ML20055E989
| ML20055E989 | |
| Person / Time | |
|---|---|
| Issue date: | 06/18/1990 |
| From: | Chilk S NRC OFFICE OF THE SECRETARY (SECY) |
| To: | Lebo K HUNTON & WILLIAMS |
| Shared Package | |
| ML20055E990 | List: |
| References | |
| FOIA-89-192, FOIA-90-A-12 NUDOCS 9007130154 | |
| Download: ML20055E989 (4) | |
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UNWED 8TATES i
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W A$HIN GT ON, D.C. 206M
.....,e June 18, 1990 OFFICE OF THE SECRE T ARY i
Karen L. Lebo, Esq.
i Hunton & Williams 707 East Main Street P.O. Box 1535 Richmond, Virginia 23212 RE:
FOIA No. 90-A-12 (Appeal from FOIA No.89-192).
Dear Counselor:
I have received your letter of February 27, 1990, appealing an initial decision by'two offices of the Nuclear Regulatory Commission ("NRC" or " Commission") to withhold three documents from release in the above numbered request under provisions of the Freedom of Information Act ("FOIA") and the Commission's regulations.
After careful review, I have granted your appeal-in part and denied your appeal in part for the reasons stated below.
Initially, two of the documents withheld were not described correctly in the NRC's initial response.
Document F-3 consists of two (2) pages of Transamerica Delaval Inc. ("TDI") inter-office correspondence, not four (4) pages as stated in the denial notice of February 8, 1990.
The two pages'contain different dates (September 4, 1982-and June 21, 1982) and do not appear to be related to each other.
Both pages contain various handwritten annotations including the names of various individuals.
3 Document F-6 consists of a two-phge NRC inter-office memorandum from Karla Smith, Esq., Office of the General Counsel ("OGC"),
to John Sinclair, Operations Officer, Office of Investigations
("OI"), discussing the NRC's legal obligations under a non-disclosure agreement with TDI and making recommendations based upon that discussion, and three attachments: (1) an unsigned copy of the non-disclosure agreement between the NRC and TDI; (2) 10 pages of TDI inter-office memoranda; and (3) copies of the depositions of Daniel'Cady (192 pp. and 86 pp. exhibits),
Edwin Deane (415 pp.), and.Leona Rountree (87 pp..and 4 pp.
I exhibits), taken in the lawsuit Lona Island Liahtina Co. v.
Transamerica Delaval. Inc., No. 85-CIV-8692 (S.D.N.Y.).-
TDI ~
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i 9007130154 900618 PDR FOIA LEBD90-A-12 P DR.'
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' provided attachment #3 to the NRC pursuant to the non-disclosure agreencnt.
I apologise for the mistaken description of these documents in the denial letter of February 8, 1990.
Turning to the merits of the original withholding, I find that the NRC correctiv withheld the dnsputed documents to the extent described below.' First, I find that Document F-2 is exempt from mandatory disclosure under Exemption 5 of the FOIA, 5 U.S.C. 552 (b) (5), and _10 C. F.R. 9.17 (a) (5) of the Commission's Regulations.
Document F-2 is a draft memorandum for the Commissioners from Darrell G. Eisenhut who at that time was the Director of the Division of Licens,ing in the Office of Nuclear Reactor Regulation ("NRR").
The document's tentativo title is "New Information Concerning Transamerica Delaval (TDI) Emergency Diesel Generators, Board Notification 83 __" and contains several handwritten annotations.
Drafts of proposed positions or actions and the internal advice, recommendations, and opinions between the Commission as a body and its technical staff are a part of the " deliberative process" through which the agency reaches'a decision.
This document would be protected from discovery in litigation under l
the " deliberative process privilege" and is therefore exempt from mandatory disclosure under Exemption 5 of the FOIA because it "would not be available by law to a party... in litigation with the agency."
5 U.S.C.
552 (b) (5) and 10 C.F.R. 9.17 (a) (5).
_RLBB v. Sears, Roebuck & Co.,
421 U.S. 132, 151-(1975).
Disclosure of predecisional documents would be likely to l
" stifle honest and frank communication within the agency."
Coastal States Gas Corporation v. Department of Enerav, 617 F.2d 854, 866 (D.C. Cir. 1980).
Accordingly, I find that document F-2 was correctly withheld from release in FOIA 192.
Document F-3 is' exempt from release under Exemption-4 of the FOIA because it contains " commercial... information obtained from a person and privileged or confidential."
