ML20057B784

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Partially Withheld Commission Paper Re Adverse Decision in Abbotts Vs NRC
ML20057B784
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Issue date: 08/23/1983
From: Slaggie E
NRC OFFICE OF THE GENERAL COUNSEL (OGC)
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FOIA-92-436 SECY-83-352, NUDOCS 9309240003
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,s August 23, AIAJUDICATORY ISSUE sr:Y-83-3s2 (Inf0Tmation)

LIMITED DISTRIBUTION For:

The Commission From:

E.

Leo Slaggie Acting Solicitor

Subject:

ADVERSE P2 CISION I'* ABBOTTS V.

NRC --

LITIGATION STRATEGY

Purpose:

To inform the Commission of a recent adverse decision in an FOIA lawsuit and describe the course of future proceed-ings.

Discussion:

In 1977, John Abbotts and others sues the NRC to compel disclosure of a number of safeguards documents.

By 1379 the lawsuit was narrowed te portions of two documents - one line in a report by Nhc consultant Col. William Shankle, and ona part in a draft GESMO Safeguards Study -

both dealing with clessifjed baseline threat level information.

After more than fcur years' deliberations, the I Baseline threat level infermation was found in one portion of the report " Consideration of the Threat and Potential Threat to the U.S.

Nuclear Power Industry," by William Shankle (the "Shankle Report") and on one page of the draft working paper for the Safeguards Supplement heport, GESMO Study (the "GESMO Report").

The background of the dispute is discribed in the Court's opinion (Attachment (Footnote Continued)

Contact:

M. Ckpko 741493 nhmtica in is record us 6 deled in 2:cordance with the fgtdom of inicrmen D. Berkevit x43224 Act, en.~ck" F0ik- ) S= OAh-9309240003 930428 PDR FDIA GILINSK92-436 PDR a

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district court on July 22 denied the

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NRC's motion for summary judgment on both documents (attached).

It ordered release of the Shankle Report passage, finding that the NRC Conran Task Force and a Defense Intelligence Agency review both disclosed the'Shankle baseline threat ?e'21 and that, by these disclo-sures, NRC wcived confidentiality for the information.

TNc court also crdered a hearing on whether release of the baseline threat level i. formation in the GESMO Report would harm the national security.

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August 3, 1983, we filed a renewed motdon for summary judgment on the GESMO Report (Attachment 2).

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Oral argument was held on August 16 on the NRC'.s renewed motion for summary judgment.

The court made no comment en the merits but promised _a decision _it t hre e_or_.four_d ay s.,

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E. Leo Slaggie Acting Solicitor AttLchments:

1. Court Opinion - July 22, 1983
2. NRC Pleadings - Aug. 3, 1983 DISTRIBUTION:

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JOEN ABBOTTS, et al.,

Plaintifft, v.

C.A. No. 77-0624 U.S. NUCLEAR REGULATORY COMMISSION, F.1 L E D Defendant.

JUL ?,21983 MEMORANDUM 3 Agts F. pAVEY, cnerk INTRODUCTION e

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This suit under the Freedom of Information Act ~(FOIA),~3 U.S.C. F 552 (1976), is before the court on the parties' cross -

motions.for summary judgment.

At issue are portions of two documents classified by the Nuclear Regulatory Commission (NRC).

The first document is a report by Col. William Shankle, a noted authority and consultant to the NRC and the Department of Defense, entitled " Consideration of the Threat and Potential Threat to the U.S. Nuclear Power Industry," (the Shankle Report).I The Shankle Report was prepared in 1975 on a contract from the Nuclear Material Safety and Safeguards Division of the NBC.

The second document is an NRC staf f report entitled "Draf t Working Paper for the Safeguards Supplement Report, GESMO Study" I This document is referred to in the appendix to the complaint as Document I I-1.,

a(the CESMO Report).

The GESMO Repor.t cupplemented a Generic knyir.onmental Statement on the Use of Recycle Plutonium in Mixed Oxide, Fuel in Light Water Cooled Reactors (GESMO) with*a 1

discussion df nuclear plantr' p;oliferation dangers and safeguard alternatives.2 The NRC seeks tn withhold one sentence of the Shankle Report t

and portions of one page of the GESMO Report which describe

  • baseli,ne threat levels" (BTLs), that is, the quantitative size -

j of the risk against which the NRC belict es physical security systems at nuclear facilities should be" designed to protect.

The NRC bases its withholding claim on FOIA exemption (b)(1).

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exemption provides for the withholding from public disclosure of inf'ormation that is:

(A) specifically authorized under criteria established by an Executive Order to be kept secret ~

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in the interest of national defense or foreign policy and (B) are in-fact properly classified pursuant to such Executive Order.

[5 U.S.C. 5

,552(b)(1).)

i Executive Order (E.O.) 12356, 47 Fed. Reg. 14874 (1982), the Executive order in effect at the time the documents were last classified,3 makes confidential information whose unauthorized 2This document is referred to in the appendix to the corplaint as_

Document III-6.

A background discussion of the GESMO Report is contained in Westinghouse Electric Corp. v. NRC, 598 F.2d 759 (3d Cir. 1979).

3 E.O.

12356 replaced E.O.

12065 on August 1,1982.

See E.O.

)

1215 f, Fed. Reg.14 8 74 (April 6, 1982).

The court reviews the classification of a document under the substantive and procedural criteria of the Executive order in effect at the time the agency i

makes its ultimate classification determination.

Military Audit (Continued) 2 j

disclosura ~rcasonably could_be orpactcd to causo dancgo to tho 1

national security.

E.O. 12356 Both parties have submitted summary judgment motions concerning the Shankle Report., Plaintiffs contend that the baseline threat level specified in the Shankle Report (the Shankle BTL) has already been disclosed in two documents--one an NRC task force report--which are publicly available in the NRC Reading Room.

They assert the NRC's clain that disclosure.would damage national security is therefore without support, and summary judgment with respect to the Shankle Report should be granted to plaintiffs.

With respect to the GESMO Report, plaintiffs oppose the NRC's summary judgment motion because they assert that there is :

genuine issue of material fact as to whether release of the information deleted from 'the GESMO Report would be expected to '

' cause da'tage to the national security.4 The NRC denies that the. baseline threat levels contained in the Shankle Report or baseline threet levels of similar kind and Project v.

Casey, 656 F.2d 724, 737 n.41 (D.C. Cir. 1981); Lesar v.

U.S. Department of Justice, 636 F.2d 472, 460 (D.C. Cir.

1980).

The NRC reviewed the classification determination under the standards of the new Executive order, and determined the BLT Information should recain undisclosed.

Second Supplemental Affidavit of Robert F.

Whipp, September 30, 1982'.

Robert F.

Whipp is Chief of Information Security, Division of Security, for the NRC.

Whipp Affidavit, 1 1.

  1. Plaintiffs also contend that the NRC did not classify the report properly, because the NRC did not balance the public interest in disclosure against the need to protect the information at issue, pursuant to E.O.

12065, 3 C.F.R.

190 (1978 Comp.).

Since the new r - n+iva nrdat has repealed the balancing requirement, and the GE3MO Report must be examined based on the, Executive order presently in ef f ect, this contention is no longer relevant.

Af shar v. Depa r tment of State, 702 F.2d 1125 (D.C. Cir. 1983)..

g chorocter have bee reloaned by the NRC.

Moroover, the NRC i

contends that Col. Shankle's~particular exportise5 and the fact l

that h,is Information sources were in part classified m&kes it

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essential to withhol'd his e'naly,ses.

With respect to the GESHO t

Report, the NRC contends that its judgment that release of the GESMO Report information might reasonably be expected to damage I

the national security is entit' led to substantial weight, and justifies entry of s'u:nmary judgment for the NRC.

Exemption 1' protects from disclosure matters" "specifically a

i authorized under criteria established by an Executive order to be i

kept secret in the interest of national defense or fore ~ign policy" which *are in fact properly cicssified pursuant to such Executive order.", 5 U.S.C. S 552(b)(1).

