ML20056A322
| ML20056A322 | |
| Person / Time | |
|---|---|
| Issue date: | 07/31/1990 |
| From: | Murley T Office of Nuclear Reactor Regulation |
| To: | Office of Nuclear Reactor Regulation |
| References | |
| NRRL-104, NUDOCS 9008060379 | |
| Download: ML20056A322 (15) | |
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UNITED STATES.
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NUCLEAR REGULATORY COMMISSION o
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July 31,1990 l
MEMORANDUM FOR:
All NRR Employees FROF Thomas E, Mur*;ey, Director Office of Nuclear Reactor Regulation
SUBJECT:
NRR OFFICE LLTTER N0. 104, Revision 2 FREEDOM OF INFORMATION ACT REQUESTS PURPOS[
This procedure establishes guidelines for processing requests submitted under theFreedomofInformationAct(FOIA).
These guidelines ensure that requests are thoroughly researched and that responses are complete and timely in accor-dance with the FOIA Act of 1965, as amended, 10 CFR Part 9, and NRC Manual Chapter 0211. Revision 2 supersedes NRR Office Letter No.104, Revision 1 dated August 5, 1988, by specifying the time required for estimates on searches and adding a section on Appeals. This revision also incorporates by reference i
NRR Office Letter No. 106, as revised, " Release of NRC Draft or Predecisional-Documents and Information," and NRR Office Letter No. 602, " Procedure for Handling Requests to Withhold Proprietary Information."
DEFINITIONS FOIA Requests are written requests from the public for records under the provisions of the Freedom of Information Act (5 U.S.C.).
The FOIA requires that an Agency respond within 10 working days.
Agency Records include any book, paper, correspon' ence,' report, computer d
tape, film, map,-photograph,-or other documentary material that the NRC, in connection with its official functions, has prepared; has in.its possessio'n,'or has under its control.
It does not include publicly avail-able books, periodicals, or other publications owned or copyrighted by 1
profit-making or nonprofit-making organizations.
" Record" does not include objects or articles which cannot-be reproduced. Drafts are " agency records";
however, early drafts of documents not yet-in final.may generally be withheld from public disclosure under the provisions of Exemption 5 of the FOIA-as l
"predecisional, advice, opinions, or. recommendations."- If a " final"' draft of a document does not differ significantly from the document issued in final form, I
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then the " final" draft must be-disclosed to a requester if sought under the l
F0IA.
However, any decision for release of drafts has to be made only as needed in consultation with appropriate NRR management and OGC.
l CONTACTS:
Wilda Mullinix, 49-21236
~ Jane Mullin, 49-21218 NRC FILE CENTER COPY L
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Personal Records are uncirculated personal notes, papers, and records that are retained or discarded solely at the author's discretion, and over which the NRC exercises no control or dominion.
However, if a " personal record" is shown or transmitted to any other individual, other than for FOIA review, it becomes an " agency record" subject to the requirements of the Act.
Furthermore, if " personal records" are maintained in the same file as, or mingled with, agency records, there is a presumption that they are also agency records.
Exemptions are the bases for withholding information from public disclosure.
There are nine exemptions under which records may be withheld.
The two most frequently used in NRR are Exemptions 4 (Proprietary) and 5 (Predecisional).
See NRC Appendix 0211, Part II, " Records Exempt from Disclosure" (Enclosure 1) and 10 CFR Part 9, Section 9.5, " Exemptions."
RESPONSIBILITIES AND AUTHORITIES Deputy Office Director reviews the denying division's decision when there is an appeal and determines if denial should be overruled.
Division Director l
1.
Signs denial memorandum addressed to the Chief, Freedom of Information/LPDR Branch (FOI/LPDRB), Division of Freedom of Information and Puolication Services, Office of Administration-or, where Exemption 7(a) investigatory records are involved, signs a " Certification of Records" form.
2.
Reviewsappealtodenialanddeterminesifrecord(s)shouldcontinuetobe withheld.
l Division and Staff Offices l
1.
Give an estimate of the time to be spent searching records, reviewing records, or duplicating records, or all of these, for commercial requesters as required by the NRR'FOIA Coordinator.