5 U.S.C.
552 (b) (4) and 10 C.F.R. 9.17 (a) (4 First, Document F-3 contains " commercial information")about IMO Delaval's internal Quality Assurance Program and compliance with applicable NRC regulations.
Second, Document F-3 was "obtained from a person" because it was obtained from an individual IMO Delaval employee during the investigation by the NRC's Office of Investigations.
Third, Document F-3 is " privileged" and " confidential."
The document constitutes an internal analysis of IMO Delaval's compliance with the NRC's Rules and Regulations regarding Quality Assurance programs.
As such, it appears privileged j
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3-against discovery requests by another private litigant under the "self-critical analysis" privilege.
- Eas, e.g., Solarax Corp. v. Arco Solar. Inc., 121 F.R.D. 163, 174-75 (E.D.N.Y.
1988).
Moreover, the document appears to be " confidential" within the meaning of Exemption 4 because it is the type of information not normally released to the public by IMO Delaval.
Egg, 3 A, National Parkc and conservation Assoc. v. Morton, 498 F.2d 765, 766 (D.C.Cir. 1974); Miller. Anderson et al v.
Dent. of Eneray, 499 F.Supp. 767, 771 (D.Or. 1980).
Therefore, Dopunent F-3 is exempt from mandatory release under Exemption 4
Document F-6 is also exempt from mandatory disclosure under Exemption 5 of the FOIA, 5 U.S.C.
552 (b) (5) and 10 C.F.R. 9.17 (a) ( 5), because (1) it is a part of the deliberative process and therefore covered by the " deliberative process privilege," as described above, and (2) it contains legal advice from an attorney to a client and is therefore privileged as attorney-client communication.
Mead Data Central. Inc. v.
Deoartment of the Air Force, 566 F.2d 242, 252 (D.C. Cir.
1977).
Turning to the attachments to Ms. Smith's meno which comprise the bulk of Document F-6, I have determined that Attachment 1-is not exempt under the F0IA.
Accordingly. I have enclosed a copv of Attachment 1 with this letter.
However, Attachments 2 and,3 are exempt from mandatory release.under Exemption 4 of the FOIA, 5 U.S.C. 552 (b) (4) and 10 C.F.R. 9.17(a)(4). contains confidential technical procedures for casting steel and iron products used in IMO Delaval's business which are not publicly available.
As such, Attachment 2 contains " trade secrets" or " commercial information" as defined Inder the FOIA.
Release of this information would damage IMO belaval's competitive ability and " chill" the NRC's ability to achieve voluntary cooperation in future investigations.
Therefore, I find that Attachment 2 is exempt from mandatory disclosure under Exemption 4 of the FOIA.
, consists of the transcripts of three depositions j
noticed by Hunton & Williams in a lawsuit between LILCO and IMO lobviously, the NRC's decision not to release Document F-3 does not prevent your seeking this document or any other document described herein -- through discovery in your lawsuit with IMO Delaval.
- Delaval.
These depositions and their exhibits contain confidential commercial information regarding IMO Delaval which is not in the public domain, release of which could reasonably be expected to damage IMO Delaval's competitive position.
IMO Delaval provided these depositions to the NRC under the terms and conditions of the agreement referenced as Attachment 1.
Mandatory disclosure of these depositions would have a
" chilling effect" cn the NRC's ability to obtain information-necessary for conducting its investigations, through voluntary cooperation.
133, sigt, National Parks and Conservation Association v. Morton, 498 F.2d 765, 770 (D.C. Cir. 1974).8 Accordingly, these depositions are " confidential" within the meaning of Exemption 4.
Therefore, Attachment 3 is exempt from mandatory release under Exemption 4 of the FOIA.
This lotter constitutes final agency action on your administrative appeal of February 27, 1990.
Judicial review of the denial of the documents withheld is available in the Federal District Court where you reside or have your principal place of business or in the Federal District Court of the District of Columbia.
j incerel
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at Samuel J. Mk~
/ Secretary'of the Commission i
2Because the NRC's Office of Investigations has closed its investigation into the TDI/IMO Delaval
- matter, the NRC is preparing to return these transcripts under the terms and conditions of the non-disclosure agreement, as it has already returned similar transcripts and other material relating to this i
matter to Hunton & Williams under a verbal agreement ' between members of Hunton & Williams and the NRC's Office of the General Counsel.
Hunton & Williams should have copies of the deposition in its possession because it noticed and participated in the depositions.
Therefore, Hunton & Williams cannot claim to be prejudiced by the NRC's decision not to release the transcripts at issue here.
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