As in any FOIA case, the court is required to " determine the matter de novo, and... the burden is

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on the' agency to sustain its action. "

5 U.S.C. 5 552(a)(4)(B).

But the court must "a'ccor'd substantial weight to an agency's i

i affidavit concerning the details of the classified status of the disputed record."

S. Rep. No. 93-f200, 93d Cong., 2d Sess. 12 l

(1974), reorinted_in (1974) U.3. Code Cong.

t. Ad. News 6285, 6290.

Summary judgment on the basis of agency affidavits is i

varranted "if the affidavits describe the documents and the justifications for nondisclosure witr reasonably specific ' detail, demonstrate that the information wit.hheld logically f alls within i

5"Mr. Shankle is a noted authority with many years of experience in the Nuclear Weapons Protection Program and was the principal advisor to the Department of Defense on such matters."

Defendant's Responac to Plaintiffs' Interrogatories to Defendant, December 15, 1977, p. 16.

4

@xrENREXX-J cxcmption, and cro not centroverted by oither contrary evidenco in tha, record nor by ovidence of ogoney bad faith.*

2Ed Military Audit Project v. Casev, 656 P.2d 72 ', 738 (D.C. Cir.

M. 4 i;y 1981).

i For the reasons set fo th in this memorandum, the court

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denies the NRC's motion for summary judgment and grants plaintiffs' motion for partial' summary judgment with respect to the Shankle Report.

The court denies the NBC's motion for summary 3

.i judgment with respect to the GESMO Report.

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]

A THE SBANKLE REPORT

.e Suppression of information already in the public domain 4

frustrates the p essing policies of the Fr,eedom of Information Act without even arguably advancing countervailing considerations.

Afshar v. Department of State, 702 P.2d 1125, 1130 (D.C. Cir.

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1983); _ Founding Church of.Scientology v. National Securitv Acency, 610 P.2d 824, 832 (D.C. Cir.1979); _Lamont v.

Department of f

_ Justice, 475 P. Supp. 761 ( S. D. N. Y., 19 79 ).

If the withheld Shankle BTL is already available as a result of authoritative, official disclosures by the NRC, the NRC must disclose to plaintiffs the withheld portions of the Shankle Report.

Military Audit Project, 656 F.2d at 744-45.

In 1977, a special task force of seven NRC staff members wrote a report for the NRC reviewing allegat'lons by James B.

Conran, an NRC employee, that nuclear facilities contain (andagnata safeguards.

Thomas B. Cochran, a staff scientist-with the Natural Resourres Defense Council, sta'tes that the Report of i

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,tho NRC'c Tcsk Farco Cn A11cgotion3.by Jcmos B. Conron, which is cvoilcblo in the NRC Public Raading Room, contcine the following pa s s ag,e :

The Task Force finds that dhe preliminary paper (64)~ prepared by an HRC consultant summarizing several studies in the special safeguards Study is relevent to this concern.

That paper states, in part, th at:

a group of 10-12 dedicated, well trained and well equipped fanatics with light weapons and explosives appears to be the level'of terrorist capabilities which should be considered when establishing day-to-day security requirements for the 6uclear power industry,... [in addition, an internal threat] of disgruntled or defective employees

[should be considered)."

[ Affidavits of Thomas B. Cochran, October 10, 1979, 1 5 (Cochran Affidavit).]

According to Mr. Cochran's affidavit, the document referred to as Reference 64 to the Task " Force Report contains the Shank'le Report.'_Id.

, In his affidavit, Mr. Cochran also states that "a Defense Intelligence Agency [DIA] review of- [the Shankle) report stated DIA's agreement with the Report's conclusions and recommendations that 'a minimum security system which will provide adequate protection against an adversary group comprised of approximately 12 dedicated, well-trained, well-armed personnel is

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an appropriate standard.'"

Id.

According to Mr. Cochran's affidavit, the DIA report is also declassified and available in the NRC Public Reading Room.

Id.

Th: ;;rty :::hing summary judgment has the burden of showing

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tha other party.would hovo tha burden of proof at triar, and avon 3

if the opponent represents no conflicting evidentiary matter.

United States v. General Motors Corporation, 518 F.2d 420, 442 4

(D.C. Cir. 1975).

If the movant makes out a case on affidavits and presumptions that vould entitle the movant to a directed verdict if uncontroverted at trial, summary judgment will generally be granted unless the opposing party offers evidence demonstrating "a ground of defence fairly arguable and of a j

substantial character," or unless that party presents good reasons, in accordance with Rule 56(f), for failure to offer'

" facts essential to justify his opposition" to the motion.

Id. at 442.

Under Local Rule 1-9(h), "[i]n. determining a motion for summary judgment, the court may assume that the facts as claimed

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by the moving party in his r+atement of material facts are q

admitted to exist except es and to the extent that such facts are f

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pontroverted in a statement filed in opposition to the motion."

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Mr. Cochran's affidavit makes,out a prima facie case for the f

proposition that while the N?C har ;ct directly disclosed the ShanPle BTL to the public, NRC dissemination of the report to its own task force and to the m has resulted in both public quotation of the Shankle BTL, and public attribution of that BTL to Col. Shankle.6 The NRC has filed no statement of genuine 6 plaintiffe also point out that recommendations similar to that of the Shankle Report have already been disclosed and the NRC has already revealed information regaroing the adequacy of exicting saf eguards systems with no resultis g damage to the national security.

Plaintiffs assert these facts r~ebut the.!RC's claim that release of the Shankle Report reasonably could be expected (Continued) i

ihsu2s.

Tho court' hac also Oxt.minod the URC'o pleadings and offidavits, and determined tht.t these do not in fact controvert j

plaintiffs' allegations.

The NRC's pleadings and affidavits i

contain no references to the DIA report.

The NBC's answers to plaintiffs' interrogatories state that the NRC Task Force report i

does not offer analyses, conclusions, and reccmmendations of its own.

But the interrogatory answers do not say whether the NRC Task TcIce, although it does not arrive at its own conclusions, neve:theless cites or comments upon th'e substantive conclusions of the,Shankle Report.7 Although the defendant's memoranda of law may not be considered as evidence, Goldman v.

Summerfield, 214 F.2d 858 (D.C.

Cir. 1954); '6 Moore's Federal Practice 5 56.11(1.-8), Ehe sensitive nature of the documents at issue has prompted the court to pay especially caref ul attention to the contention's the NBC' advances in its briefs.,The NRC asserts "pl ai r.ti f f s ' ' motion papers and supporting exhibits and attachments are markedly bare of any infer =ation quoted specific $11y from the Shankle Report....

[In this case,) only speculation aboJt the Shankle Report is 'well publicized.'"

Defendant's Supplemental Memorandum to cause damage to the national security.

The court need not reach these arguments with respect to the Shank 3e Report, since the Cochran affidavit makes ou'. a prima facie care for the fact i

that the Shankle BTL has itself be'en disseminated.

7The portion of the NRC's interrogatory answer which refers to the NRC Task Force report reads, "[the NRC Task Fcrce report) states only a range of hypothetical levels that should be

' considered' by the Staff, and does not offer analyses, conclusions and recommendations as does Mr. Shankle."

Defendant's Response to Plaintiffs' Interrogatories ;c Defendent, Dec. 15, 1977, p. 15.

_g_

.;of Pointo and Authoritics, November 28,1979, at 7 n.8.

The NRC la correct that the DIA comment "does not purport to quoto from the Beport."

Id.

But scrutiny of the NRC Task Force citation to the Shankle Report suggests that the NRC's assertion about specific quotation is either very far-fetched or just plain t

wrong.

Since plaintiffs have not themselves been allowed access to the Shankle Report, of course they must rely only on secondary sources to arrive at the Shankle BTL.