2.
Search the office files, including Nuclear Document System / Advanced Design (NUDOCS/AD, formerly the Document Control System), and personal files for any information subject to an FOIA request.
3.
Assemble and list records by category, as stated under " Basic Requirements" on page 3 of this memorandum.
4.
Determine the exemption that is applicable to records or parts of records being withheld as noted in the General Guidelines, Page 5, Section 3.C.,
titled, " Documents Relevant to the Request."
L Assigned Project Director or Branch Chief 1.
Ensures responses are complete and timely.
2.
Requests extension of due date from the NRR F0IA Coordinator if assigned date cannot be met.
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July 31, 1990 3.
Approves release or denial of records requested.
Assignsrequesttotheindividualandoffice(s)whichincludesbranches, project directorates, divisions,- Program Management Policy Deve'noment and Analysis Staff, and offices of the associate directors that may have l
records.
2.
Phones estimates of the time required for searching records, reviewing l
records, or duplicating records,.or all of these, for commercial requesters to the F01/LPDRB contact.
i 3.
Ensures that records are screened and properly marked when information is' denied or partially denied.
4.
Meets with assignee, FOIA/LPDR Branch contact, and OGC, as required, to resolve questions relatrie to scope and specificity.
5.
Writes denial memorandum to the Chief of the FOI/LPDR Branch from the appropriate NRR Division Director, i
6.
Reviews response, assembles documents provided by proiect directorates /
branches, and transmits documents to tie F0I/LPDR Branch.
7.
Prepares periodic reports for NRR management.
8.
Maintains FOIA t.istorical file on the IBM 5520 System, f
BASIC REQUIREMENTS l
1.
NRR FOIA Coordinator sends request to appropriate individuals / offices with instructions on searching and providing a response, including searching Central Files and estimating the time to be spent on requests from commer-cial~ requesters.
P.
The assignee determines if records are in the files and estimates, as applicable, the time required to search, review, duplicate and provide them. The requester is then contacted by the F0I/LPDR Coordinator with the charges involved.
If the assignee is to proceed with the request, that person will subsequently be notified by the NRR coordinator. is to be used in responding,to the FOIA coordinator.
3.
Questiors abNt the scope of the request should be discussed with the' NRR FOIA Coordinator so that the scope can be more clearly defined, _
especially for requests asking for "all records" under a broad heading.
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4.
Records to be provided are organized into the:following categories:
Appendix A - in the Public Document Room (PDR); Appendix B - not in th' e
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PDR but can be released; Appendix C - refer to originating or other offices, agencies, or companies; Xppendix D - denied partially, or denied entirely.
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Determine the appropriate FOIA exemption for denials (See Part II of PRC Appendix 0211 or Enclosere 1 of this memorandum).
Records that are l
recommended for denial should be discussed with and agreed upon by the division director before notifying the NRR FOIA Coordinator to prepare a denial memorandum that must accompany the records being denied.
5.
The assignee has copies reproduced, and then assembles and lists them.
The package is then forwarded to the NRR FOIA Coordinator.
6.
With regard to denials under Exemption 7(a), OGC.is discontinuing its -
practice of accepting recommendations to withhold records without the subject records aeing provided for their review.
Effective imediately. -
either a " Certification of Records" form (See Enclosure 3) or the records must be provided with all denials ~under this exemption.
The NRR FOIA Coordinator will prepare a denial memorandum identifying therecordstobedenied,andwhereExemption7(a)recordsareinvolved and not provided, a " Certification of Records" form (Enclosure 3) will be prepared for the appropriate division director's signature.
7.
Appeals to previously denied records will be referred to the denying office fo review and determination on whether records should continue to be withheld. The division director should review appeals and make the final determinations. Correspondence involving decisions to continue to deny records will be forwarded to FOI/LPDRB over the signature of the Deputy Director of NRR.
1 GENERAL GUIDELINES-1.
General Information A.
F0IA requests should receive sufficient triority to enable NRR to respond within the allotted time.
