liRC's Handling of Applegate Allegations.
3 liemorandum to V. Stello, Jr., from J. G. Keppler dated 3/17/81 re: Investigation of Applegate Allegations Related to Zimer.
4.
llandwritten notes by K. Ward dated 9/81-5.
'!!emorandum to J. G. Keppler from J. E. Foster dated 9/21/81 re:
Supplementary Coments on 0IA Report..
6 liemorandum to file from J. R. Sinclair dated 2/5/81 re: Investigations of IE Efforts Pertaining to Investigations of Alleged Construction Deficiencies at the Zimmer Nuclear Facility (Applegate) 7.
F emorandum to J. G. Keppler from R. A. Fortuna dated l/29/81' re:
Confidentiality and Restriction of Information forwarded by the Office of Inspector and Auditor 8.
liemorandum to Chaiman Ahearne from J. J. Cumings re: Thomas W.
Applegate Allegations 9.
Flemorandum to W J. Dircks from N. J. Palladino dated 9/4/81 re:
DIA Report 10.
Memorandum to J. J. Cunmings from N. J. Palladino dated 10/2/P1 re: DIA Report 11.
Memorandum to W. J. Dircks from N. J. Palladino dated 11/16/81 re: DIA Report 12.
Memorandum to Comission from J. J. Cummings dated 8/6/81 re: OIA Special Inquiry 13.
Letter to A. ii. Tracey from J. J. Cummings dated 8/17/81 re: OIA Report i
l 14.
Memorandum to V. J. Stello from J. J. Cumings dated 2/10/81 ra-Transfer of Docunentation Provided By Government Accountability Project (2/9/81)
APPENDIX A 15.
Memorandum to J. G. Keppler from G. A. Phillip undated re:
Comments on 01A Report 16 Memorandum to J. G. Keppler from J. E. Foster dated 9/3/81 re:
DIA Report o
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Re: 101A-81-488 APPENDIX B 1.
Memorandum to files from G. A. Phillip dated 12/15/80 re: Zimmer Plant - Allegations.
2.
DIA Report Chronology by Foster.
3.
October 29th draft letter to Ud,all with handwritten comments from Commissioner Bradford's Office at the top.
4.
October 30, 1981 memo to Chairman Palladino from Comm. Bradford re:
Proposed Draft Letter to Cong. Udall Regarding Zimmer.
5.
October 21, 1981 memo to Comm. Bradford from Tom Gibbon re: Udall Letter on Zinmer with handwritten comments.
6.
September 29, 1981 memo to Comm. Bradford from Tom Gibbon re: OIA Report on Zimmer.
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