But where these secondary sources are acthored by respected officials who did have a~ccess to

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the Shankle Report, plaintiff's reliance on secondary sources for i

citations of the Shankle BTL amounts to f ar more than speculation.

The NRC also stated that " plaintiffs do not know precisely the size of the threat specified by Col. Shankle," id. at 5,,and tha'. the DI A release " recites an approximation," id. at 7 n.8.

If the NRC had reason to believe that plaintiffs merely guessed at the shank'le BTL, the NRC should have set forth this be3ief in an opposing af:

"vit.

If, as the NRC maintains in its brief, both confirmation and denial of plainti'.fs' " guesswork" would have i

contributed to the ancovering of classified information, _id.

at 5, the NRC should have set forth that position in an affidavit filed pursuant to Fed.

R.

Civ.

P.

55(f).

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The NRC's f ailure to sulmit af fidavits either denying that the NBC Task Fo'rce report cites the Shankle Report, stating that the NRC had reason to believe that plaintiffs merely guessed at the Shank e BTL, or stating that the NRC could neither confirm nor deny that p'laintiffs' numbers are guerses, distinguishes this case fron Military Audit Project.

In Military Audit Project, the

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govornment convincin' gQ demonstrated in ita briofo that tha t

reporto upon which o'ppel.ints relied were either based on information from non-governmental sources, orwritten$y'ormer CIA officials without CIA clearance.

656 F.2d at 743-44.

More importantly, an affidavit by a government offiefal stated, "[alny confirmation or denial of these reports, or the public disclosure by the United States Government of the purpose of the program...

could reasonably be expected to cause serious damage to the national security,of the United states.'"

Id. at 741.

In light of the government's submissions the court concluded, "the record before us suggests either that the CIA still has something to' hide or that it wishes to hide from our adversaries the fact that it has'nothing t.o hide."

Id. at 745.

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Similarly, in Afshar v.

Department of State, supra, the piaintiff was unable to point to " specific information*in the public domain that appear [ed) to duplicate that being withheld."

Id. at 1130.

The court acknowledged that, in light of the significant security concerns at issue, the courts would not

" pry [] loose from the government even the smallest oit of information that is properly classified or would disclose intelligence. sources or methods."

Id.

The burden remains on the government, though, to demonstrate that the information available in the public. domain differs from the information withheld pursuant to Exemption 1 of FOIA.

In Afrhar, the court succinctly stated that "[i]n every case we are able to tell from the affidavits already submitted by the government that the withheld Information 's in some material respect different from that to

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which* plaintiff reforo'. - Id. at 1131-32.

Boro, plaintiffa havo made out a caso for the. proposition that the Shankle BTL is already in the public domain at a result of two governmental disclosures based on the Shankle Report--the NR7 Task Force Report, authored by NRC staff, and the DIA review, authored by the staff of an agency engaged in intelligence work.

Since the NRC has not offered ' evidence demonstrating a ground of f

defense, or presented good reasons for not doing so, plaintiffs' motica for summary judg=ent with respect to the Shankle Report is

  • granted.

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THE GEShO REPORT The NRC can sustain its FOIA Exemption 1 claim for,the GESMO Report by showing that the study meets Exemption l's substantive and procedural classif'ication requirements.

5 U.S.C.

S 552(b)(1).

Plaintiffs assert the NRC has failed to carry its burden because the NRC did not prove release of the GESMO report reasonably could be expected to cause damage to the national security.8 Plaintiffs point to a conflict of affidavit testimony in this case about the consequences of disclosure of the GESMO Report.

The NRC asserts that the deleted portion of the GESMO Report 87he plaintiffs also claim that the NBC did not follow proper classification procedures under E.O. 12065.

The former Executive order required a balancing of the public and private interests tcfore information could be withheld.

This procedural argument has lost its force with the promulgati.on of E.O.

12356, since no balancing test is currently required.

Afshar 'v.

Department of State, supra, at 1135.

s 01,nvolvor inforasticn importcht ta the cantinuco protGetien of nucleor facilitics fron throats, osecult by terrorist greups, or sabotage," because "[k]nowledge of the risk level that. f acilities are designed to be secure against would be important to groups, who for whatever motivation, would be inclined to attack a nuclear facility."

Supplemental Affidavit of Robert F. Whipp, June B, 1979, 1 7.

The NRC also states that "several of the deletions include value judgments about the limitations of pa.rticular ogencies to respond to threats to f acil'ities.

Such information, if made generally available, could indleete to various groups the capabilities of responsible federal and law enforcement

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agencies."

Id.

Plaintiffs contend that since two studies made for"or at the NRC or its predecessor agency' contain baseline threat level estimates, there is a dispute concerning whether discIosure of the GESMO BTLs reasonably can, be expected to caJse inCrenental harm to the national security.10 Cochran Affidavit, 1 9.

Plaintiffs also 9These studies are Plaintiffs' Exhibit 6, the Special Safeguards Study (the Rosenbaum Report), made for the Atomic Energy Conmission, and Plaintiffs' Exhibit 7, the publicly-available

, draft. executive summary of an NRC report assessing the need for establishing a security agency within the NRC's Of fice of Nuclear Material Safety and Safeguards.

The Atomic Energy Commission was dissolved by the Energy Reorganiration Act of 1974, 42 U.S.C. SS 5801-5891 (1976), and 6

its licensing and related regulatory functions were transferred to the newly created NRC.

See 42 U.S.r. S 5841(f) (1976).

10 Plaintiffs also cite other apparently authoritative documents which contain BTL estimates.

See Cochran Affidavit, 1 9.

The court chose to cite the Rosenbaum Report and the NRC's Executive Summary of the Security Agency Study since both those reports cre, like the GESMO Report, reports of the NRC.

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'. cosort thct oinca disclcsuro cf tho GESMO BTL3 would not,rcvoal onything to torrorist groups about the epacific loval of protec, tion at nuclear plants, and since more specific and sensitive information of t.his nature is public, there is a dispute concerning the importance of the GESMO BTLs to terrorist groups.

Id. at TT 8-10.

The possible effect of disclosure of a. document is a factua'l

, issue.

Ray v. Turner, 587 F.2d 1187,.1215 (D.C. Cir. 1978)

(Wright, J.,

concurrir.g).

The court acknowledges that distinctions between information already released.and information withheld is often a matter of agency judgment.

The court a'so recognizes that just because the government has revealed some information about a particular subject does not require that it

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reveal all.

See Military Audit Project, 656 F.2d at 752-53; Afshar v.

Department of State, 702 F.2d at 1130-31.

" Bad the NRC submitt'ed affidavits.or other sworn statements elucidating the factors upon which the NRC rests its judgment about the GESMO Report, or explaining what incremental harm could be expected to come from release of the GESMO BTLs, the court would have accorded substantial weight to those affidavits.10 The NRC, however, provided only a brief justification for withholding the GESMO

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Report.

That justification, considered together with the evidence -

submitted by plaintiffs, leaves unresolved the question whether 20With respect to the Shankle Report, for example, the NRC

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centeaded t'.rt C;1. Shankle's particular expertise justified withholding his report.

Since the court found that the Shankle BTL ltself was already in the public doma'in, the court was not called upon to consider the merits of that argument.

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discloguro of ot leost soma of the withhold portionr. of the GESMO 11 roport reasonably could be expected to cause damage to the nation,a1 security.

In the ordinary' Exemption,1 case, a judge's determination that the government has not clearly met its burden on a summary judgment motion results in in camera inspection of the documents.

See Holy Spirit Association v. Central Intelligence Agency, 636 P.2d 838'(D.C. Cir. 1981);[Hayden v. National Security Agency, 608 F.2d'1381 (D.C. Cir. 1979); Ray v. Turner.

In camera insp'ection would hardly be useful in this case because knowledge of the GESMO BTL estimates themselves would not resolve ~ the

'ac.tual issu.e of whether release of those estimates, given other f

information already in the public domain, reasonably could be expected to cause harm to the national security.