The NRC must-respond to the requests within 10 working days from the date'of receipt.
Occasionally,_ it may be necessary to obtain an extension. The j
responsible project director or branch chief requests extensions.
B.
If an employee receives a FOIA request directly~from a requester, it must imediately be forwarded to the F0I/LPDR Branch.
C.
All F0IA requests will be coordinated by the Planning, Program, andManagementSupportBranch(PMSB).
D.
F0IA requests will be assigned by. the NRR F0IA Coordinator to the appropriate division or branch for response.
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' July 31, 1990 2.
Search The prson responsible for processing an F0IA request must make a timely search, including the NUDOCS/AD, for relevant records. That person should contact other staff in the branch to ascertain whether they have, or are aware of, records that are subject to the request.
As a general rule, a search is adequate when all of the relevant records have been located that an individual familiar with the subject matter-can I
reasonhhly be expected to find in a reasonable amount of time. This s
search includes obtaining relevant records from Central Files. However, since the adequacy of searches has been an issue in litigation, it is imperative that staff reviews of relevant documents be thorough, including letters referenced in documents that are subject to the request. Also, the assignee can ask the NRR FOIA Coordinitor for a docket printout of documents in the PDR and Central Files.
This will enable the assignee to make a more accurate assessment of documents that are relevant to the request.
Commercial requesters are charged for the search, review, and duplication of records provided in response to their requests. 'These people who are assigned action on these requests should provide their estimat of the required time to the NRR FOIA Coordinator by phone.
FOI/LPDRB w'll determine which of those categories will be assessed a charge. The form
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used to transmit the FOIA request will indicate which: category or categories are to be assessed and the phone due date.
It is imperative that the phone due date be met because the FOIA/LPDR Branch must respond to comer-cial requesters within a specified time.
3.
Documents Relevant to the Request The person to whom the FOIA is assigned should perform the following activities:
A.
Provide a reproduced copy of records subject to the request to the NRR F0IA Coordinator.
Incoming records processed through the official distribution system that are in the PDR need not be provided.
However, identify records in the PDR'by dates, applicable document numbers, NUDOCS/AD accession numbers, etc.
B.
-Provide a list of applicable records and a description.(including date of document, originator's name, recipient's name, subject, and.
i numberofpages). List the identifying number and subject of any publication or report.- NUREG documents need not be provided; identify them by the NUREG number'and subject only. The transmittal memorandum or routing sli) providing documents or negative response to the F0IA coordinator s1ould be signed by the branch chief.
l When the request involves proprietary information for which the s'taff, t
has not issued a proprietary determination, the staff must supply the i
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. July 31,1990 transmittal letter and supporting affidavit which accompanied the proprietary submittal. When the proprietary determination has been issued, the licensee / vendor's request for withholding and NRC's determination letter are needed.' In both cases, copies of the proprietary information which is subject to this request must be provided.
Project Managers (PMs)'should aI'so take.into consideration the need
.to serve. parties to proceedings copies of releasable correspondence i
or documents provided for a FOIA request, when such material has not been served on the parties through the normal channels.
In addition, PMs should advise NRR's ACRS Coordinator when requested information i
relates to a subject which is scheduled to be considered by the ACRS.
L C.
If a record appears to be exempt, submit it, indicating the applicable-FOIA exeinption.. Exempt records must be listed and submitted separately from nonexempt records.
If exempt and nonexempt materials exist in the same document, then those portions proposed to be withheld should be marked with brackets in red and the applicable FOIA exemption;
- 1 should be noted. Provide a " sanitized"-(marked with red brackets) and "unsanitized" (unbracketed) copy of those documents.
Ensure thatthedivisiondirectoragreeswiththeexemption(s)quotedbefore sending to the NRR FOIA Coordinator. describes records that are exempt from~ disclosure.. These I
l exemptions are also stated in Part II of NRC Appendix 0211. Specific attention should be given to Exemption 5, which covers interagency or intraagency memoranda or letters that would not usually be available by law to a party in litigation.
D.
