ML20055A691

Memorandum Clarifying ASLB 820526 Memorandum & Order Re Effect of Determination on Subsequent NRC FOIA Decisions. Decision Does Not Stop NRC from Fulfilling FOIA Obligations During 2 Yrs Decision Is in Full Force

ML20055A691
Person / Time
Site:	Point Beach
Issue date:	07/16/1982
From:	Bloch P Atomic Safety and Licensing Board Panel
To:
References
ISSUANCES-OLA, NUDOCS 8207190334
Download: ML20055A691 (2)

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COCKETED-UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION W i-ATOMIC SAFETY AND LICENSING BOARD 'c2 2L 16 R2:05 Before Administrative Jur;ges: M Peter B. Bloch, Chairman 0 g CE EC[ {

Jerry R. Kline (fFF BR,wCH Hugh C. Paxton SERVED JUL161987 WISCONSIN ELECTRIC POWER COMPANY Docket Nos. 50-266-OL A 50-301-0LA (Point Beach Nuclear Plant, Units 1 and 2) July 16,1982 MEMORANDUM (Concerning Clarification of Our Memorandum and Order Determining that Certain Documents Proprietary to Westinghouse Would Not be Withheld from the Public)

The NRC Staff (staff) has requested clarification of a portion of our Order of May 26, 1982, relating to the effect of our determination on subse-quent Freedom of Information Act (F0IA) (see 10 CFR Part 9) decisions of the staff. This question arises because our decision addressed whether or not portions of our record should be released to the public. Since staff makes similar determinations in response to F0IA requests, we discussed the relationship between our order and the F0IA in order to attempt to assure consistent, appropriate treatment by the NRC.

Since the statutory deadline for response to an F0IA request is only 10 days, we consider it appropriate to clarify our record in order to help the NRC to fulfill its obligation to process F0IA requests promptly. The portion of our order which the staff wants clarified stated:

(7) This memorandum and order does not prohibit the release of any information in the record of this case af ter two years from the date of issuance. At that time, matters in our record may be released as a result of a request filed pursuant to the Freedom of Information Act. That request shall be determined pursuant to principles ex-plained in this decision, unless modified on appeal or by subsequent applicable precedent. Accordingly, no Westinghouse proprietary in-formation will be released pursuant to the request unless the stand-ards set forth in this decision are met.

LBP-82-42, May 26, 1982, slip op. at 39.

8207190334 820716 PDR ADOCK 05000266 G PDR d S $a2-

F0IA Clarification 2 i

Our decision did not suspend the principles of the Freedom of Infor-mation Act. We merely recognized that the standards governing the release of information in our record parallel those applicable to the Freedom of Information Act. Consequently, our determination that information is enti-tied to be treated as proprietary is entitled to deference. Principles of orderly agency action compel the application of our decision in the Freedom of Information Act area in the interest of reasoned, consistent decision making, subject to deviation if changes in fact or law should dictate.

Paragraph (7) of our order addressed the possibility that our deci-sion would be respected for too long a time. Consequently, we prohibited the staff from relying on our judgment af ter two years had passed. We did not intend to stop the staff from fulfilling its statutory F0IA obligations during the two years our decision is in full force.

Of course, if Westinghouse releases information pursuant to our deci-sion, it enters the public domain. Once information is public it can no longer be considered private. Under the Freedom of Information Act it must, of course, continue to be released to the public upon request.

Staff's principal concern is that our decision not be interpreted to prohibit subsequent F0IA determinations. In responding to the request for clarification we hope we have met staff's needs. (We note that Decade's response to staff's motion raised a new question, asking us to prohibit Westinghouse from requestino the return of information in our record.

However, Westinghouse has not made such a request and there is no special reason for us to consider this matter at this time.)

FOR THE ATOMIC SAFETY AND LICENSING BOARD

$ e Peter 8. Bloch, Chairman ADMINISTRATIVE JUDGE Bethesda, Maryland

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