The NRC's not,lon for summary judgment wit respect to the GESMO Report is denied.

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CONCLUSION

_ Plaintif fs' motion for partial, summary judgment is GRANTED.

The NRC's motion for summary judgment is DENIED.

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  • ~ UNITED STATES DI5;AICT JUDGE DDtet Y

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11while there is evidence in the record about the capabilities of various p22nts to withstand threats, there is no evidence in the record controverting the NRC's determination that judgments about the limitations of particular agencies to respond to threats to f acilities could indicate the ~ capabilities of federal and law onforcement agencies.

Even if that information is properly exempt under Exemption 1, however, the GESNO BTLs appear reasonet2y segregable from the deleted portions referring to s

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'T UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA i

' i JOEN ABBOTTS, et al.p Plaintiffs, v.

a C.A. No. 77-0624

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'O.S.

NUCLEAT. REGULATORY

- F. 1 L. E D COMMISSION, s

JUL 221983 i

JAmiS F. DAVEY,- Cleri:

Upon consideration of defendant's Motion for Summary Judgment, and Plaintiffs' Motion for Partial Summary Judgmelit, an3 each party's statements of opposition thereto, it is ORDERED:

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O That defendant's, Motion for Summary Judgment is DENIED; and That plaintiffs' Motion for Partial Summary Judgment is~

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GRANTED.

'It is FURTHER ORDERED that'this matter is set for hearing on August 16, 1983 at 10:00 a.m.

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VNITED STATES DISTfiCT JUDC

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Civil Action No. 77-0624

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COMMISSION,

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RENEWED MOTION FOR SUNy.ARY JUDGMENT On July 22, 1983, the Court denied defendant's Motion for Summary Judgment with regard to the limited portions of the two documents at issue in this case:

(1) part of one sentence of the Shankle Report, and (2) part of one page of the GESMO Report.

With regard to the Shankle Report material the Court granted plaintiffs' motion for summary judgment, with regard to the GESMO Report material the Court ordered an August 16, 1983 hearing.

This motion involves only the GESHO Report.

By this motion defendant Nuclear Regulatory Commission

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("NRC") renews its motion for summary judgment as te th'e GESMO Report.

As is clear from the accorpanying Statement of Material Facts, affidavit, and memorandum, there are no disputes of material fact and the NRC is entitled to summary judgment on that part of i

the single page of the GESMO Report remaining at issue.

Additionally, by separate motion filed today, defendant requests the Court to continue the August 16, 1983 evidentiary hearing on the CESMO

~

i

'a Report until af ter the Court..has ruled on the NRC's Renewed Motion for Summary Judgment.

i Defendant requests oral argument on this motion and.isuggests

-j i

that that ' argument might be scheduled, if convenient to the t

Court, for 10:00 a.m. on August 16, 1983 -- the time presently j

i set for the evidentiary hearing in this case.

Respectfully submitted, l

i A % b:. J W'w u i

'$TANLEY S.

HARFdS d

7,.

United States Attorney i

ROYCE C. LAMBERTH Assistant United States Attorney 1

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g.

WILLIAM H. BRIGGS Assistant United

ates

.torney i

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OF COUNSEL:

PARX E. CHOPXO DAN M. BERKOVITZ Attorneys i

U.S. Nuclear Regulatory l

Commission Washington, D.C.

20555 i

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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMSIA

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JOHN ASBOTTS, g g.,

)

)

Plaintiffs,

)

)

v.

)

Civil Action No. 77-0624

)

U.S. NUCLEAR REGULATORY

)

COMMISSION,

)

)

Defendant,

)

)

STATEMENT OF MATERIAL FACTS AS TO WHICH THERE IS NO GENUINE ISSUE r

1.

The only item put at issue by this motion is part of one page of the Nuclear Regulatory Commission ("NRC") Staff's " Draft

'a Working Paper for the Safeguards Supplement Report, GESMO Study"

("GESMO Report").

Third Supplemental Affidavit of Robert F.

Whipp ("1983 Whipp Af fidavit") at i 2, b, and Exhibit 2.

2.

The withheld material on this page identifies certain baseline threat levels which " reflect [] the size of the group which the NRC believes would be the nu' ber of people involved in m

an assault on a nucienr facility."

June 7, 1979, supplemental Affidavit of Robert T.

Whipp at 7.

Moreover, * [t]he baseline threat levels identified [on the page at issue) reflect the NRC current rules.

for the physical protection of nuclear plants and materials to the extent that the specific quantitative levels are reflected in the general criteria outlined by the rules."

August 27, 1979 Answer to Plaintiffs' Supplemental Interrogatory at 2.

In other words, the GESMO Report quantifies the safe-

guard term " group which is.found in the NRC's current rulos.

o 10 C.F.R. S 73.1 (a) (2).

1983 Whipp Affidavit at.1's 8, 11.

3.

The GESMO report is a working paper pre, pared by*She NRC staff and it reflects the FS.C views on what credible baseline threat levels may be.

1983 Whipp Affidavit at s's 8,

11.

In this respect it has "an official imprimatur" that some other sources of baseline threat information lack.

1983 Whipp Affidavit at i 11.

4.

kt is the judgment of the NRC.'s classification experts that release of the specific numbers which the NRC currently relies on to determine the adequacy of a nuclear facility's safeguards would give useful information to terrorists or other groups intent on sabotage.

For this reason the NRC expressly expunged such GESMO information from all reported opinions in the Diablo Canyon 'icensing proceeding just last year.

1983 Whipp Affidavit at 1 10.

5.

Although there is other information discussing various safeguards in the public record, the NRC can neither confirm nor deny whether that other information is reflected in the GESMO material here at issue.

1983 Whipp Affidavit at 1 9.

Moreover, J

there is a qualitative difference between the GESMO Report and

~

these other reports.

The GESMO Repor* was prepared by NRC staff,

and specifics 11y discusses the NRC's views on credible baseline threat levels.

Most importantly, unlike the other materials in the public record, the GESMO Report quantif'les the meaning of the term " group

  • as ref.

.ed in current s a f eguard rules.

10 C.T.R.

Affidavit at i

8, 13.

S 73.1 (a) (2).

Ift) 2

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a Release of this information would, in.the view of NEC's' experts, provide ;an important piece of the entire safeguards puzzly to an

^

r-individual or organization which was seeking ' t'o ' breach the security of nuclear facilities.

1983 Whipp' Affidavit at 5 11.

Respectf611y submitted, 1

Ah,A A '/G.

STANLEY Sj HARRIS si United States Attorney i

ROYCE C.

LAMBERTH Assistant United States Attorney

\\

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+vo/

WILLIAM H.

BRIGG

~

Assistant United tes At orney OF COUNSEL:

MAkX E. CHOPXO DAN M. BERXOVITZ Attorneys U.S. Nuclear Regulatory Comis sion washington, D.C.

20555 4

O J

t i

Sun 3

P W

  • E--"-

T

IM THE UNITEL STATES DISTRICT COURT, FOR THE DISTRICT OF COLUMSIA i,,;;.

)

JOHN ABBOTTS, et al. ;.

)

)

, Plaintiffs,

)

)

Civil Action v.

)

No. 77-0624 i

)

i U. S. NUCLEAR REGITLATORY

)

COMMISSION

)

)

Defendant.

)

)

THIRD SUPPLEMENTAL ATFIDAVIT OF ROBERT F. WHIPP

~

)

State of Maryland

)

55**

County of Montgomery) 1 Robert F. Whipp, being duly sworn, deposes and says:

1.

I am Chief of the Informetion Security Branch, Division of Security, for the Nuclear Regu3atory Commiri on

("NRC").

The stctements r.ade in this afridavit are based upon my knowledge, upon information available to ne in my official capacity and upon conclusions rea:hed in accordance therewith.

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2.

Through my officiil duties I have become acquainted.