Identify any records that have been sent-to or' received from the Commission or a Commissioner,'or that contain identifiable-excerpts from records received from or sent to the Commission or a Comissioner,-
and make a recommendaticn to withhold or release these records.
The Commission will make the final. determination.
E.
Identify any records that originated in another agency or NRC Office and make a recommendation to withhold or release these records. The final decision will be made by the appropriate office.
F.
Highlight or identify any documents obtained from foreign sources.
Information provided by a foreign-source is withheld ~from public.
disclosure pursuant ~to the provisions of 10 CFR 2.790. However, the Office of Governmental & Public Affairs will handle any requests for release of information provided by L foreign source.
G.
If. parts of a record are relevant to a request and the rest of the -
record is not within the scope of the request, only the relevant parts should be released..The other portions may be. identified' as being "not within. the scope of the request."
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--7 July 31,1990
, APP'EALS The denial of records may be appealed by a requester within 30 days after the denial. The office that denied the records is required to review their decision and determine if the records still need to be withheld. These decisions will be reviewed by the Deputy Director, NRR..
NRC has 20 days in which to respond to an appeal of a denial.
EFFECTIVE DATE This office letter revision is effective innediately.
Original signed by 34 cess.X Murley Thomas E. Murley, Director Office of Nuclear Reactor Regulation
Enclosures:
1.
FOIA Exemptions 2.
F0IA Response Form 3.
Certification Form cc:
J. Taylor, E00 J. Sniezek, DEDR H. Thompson, DEDS T. Martin, Region I S. Ebneter, Region II A. Davis, Region III R. Martin, Region IV J. Martin, Region V D. Grimsley, ADM L. Robinson, ADM C. Holzle, 0GC OGC l
NRC PDR DistributionCqpies:
CentraliFiles.
I "NRC PDR Adm. Sec. r/f PMSB r/f HSmith (Orig. & 5)
F0IA file WMullinix JMullin-Note: This Office Letter was also reviewed by Tech Ed,itoy Jeffrey Main on 5/10/PO.
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-7 July 31,1990 7
APPEALS The denial of records may be appealed by a requester within 30 days after the denial. The office that denied the records is required to review their decisien and determine if the records still need to be withheld. These decisions will be reviewed by the Deputy Director, NRR.
NRC has 20 days in which to respond to an appeal of a denial.
EFFECTIVE DATE 1
This office letter revision is effective immediately.
M i
Thomas E. Murley, Director Office of Nuclear Reactor Regulation
Enclosures:
1.
FOIA Exemptions 2.
F0!A Response Form 3.
Certification Form cc:
J. Taylor, EDO J. Sniezek, DEDR H. Thompson, DEDS T. Martin, Region I S. Ebneter, Region II A. Davis, Region III R. Martin, Region IV i
J. Martin, Region V D. Grimsley, ADM L. Robinson, ADM C. Holzle 0GC OGC NRC PDR f
. 1
ENCLOSURE 1 FOIA EXEMPTIONS l
Exemption 1 - Classified Information Records "(a) specificially authorized under criteria established by an-Executive order to be kept secret in the interest of national defense or foreign ylicy and (b) are in fact properly classified pursuant to such l
Executive-order."
1.
To withhold National Security Information from disclosure under Exempt'.on1,theinformationmustbe(a)classifiedinaccordance with tne criteria set forth in Executive Order 12065, and (b) classified by an authorized classifier.
2.
To withhold a record under Exemption 1 of the FOIA which is not properly classified (i.e., not properly marked or stamped to reflect the intent to protect the information) on the date the request was received must, if nriginated after December 1, 1978, be approved by the Chairman of the NRC.
If the record was originated arior to December 1,1978,. the withholding must be approved by tie Executive i
Director for Operations.
l 3.
All classified documents subject to FOIA requests must undergo a I
declassification review to determine if the document is classified in its entirety and, if not, to segregate exempt classified information from non-exempt unclassified information.
Exemption 2 - Interral Rules and Practices Records "which relate solely to the internal. personnel rules and practices of an agency."
Exemption 2 may be utilized to exempt internal personnel rules.and practices which do not significantly affect the public.