' w'ith;the Freedom of Information Act ("FOIA") reques,ts.

' e-submitted to the NRC by the plaintiffs in the,sebove captioned litigation and with the two documents identified below which are subject to those requests:

a.

Col. William Shankle, "Censideration of the Threat and Potential Threat to 'O.S.

Nuclear Power Industry",

undated ("Shankle Report * ).

b.

NRC staff, " Draft Working Paper for the Safeguards Supplement Report, GESMO Study."

("GESMO Report").

3.

I have submitted three prior affidavits in this livsuit, explaining why the information in the above docu-ments was properly classified and why its release would be expected to cause damage to the national security.

Aff.ida-vit of June 20, 1977; Supplemental Affidcvit of June 7, 1979: Second Supplemental Affidavit of September 30, 1982.

I have also answered for defendant several of Plaintiffs' Interrogatories in this case.

See Responses to Plaintiffs'

~

Interrogatories 5-8, December 15, 1977.

I also provided the information for the Response to P*.aintiffs' Supplemental Interrogatory in August 1979.

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I am fandliar with this Court's. decision of-July, 22, ),983, which ordered release of the Shankle Report.and. a.

4 hearingonthequestionofwhetherrelease'o'f'_$heGESMO Report reasonably could be expected to cause harm to'the

[

.netional security.

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- l SEANKLE REPORT l

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5.'

The dis;uted portion of the Shankle Report in this

{

1ausuit, part of one sentence in the middle or one page, see Exhibit I hereto, contains information on Col. Shankle's view of,the levels of threat against which the nuclear '

f facility safeguards system must protect (baseline threat l

levels).

i i

)

6.

At the time of my Resperse to Plaintiffs' Interrog--

atories in December 1977, it was my judgment that t!.e portion of the Shankle Report at issue in this lawsuit was i

r of a quality different enough from publicly available material to justify a " confidential" classification.

For i

example, it was my view that the NRC Task Torce on the i

Conran allegations did not purport to quote the Shankle Report but rather a ' preliminary paper" regarding that l

k t

Report.

Additionally the DIA Report referred to in the Court's opinion did not purport to quote the Shankle Report or even a dreft of that Report.

Since the i

I l

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y

1 7

i time of its original classification, the Shankle Report has-been, reviewed for declassification on several occasions,-

~

most recently in September 1982.

-'d'

'ee 7.

In light of this Court's J,uly 22,, 1983 memorandum, the NRC is now considering the appropriate course of action for it to take with regard to that-portion of the Shankle-Report at issue.

i l

GESMO REPORT

[

8.

Regardless of the ultimate dispositon of the

- disputed sentence of the Shankle Repert, the disputed part of the draft GESMO Report, Exhibit 2 hereto, dealing with.

'l baseline threat 1cvels, should, in'my judgment *,' continue to

~

i be withheld from public disclosure.

The draft GESMO study is a working pcper by the agency staff on what credible i

baseline threst levels may be.

As was stated in Response to plaintiffs' Supplemental Interrogatory (August 27, 1979),

the information in the GESMO Report reflects the NRC current j

rules for the protection of nuclear facilities and materials j

to the extent that the specific quantitative 'evels are reflected in the general criteria outlined by the rules.

In other words, the GESMO Report contains the specific numbers of attackers that provide the basis for the design of a facility security system and the determination of whether a I

plant's security system is able to withstand an attack by a j

D G

i

s a

' group", as ' required by 10 CFR 73.1(a) (2).

Release of this information. thus would make public specific i'nformation about the safeguards planning and security'a.rrangementl'now in place at specific facilities.

9.

It is' my professional judgment that either a confirmation or a denial that the information already made public is the same as that in the disputed portion of the GESMO Report could reasonably be expect ed to cause harm to the national security.

Confirmation would have the same i

effect as disclosure, which would be detrimental for reasons

[

discussed belows denial, by eliminating one of the i

possibilities, would assist a person hostile to the interests of the United States speculating on what the true levels really are.

Accordingly, I can neither confirm nor i

deny that the GESMO Report inforration already is public.

For the reasons set forth below in 55 10 nd 31, I believe f

.that there is a difference between the nature and character l

of the information in the public domain and that in the GESMO Report.

's l

10.

In my judgment, release of the disputed portions of the GESMO Report could reasonably be expected to cause damage to the national security.

Releasing the specific numbers that the NRC relies on to determine the adequacy of safeguards measures would give terrorist groups bent on 5

l

T s

f sabotage of, or theft from, a nuclear power plane or other protpcted facility (such as one that makes reactor fcq1).

.y informationabouthowmanypersonsmightbe,ayleto accomplish such a purpose.

Such information is obviously I

sensitive and deserves protection.

Moreover, the Cem-mission's actions in the Diablo Canyon li' censing proceeding last year confirmed the continued sensitive nature of the information.

Certain baseline threat level information was made part of in camera proceedings c'oncerning the security plan for the facility.

That information, which includes numbers from the GESMO Report, was expressly expunged from the decisions and the record in that case when the balance of the information was disclosed.

See Pacific Gas and Electric Co. (Diablo Canyon Nuclear Power Plant Units 1 and' 2), CLI-82-19, 16 NRC 53, disclosing ALAB-653, 16 NRL 55, 69 (1982) (Exhibit 3 is an excerpt from ALAS-653 for illus-tration); CLI-82-30, 16 NRC 1234 (19S2).

Turthermore, the NRC Executive Director for Operations has directed that the NRC staff should continue to classify such numerical estimates which show " threat levels for contingency planning" and " threat levels against which NRC licensees can or cannot protect".

(NRC Classification Guide for Sa feguards Information, Revised May,1983) (Exhibit 4).

j 4

11.

There are clear qualitative differences between the GESMO Report and the reports frem which the information 6

r already public is derived which support my judgment that relepse could reasonably be expected to harm natienal...

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+; -

security.

The GESMO Report was prepared by"thN NRC staf f; hence it has an of ficial imprimatur.

Accordingly, it is r,

likely to be accorded significant weight by potential attackers in trying to determine appropriate attack levels i

when planning terrorist activities.

Secondly, unlike other NRC st'aff reports and reviews, such,as those noted by plaintiffs and by the Court here (including the Shankle heport), the GESMO Report reflects current NRC safeguards rules by giving a numcrical meaning to the word " group" as used in 10 CFR 73.1 (a) (2).

Althcugh, as the Court noted, Plaintiffs' Exhibit 6, the Special Safeguards Study (the Ros,enbaum Report), and Plaintiffs' Exhibit 7, a draft executive summary of an NRC report on the need for a securi-ty agency within the NRC's Office of Nuc1 car Material Safety and Safeguards, contain baseline threat level estimates,

-these particular estimates were not used to define the meaning of " group" 'aus used in 10 CFR S 73.1 (a) (2).

Thus, UnC has not made public or confirmed the precise f

quantitative nature of its safeguards rules, a~s noted above.

[

Release of the disputed information in the GESMO Report could encourage various adversarial groups to attempt to extrapolate additions 3 classified safeguards information, which the Commission has determined, equires complete

{

confidentiality, from the information already in the public 7

t domain.

In short, releasi g one piece of the safeguards s

puzzle may enable persons to get a better idea of the-entire

.+

safeguards picture.

'i' t

12.

For these reasons, I believe release of the disputed portion of the GESMO Report or further co:=nent, f

including confirming or denying that this information is public, could reasonably be expected to damage the national security.

Accordingly, in my professional judgment that

,.. information should continue to be withheld, as information protected against mandatory disclosure by Exemption 1, of the roIA.

~

I affi'rm under penalty of perjury that the foregoing is true and correct.

Executed on August J,1983.

Y

' Robert F. Whipp', Chief Inforr.ation Security Branch Division of Security U.S Nuclear Regulatory Commission Washington, DC 20555 4

6

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]n" conclusion, it appears that terrorist ccpabilities and goc 1s which have i

been demonstrated to date hDve introduced a potentic1 which should be cen-k,.

i sidered in establishing security systems for the nucleer potter industry.'

.]t trould cppear prudent to provide a security system r:hich can, in i

i, addition to control of Duthori2cd personnel and equipmen't, provide adequate l.

I protection of ser.sitive facilitics ar.d material on a dty-te-dey b7. sis I

"cgsinst on cdyersary group of

! dedicated, nell-trained fanctics b

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Close cor.toct could then be i

t s.

r.:sintained by persor.nel responsible for security with the ir.telli ence D

,r cc:~nunity and inn enforcement agencies s:ho v:ouid be dcpended cn icr icequ::e i.

E unrning of any plcnned attach by a 1erger force.

Provisions should be i.,cde h

F for increesing security in the event of detected or suspected malevolent E

inicnt by Ony force v:hich cou'd be expccted to defeat the day-to-dcy

{

security system.

l.

C rimi ne_1, f

~ Chcracteristics:

Criminal groups and individuals eper:te for personci fir.cncial gein and are highly secretive.

The leaders of organi2ed crin.e

+

f, tere efficient and c:ercise.' strict discipline.

Cont.rary to terrorists,

  • : i.iir.nis uant to a t trat.: no public sitention cnd they execute clandestine

. cviert c;)cra tions i:hes;c possihic..

Criminain have ct@bilitic; for I

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' Adversc ry Grovo siz e,.

Four externai and three internai adversary L ~~ gr~oup sizes are proposed as follows:

Maximum Group Sire variations (Icople)

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'.'. Exte'rnal Adve rsa ry

~

l Interna) Adve'rsary The above ranges of variation for group..ize

...... lected to s

were se j

Assure r'easonable c'pverage of the range of possibilities noted i

from the inford.stion survey.

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k'ith regard to the external adversary,' the lowest maximum group size.of e.

is not likely to be exceeded under conditforis of civil

.J

' ' ordgr.

l.sreasontbie'from i

i the star.dpoint of historical perspective;;

t i

.rrepresents the maximum group si2e judged likely frcm the standpoint of historical

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perspective..

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it.r the internal adversary h

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...us. 5. s.:se si, es u vonce usuwa arg.cs tur. ei rs. ines inc sua ee.m-s nowhere " spelled out'it: intention to limit she desiga besit threa and shai there la g

stfeguards rule *8 with sie :ame eatern:t adversary stircar conseincJ in t.he pro no basis to ixfer such ineentioe is to ignore toselly all cf the segulatory history rule.De fact that the Commission intended the"several gersons"of the ad]

poiswirg la the opposi:2 direction.8815 short, Governor Drowa*: position implies rial force [!! strongly suggests a limit of (4 penons forthedesigq ihat the Comenission increased the size of the design basis setversuial force threat of Section 73.l(s)(1). This is so because a group of more than ~ [q widusrt (1) informing its ssoff,(2) analysing whether the provisions of the textor his additional evhlence, combined with the other catensive regulasory hised setvrity rule woutd le cither adequate or cost effcesiv'e against the larger threat. or tie scactor safety rule, convinces us that the "several persons' langenge (3) inceresing the sire of the minimum response force.

design basis threat must lie interpreted as no rnore than lit stixkcrs Moreover, Governor Droyrn's argument is inconsistent with the Ci mmission's - (

l Y., We have concluded that at the time the Cornanission promulgseed the r subsequent staiements con 6erning the size of the Section 73.I(a)(l) adversarial security regulations, it interwied the estcenal threat to be limited to force. Five moashs afner is promulgated the reactor security rule, the Commission l

stracters. No subsequent Cosnmission action is inconsistent with this inecq published a proposed rule amending the safeguard requirements for fuct cycle tion. If we have erred, however, in divining its intent, we ere confident th Iacilities." The e sternal threat component of the general performance requiremen:

Commission will cortect us. We we equally sure that the Con

  • mission wi in Section 73.20 of she ymp;ed saIcguards rule was identical to that for power appropriate action should it now believe'ihat a new inscrpretation of t!e site cacsors is scetico 73;l(s)(l) except that the size of th e atinck force ws: character.

design besis adversarial force is necessary.

ired as a small group" with 9he ability to operate as two or mom icams.'"In a llecause we have interpreted the design basis threat as being limited to statement accompanying the proposed rule, the Commission contrasted the en.

attackers, we need not determine whether the applicant's Diablo Canyon se

ernal th/ cots for fuel cycle facilities and power reactors:

sys'em and organization can successfully protect'the facility against an adve The adversary postulaJed la the proposed regule6.s is different from I

force of [tI or more penoris. Dut it does not perforce follow that, beces that in D3.33 with respect to the size of the adversary, force.The site of j

design basis threas islimitedio lft attackers, a larger groep could succe<

postvlased adversary forte against which the safeguards performance is to commit radiological sabotage et Diablo Canyon. We have little doutie on th be evolussed has been espressed to inslicate that the group is large enough of ele entire record before us that the opplicant's security systein armiorgsni to employ c frcctive team maneuvering iactics, unlike the "several penons" could, with perhaps even the requisite dcgree of high assurance, prosect the single scarn potteleted as the adversary in 93.55."

sgainst some larger number of attackers.

.l "Ik=ilmly.'w;r find

. -_ ' ; Govevene Seewe's ergoewee chas she mount et she.kectar of e

  • < a R.s e pens eer,,ee,e e we ky..e etshe ok led; ease dw inJefiniseetse of tlw site ed h design f

'8 See 4) Ied. IFF. 33III IA's'd I. IIIII-r hates eJesersal tege. Dr. se s 9. Ydee Le gemers she Dweesw's pwu cearenere seeraase As the 88 See 4: feJ. Reg. 6sist (Newenhre 1s. 9979).

  • er e *w.eus pene s* was *le]>hekeedy... gnww thee one aaJ... smoure iba 100* is sue s e l'.she, sepge., fee sNe ias,ry,v ineam is else preeW hy dw lateresaalen eses *4een !*en le.=q Cee Fa.3-4.Pnsat =t.nare Tneerrise Jmed rv6,very 17.1977.p. t 3. TM Dimsar SI'CY.76-241C. p.1.== A sue of N *6 o bde adanwulI'*** N fal'f(k fWII"*" 3 t

,ese sup a nr4 ee she sanw eseu.mo d.as k woulJ een g=s e nog e se % serm. Its ows.is e 1. Met

,e.e. smenty merd de eh.4mes when he owJ ik quered I gwere, l. dred.e4 Dwester's respwaw is

s. pre, he eabbie ind pes tbr sM parrwl edesusal hem for het eyene fecal ire we se esty be ergea kd fewesi e duas er lll rerica, es e 1l esswewa===rededee b 4 e ansesseas web be set eas as one of the t=e priar. ret eJe=retes wbs ewged she Comise.1tive to eleiree Ae 34=e.r.: uneen erwl feem %,s 7)..tsgs) and wr are is wah a gemeenheed deser.se.na in e,

e.,ds asisdy, hee, in she laagnge of yeeposed Seeme W.