Exemption 3 - Information Exempted by Statute Records "specifically exempted from disclosure b
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Government in the Sunshine Act, 5 U.S.C.- 552(b))y statute (other than the
, provided that such statute-(a) requires that the matters be withheld from the public in such a manner as to leave no discretion on the issue, or (b) establishes particular criteria for withholding or refers to particular types of matters to.be withheld."
Exemption 3'is most frequently utilized as the authority to exempt
" Restricted Data" from disclosure as required by Sections 141-145 of the Atomic Energy Act of 1954, as amended-(42 U.S.C. 2161-2165) and safeguards information as enumerated in'Section 147 of the amended Atomic Energy Act, i
i FOIAExemptions(Cont.)
2'-
Exemption 4 - Proprietary Information.
Records "containing trade secrets and commercial or financial iiiformation obtained from a person and privileged or confidential}".
(herein referred to as confidential business (proprietary) information 1.
Exemption 4 is utilized to exempt from disclosure information which meets the following two tests:
a.
the information is a trade secret or commercial or financial information, and b.
disclosure of the information must either (1) result in substantial harm to the competitive position of the owner, or (2) harm the government's ability to obtain-information'in the future.
4 2.
Exemption 4 can be utilized to exempt from disclosure.the following records:
a.
Information submitted to the. NRC as proprietary information pursuant to 10 CFR 2.790 and for which the NRC has accepted as adequate accompaning affidavit justifying the confidential business l
(proprietary) nature of the information.
I b.
Detailed security measures for the physical protection of licensed facility or plant in which licensed special nuclear material is possessed or used.
I c.
Information which identifies a licensee's or applicant's rocedures for safe E_
p(10CFR2.790(d)(1)guardinglicensedspecialnuclearmaterial.
d.
Information submitted in confidence to the Conmission by a foreign source.
e.
Information submitted to the NRC in confidence'as proprietary information, other than in response to a request ~for proposal, for L
which no affidavit or other written justification that the-1 L
information is confidential business (proprietary) information has been accepted by the NRC..The originators will be required to-provide a written justification that the information is in fact confidential business (proprietary) information as prescribed in Part III of NRC Appendix-0211.
l f.
Information in proposals-submitted in response to the NRC l
solicitations which the originator considers confidential business l-(proprietary) information.
If the staff disagrees with the l-originator's proprietary claim, the originator will.be required to provide a written justification that the information is in fact confidential business (proprietary) information as prescribed in Part III NRC Appendix 0211.
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Exemption 5 - Predecisional Information Inter-agency or intra-agency memoranda or letters which would not be available l
by law to a party in litigation with the agency.
1.
To exempt a record from disclosure utilizing Exemption 5, the record normally must be either:
i a.
an inter-agency memorandum or letter (i.e., memorandum or letter transmitted from the Federal agency to another), or b.
an intra-agency memorandum or. letter (i.e., memorandum or letter transmitted from one person in an agency to another person in the same agency).
2.
Specific types of records which can be exempted from disclosure pursuant to Exemption 5:
a.
Legal work products and records covered by the lawyer--client privilege.
b.
Drafts, except where a draft is the last in a series of drafts and no " final" is anticipated to be created.
In such cases the last draft will be treated as a final and the advice, opinions-and recommendations must be segregated from the facts as prescribed in Part III of this Appendix.
c.
Advice, opinions, and recommendations given during a deliberative
-process.
3.
Segregation Requirement: Factual information must be segregated, if l
possible, from advice, opinion..and recommendation in predecisional documentsexceptfordrafts(annotedin2babove)andcertainlegalwork products and records covered by the lawyer-client privilege.
l Exemption 6 - Personal Privacy Information Records "which are personnel and medical files and similar files, the l
disclosure of which would constitute a. clearly unwarranted invasion of personal-privacy."
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To utilize Exemption 6 to exempt-a record, or portions thereof,-from disclosure, a determination must be made that, in balancing the invasion of personal privacy that would result from disclosure against the public interest which would be served by such release,'it must be clear that-disclosure would result in a clearly unwarranted invasion of personal privacy.