(n. el M #ar e

tsar==euen wah e se=daal med w=meeseen respeene losee setsareenees se as to emettsi she esect 34 } ; g (3.ty 3, gg y7t ne Cowee,se coesie.acJ ahas is iesendrJ eo ndays the tketas teMf nee

  • * *8'*" w.

ed is GliSMO =hes se servusswd she perewJ pieg=**ds rek. See 43 ieJ. A's. 33338 n

(Aetns 9. IV7s).

tensa y ee,.ncing 4, C,wes, gae,e*s erressness eseceveing due b4sy 1977 eengressiment tew===y or she Aes.3I beciar el NR R, Os. a( T. le nas wet to e q=e o.ee se 4 Je( eien et "memet

    • We cannise attege Gewerter Deves's argwaaras ebet *]Ils weeld be newsnelues. amelrd. W f**'mes.* she Aswas thneone oesg d.J As A,gemey had ese Araud W=e sine of ik dedge basis wkk ourge.Py ur,egehen.ag es ng,4,aury n.pwe wees ww)J bow ndwed & su e=8 e%i

we m fwere se **y earlassificJ anfomaskie. Cee, f a.15 (for eJewJitsa==L Oeersi e ikanagi o*

y, g,,,,,, g,e JrfeedeJ og neu by bcbeg owey (com se=e shes e sisase; egend sees save as." 3 t

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  • f h Ib= wee C======== en leervier eaJ leseler Aff nri 9)sh Co=gnes. Isa Seswee it i197 F),

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,, pe,e,,,,,,,s.7,.g m ednn.,ul bre twget sham idear*=res of EAme G. CaseL Q wer Deews wgwe he si.we 5esti rawb;is 5-s ov wgh 5 8I wt n,,

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    • e eiesofwd. shew dwuseres essere bc ondennemal te lemis h sneening ef *weent.* As she t.ime she gg,,,,,, ggy3g, g,g,3,,,,yg,hca=w. he preses se tegol mesasu Je d=s Go *es t.17 el<=r t1 9 9 e.es D.e.er w.<.,d.

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262 Contingency plans.

4

~

'. 262.1 Response to a specific threat, e.g.,

C-SNS]'.

i disposition, armament or planned Declassify i

response of security forces includin~g 'c On:

0ADR number of personnel responding to

. specific incidents.

Secret when revealing increased degree

.b:

of vulnerability of a site as a result f

p't)p of a specific action.

g 1 [d.,*

262.2 Arrangements with local, state, and U

5 federal law enforcement units.

O 4

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See Topic 262.1.

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j 262.3 Numerical threat level for contingency CNS Declassify planning.

On:,0ADR 263 Response time of guards and backup force.

263.1 Response time required.

U-CNSI -

Declassify -

On:

OAD,R Unclassified if stated in unclassified NRC manual chapters or regulations.

263.2 Actual response time capabilities.

C-SNSI -

Declassify -

On:

OADR Secret when rever. ling increased degree of vulnerability of a site as a result of a specific action.

264 Security patrols.

264.1 Procedures, schedules, and f requency CNSI -

Declassify for routine security tours.

On:

0ADR i

264.2 Actual prearranged schedule including CNSI -

the. specific times and locations.

Declassify On:

OADR 270 PERSONAL VERIFICATION (EMERGENCY OR DURESS) CODES CNSI-

~

AND/0P. HDW THEY ARE USED Declassify On:

0ADR

^

O

't.

412 Evaluations of sce6arios for theft, divers'en, C-SH51a.

or sabetage.

Declassify On:

OADR

. Secret if significant vulnerability is revealed, e.g., degree of seriousness or explicit means of. penetrating security

..,,/ -

defenses is disclosed.

413 Site-specific or route-specific diversion C-5HSI" -

path or vulnerability analysis.

Declassify On:

OADR Secret if significant vulnerability is revealed, e.g., degree of seriousness or explicit means of penetrating security

. defenses is disclosed.

414 Diversion path or vulnerability analysis U

methodology, e.g., general techniques (fault tree, event tree, systems analysis, etc.).

C-SNSI" -

420 PLANS FOR RESPONSE TO THREATS Declassify on:

0ADR Secret if significant vulnerability is revealed, e.g.,' degree of seriousness, er explicit means of penetrating security defenses is disclosed.

421 fact that current HRC regulations are intended U

to cover a threat of several people.

422 Vulnerabilities of specific facilities.

C-5N51* -

Declassify On:

OADR g

. p;g Secret if significant vulnerability is p

reve aled,. e.g., degree of seriousness or h g,6.[-

explicit means of penetrating security defenses.

p C

5 r

g6l 423 Threat levels p

C-5NSI -

{

/

423.1 Specific threat levels against which Declassify the NRC licensees can or cannot On:

OADR

{

protect.

)

  • Individual items of information not revealing (1) significan't informaticn concerning the (a) security protection, (b) the dispesition, armament, or planned response of security forces or (2) informat-ion classified under other topics of this guide or other applicable guides should be submitted through channels'to the NRC Division of Security, for ppssible declassification.

l.

17

t UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA si m

.,c' 1r"

~ #

JOHN ABBOTTS, g d.,

)

)

Plaintiffs,

)

)

v.

)

Civil Action No. 77-0624

~

)

U.S. NUCLEAR REGULATORY

)

COMMISSION,

)

Defendent.

)

)

)

)

MEMORANDUM IN SUPPORT OF RENEWED MOTION FOR SUM.5'.ARY JUDGMENT INTRODUCTION _

This lawsuit was filed in 1977 under the Freedom of Information Act

("FOIA"),

5 U.S.C.

S 552, for a number of documents concerning the safeguerds which the defendant Nt. clear Regulatory Commission ("NRC*) applies, should apply, or will apply to protect nuclear facilities tgainst sabotage and other threats.

In 1979 the parties supplemented their various motions for summary judgment and narrowed the areas of dispute in this case td limited portions of two documents, both concerning

" baseline threat levels",

i.e.,

the quantitative size of the risk against which facilities containing nuclear materials should be protected.

The two matters at issue since 1979 are portions of one sentence of the Shankle Report and portions of one page of the GESMO report.

Exhibits 1 and 2,

to Third SuppJemental Affidavit of Ecbert F.

Whipp (August 1,

1983)

("1983 Whipp

... t Affidavit *)

filed herewith.

On July 22, 1983,.this Court denied the NRC'M motion for summary judgment on both matters and, granted

,'9 plaintiffs' request for relief by entering pa'r.t'ial sucr.a ry judgment for plaint.ffs on the disputed sentence of the Shankle Report and by ordering a trial-typc hearing on the disputed page of the GESMO Report.

Although we respectfully disagree with the Court's conclu-sion that the relevant Shankle Report aterial has alreedy been released to the public, that item is not put at issue by this motion. 1/

This motion only seeks reconsideration of the Court's denial of our previous motion for summary judgment regarding the disputed page of the GESMO Report.

By filing this motion we are accepting the Court's invitation to submit additienni affidavits concerning the GESKO naterial in order to avoid an unnecessary evidentiary hearing.

Memorandum Opinion at 13.

As set forth in our previous filings and the additional affidavit filed today., the dispute d portion of the GESMO Report is still properly classified as ccnfidential.

Release of this caterial " reasonably could be expected to cause damage to the national security."

E.0.

12,356, SS 1.1 (a) (3),

1. 3 (a) (7) and
1. 3 (3) (Exhibit A).

Thus, it is clear that defendant's Renewcd Motion for Summary Judgment thould be gr anted and summary judgment should be entered upholding the NRC's withhciding Of the single disputed page of the GESMO Report.

1/

The NRC is presently reviewing the disputed portion of the Shankle Report to consider the course of action that should be taken wits, regard to that item.

2

a y ARGUMENT

'As t,he Court's July 22 Memorandum Opinion recognizeg,*[.s)um-

4..

mary judg=ent on the basis of agency affidavit's 'iz' warranted 'if the affidavits describe the documents and the justifications for nondisclosure with reasonably specific detail, demonstrate that the information withheld logically falls within the claimed exemption, and are not controverted by either. contrary evidence in the record nor by evidence of agency bad faith."

Nemorandum Opinion at 4-5, cuotine Military Audit Pro $ect v. Casey, 656 E.2d 724, 738 (D.C. Cir. 1981).

This standard has been recognized in a number of Court of Appeals cases.

See, e.e.,

, Salisbury v.

United States, 690 F.2d 966, 970 (D.C.

Cir. 1982); Lesar v.

Department of.7ustice, 636 T.2d 472, 481 (D.C. Cir. 1980). Thus, the. Court must giant the NRC summar*' judgment if the withheld

~

part of the single page of the GESMO Report at issue is (1) described with reasonable specificity, (2) logically within the claimed exemption, and (3) not withheld in bad faith.

The specificity and bad faith requirements are not at issue here.

All knew what is being withheld -- numbers -- and no allegations of bad faith have even been argued as possibly precluding summary judgment in this case.

Thus, the single central issue in this case is whether the numbers being withheld are logically related to the NRC's classification decision.

As set forth in detail in the entire record of this case, 2/ and as set forth with detail, 2/

The Court refused summary judgment earlier on that reco-d; erroneously, we believe.

Because this case is so old, and the iesues have been briefed in a piecen.eal manner since our initial (FD07 NOTE CONTINUED ON NEXT PAGE) 3 1

n r focus and clarity in the 1983 Whipp Affidavit filed today, there is an ob.vious logical relation between the release of thp,GESMO 4r Report baseline numbers and the confidential classification of those numbers.

Disclosure of those numbers ' reasonably could be

e.,

expected to cause damage to the national security," E.O.

12, 356,

~

because their disc 1osure could assist an adversary group in formulating strategy and tactics in planning an attack on a nuclear facility and could also invite such an attack by leading such an adversary grcup into believing that'an attack force gr, eater than those numbers would have success in its theft or sabotage mission.-

1983 Whipp Affidavit at 5 10. EI Importantly, the issue in this case is not whether the Court, plaintiff, or plaintiffs' expert agrees with this logic, the issue is whether the agency's rationale is reasonable and plausible.

Gardels v.

Central Intelligence Acency, 689 T.2d 1100, 1105 (D.C. Cir. 1982); Halperin v. Central Inte111genee 2/

(FOOTNOTE CONTINUED FRCM PREVIOUS PAGE) summary judg=ent motion was filed in December, 1977, the record is not as focused as would be preferred.

Nevertheless, the GESMO Report is specifically described in critical part in defendant's August 27, 1979 Answer to Plaintiffs' Supplemental Interrogatory a t 1,.

/

we emphasize that the Although the point appears obvious, J/safeguarding of nuclear caterial is a matter clearly, directly, and logically the subject of classification.

It is emphasized in the Executive Order at issue.

E.O. 12,376 at $1. 3 ta) (7).

More-t over, Congress has instructed that certain safeguards information be kept from the public.

42 U.S.C.

5 216 7 (a )..

Plaintiffs assertion that this information should be a natter of public debate has been specifically rejected by both branches of government.who bear the direct constitutional responsibility for naticnal

[

7 security.

t 4

y

3.

n g /9 /

,'o 3.

Acency, 629 F.2d 144, 148 (D.C. Cir. 1980); Hayden v.

National Security Agency, 6 08 F. 2d ' 13 81, 1388 (D.C. Cir, 19,79), cert.

denied, 446 U.S.

937,(1980).

FOIArequiresthecourts$,'give b

" substantial weicht to an agency's affidavit concerning the, detsils of the classified status of the disputed record."

Military Audit Project, supra,. 64 6 F.2d at 738, cuoting from legislative history (emphasis by the Court).

"[T]he court is not to conduct a detailed inquiry to decide whethe'r it agrees with.

the agency's opinions; to do so would. violate the principle of affording substantial weight to the expert opinion of the agency.

Judges lack the expertise necessary to second-guess such agency opinions in the typical national security FOIA case."

Halperin v.

CIA, supra, 629 F.2d at 148.

With all due respect, tha Court's ruling of July 22 has ignored this fundamental -

premise of exemption 1 FOIA law.

Plaintiffs assert, and the Court's July 22 Memorandum Opinion finds, that factual disputes preclude summary judgment on the GCSMO material since other reports (including two NRC reports) also mention some baseline threat numbers. Both the law relating to disclosures of similar information and the facts relating to t

the.GESMO Report preclude a finding of bona fide, material, factual disputes in t'.is esse.

This circuit has heard similar claims of related disclosures in the past -- and they have been rejected with uniformity.

The

' fact of disclosure of a similar type of information in a different case does not mean that the agency must make its disclosure in 5

n s

.e overy case."

Salisbury v. United States, 590 T.2d 966, 972 (D.C.

Cir. 1982.)'; Military Audit Project v. Casey, 656'P.2d 724 752-53

'fr (D.C. Cir. 1981).

At least two independent policies support this recognized legal proposition.

First', if disclosure of one item were to meen that all related items would lose their classified status, agencies vould be encouraged not to disclosure anything remotely related to a classified subject.

Such a rule would thus be contrary to the general disclosure policy of the FO'IA.

Sie, e.o.,

Salisbury, supra, 690 F.2d at 971.

Second, es the cases recognize, similar information may be of a very different intelligence value to an adversary and Courts must respect agency judgments regarding this di f f e rence.'

See, e.o.,

Military Audit Proiect, supra, 656 F.2d at 752-53, regarding the' G1cmar Explorer project, certainly an event $. ore widely publicized than the baseline threat levels being sought here.

As stated in Halperin v. Central Intellicence Acency, 629 F.2d 144, 150 (D.C. Cir.

1980):

We must take into account that each individual piece of intelligence information, much like a piece of jigsaw puzzle, may aid in piecing together other bits of information even when the individual piece is not of obvious importance in itself.

i The strong legal considerations that support the NRC's with-holding of the GESHO materials are underscored by.the important factual differences between the GISHO materials and other safeguard materials in the public record.

The current NRC safeguard rules, which publicly speak in general terms like " group," 10 C.T.R.

5 73. 2 (a) (2), are given specific numerical meaning by the disputed i

6

n e

.9

.s

~

portions of the GESMO report. ' 1983 Whipp Af fidavit at s's 8, 11.

See a'lso,, Defendant's August 27, 1979 Answer to Plaintiffs'

.i, c'

Supplemental Interrogatory at 1.

These materials have never been released to the public nor have plaintiffs argued to the contrary.

Moreover, any confirmation or denial that any public numbers reflect the numbers defining current safeguard rules would have precisely the same effect as a public release of' the numbers themselves.

1983 Wh'ipp Affidavit at 1 9.

Indeed, as recently as Inst year in a licensing procedure involving the Diablo Canyon facility, all reference to baseline threat levels reflected in th GESMo Report were withheld from the public.

1983 Whipp Affidavit at.S 10.

As the Court properly recognized, and as overwhe,1 ming cas.e law makes clear, " substantial weight" must be accorded to agency affidavits in classification matters.

Memorandum opinion at 13.

The fact that plaintiffs expert may (incorrectly) believe that no

  • incremental harm" to national security would result from release of the disputed portion of GESMO Report is absolutely irrelevant to this case.

It is not a dispute over a material fact because o

the dispute does nothing to undermine the locic or plausibility of the NRC's claim that GESMO baseline threat levels have never been released to the public and are qualitatively different than the numbers that are currently public.

Indeed, plaintiffs implicitly concede this material fact by pursuing this lawsuit.

If there were no difference between the GESMO numbers and those in the public record there vould be no need to seek the GESMO numbers by this litigation.

7

es 2

.a CONCLUSION Th,e case law and the undisputed fa~ cts regarding the, disputed page of the GESMO Report here at issue are clear:

the'bEC is entitled to sur: mary judgment upholding its withholding of the GESMO material. O

~

Respactfully submitted, Y).+fts ! ) 1 N W a' STANLEY S'. HARRIS <

United States Attorney ROYCE C.

LAMBERTH Assistant United States Attorney s

f.

3, WILLIAM H. BRIGGS, ff/j Assistant United StWtTs A+ or.ey OF COUNSEL:

MARK E. CHOPKO DAN M. BERXOVIT2 Attorneys U.S. Nuclear Regulatory Commission Washington, D.C.

20555 f/

By separate notion we ask the Court to continue the August 26, 1983 hearing now scheduled for the GESMO Report.

8 e

.

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