NRC has withheld, from disclosure to third parties, the following types of information pursuant to Exemption 6:
(a) home telephonenumbers,(b)homeaddresses,(c)medicalrecords,(d) individual performance evaluations, (e) social security account numbers, and (f) names l
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j FOIAExemptions(Cont.)',
(
oflivingpersonsexposedtoradiation[h)g)informationconcerning non-Federal employment and education, investigations of the conduct of named individuals, and (1) individual executive and i...nagement development appraisals.
I 2.
The following information about NRC employe(s is considered public information and is' disclosed on request:
l a.
Employee's name; b.
present and past Federal position titles; I
c.
present and past Federal grades; l
d.
present and past Federal salary; and e.
present and past Federal duty-stations.
Exemption 7 - Investigatory Records Investigatory records compiled for law enforcement purposes, but only to the extent that production of such records would:
1.
interfere with enforcement proceedings; 2.
deprive a person of a right to a fair trial or an impartial adjudication; 3.
constitute an unwarranted invasion of personal privacy; 4.
disclose the identity of a confidential source and, in the case of record compiled in the course of a criminal investigation, or by an agency conducting a lawful national security intelligence -investigation, confidential information furnished only by the confidential source; 5.
disclose investigative techniques and procedures; or 1
1 6.
endanger the life or physical safety of law enforcement personnel.
General applicability: A record, or portions thereof, to be. exempted from disclosure pursuant to Exemption 7. requires:
- that the record be compiled for. law enforcement purposes which includes records compiled for eithcr criminal.. civil, or administrative law enforcement actions; and
- That the record meets at lecst one of the tests set forth in 1 through 6, above, of Exemption 7.
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4 FOIAExemptions(Cont.).
t Exemption 8 - Records of Financial, Institutions i
Records which relate to the regulation or supervision of financial institutions.
This exemption applies only to the records which financial institutions are required by law or regulation to submit to federal agencies, such as the Federal Deposit Insurance Corp.
It has never been used by NRC.
Exemption 9 - Oil and Gas Well Data This exemption is used to protect oil and gas data.
It has been used only once by NRC, in 1975, to withhold large seismographic charts submitted by the Puerto Rico Water Resources Authority for its proposed North Coast nuclear power plant following press reports of discovery of oil off Puerto Rico's north coast.
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s DATE:
MEIMRANDUM FOR: Jane R. Mullin, PMSB:PMAS:NRR ENCLOSURE 2 I
MS:
12H5; Station: 12H11
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SUBJECT:
FOIA -
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This.0ffice has no documents subject to this request.
! have no documents subject to this request.
POR available documents with their accession numbers listed as well as the number of pages each document contains are listed on Arpndix A.
i Documents listed on Appendix B are recommended for release and may be placed in the POR.
Documents listed on Appendix C should be referred to the other Offices / Companies.
Documents listed on Appendix D should be withheld from public disclosure for the reasons indicated for each document.
The following offices (or individuals) may have documents subject to this request but were not designated as having received.them in your correspondence to me.
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OTHER COMMENTS:
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(PD/ Branch Chief Signature)-
(PD/ Branch Chief Name/ typed or printed)'
(Date)
CONTACT:
(Ext.
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.i WheretheF01Ainvolvesmultiplequestions,pleaseindicatetheitem(s)to which the document (s) respond
ENCLOSURE 3 CERTIFICATIONOFEXEMPTION7(a) RECORDS BY THE OFFICE OF NUCLEAR REACTOR REGULATION UponreviewoftherecordssubjecttoFreedomofInformationActRequest(F0IA)
, the documents listed below, or the indicated portions thereof, Number should be released in response to this request-The undersigned hereby certifies that, with respect to the remaining documents in this file, disclosure of each document, or any portion thereof, could reasonably be expected to interfere with enforcement proceedings. Therefore, the remaining documents should be withheld frompublicdisclosurepursuanttoExemption7(a)ofthe'FOIA.
(Project Director / Branch Chief -
)
(Date)
(Division Director -
)
(Date)
RELEASABLE DOCUMENTS r