ML20057B788
| ML20057B788 | |
| Person / Time | |
|---|---|
| Site: | Three Mile Island  |
| Issue date: | 11/16/1983 |
| From: | Fitzgerald J NRC OFFICE OF THE GENERAL COUNSEL (OGC) |
| To: | |
| Shared Package | |
| ML20049A457 | List:
|
| References | |
| FOIA-92-436 SECY-83-467, NUDOCS 9309240012 | |
| Download: ML20057B788 (15) | |
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POLICY ISSUE (Notation Vote)
SzCY-83-467 November 16, 1983 COMMISSION LEVEL DISTRIBUTION ONLY For:
The Commissioners From:
James A. Fitzgerald Assistant General Counsel
Subject:
FOIA APPEAL 83-A-33C REGARDING TMI RESTART DOCUMENTS
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Purpose:
To recommend
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Discussion:
On August 16, 1983, Ms. Michelle Adato, Legislative Research Assistant for the Union of Concerned Scientists (UCS), requested pursuant to the Freedom of Information Act (FOIA) that four categories of documents dealing with the restart of Three Mile Island Unit 1 (TMI-1) be placed in NRC's Public Document Room (FOIA 83-479).
The NRC issued four partial responses to this request.
UCS appeals the September 29, 1983 withholding under Exemption 5 of SECY-82-472 and its enclosures in their entirety, and the alleged failure to respond to a request for correspondence between Commissioner Roberts' office and General Public Utilities (GPU),
Contact:
Richard P. Levi, OGC, 41465 Information in this record was deleted in accordance with thepe&yn of Information 9
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'GILINSK92-436 PDR O
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2 UCS in its appeal seems to accept the withholdingI of SECY-82-472 itself and Enclosure 1 to that
- However, paper, a 26 page draft Commission order.
UCS questions the withholding of Enclosure 2 (List of Hardware to be Installed or Modified Pricr to Restart (one page)), and Enclosure 3 (Summary of Gilinsky's Office Items (3 pages)).
UCS' maintains that the NRC failed adequately to describe and justify the withholding of these two items.
Analysis I
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OGC believes 1
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J Recommendation:
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k,, James A.
Fitzgerald Assistant General Counsel Attachments:
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Proposed letter denying appeal 2.
Withheld Documents 3.
FOIA Appeal (10/28/83) 4.
Original Partial Denial (9/29/83) 5.
Original Partial Denial (11/1/83) 6.
Original FOIA Request (8/16/83)
Commissioners' comments or ';onsent should be provided directly i
to the Office of the Secr-cary by c.o.b. Friday, December 2, 1983.
commission Staff office comments, if any, should be submitted to the Commissioners NLT Friday, November 25, 1983, with an information copy to the Of fice of the Secretary.
If the l
paper is of such a nature that it requires additional time for analytical review and comment, the Commissioners and the Secretariat should be apprised of when comments may be i
expected.
DISTRIBUTION:
Commissioners OGC OPE
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HARMON 8e WEISS 172 5 L ST A C ET, N.W.
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G AIL M CCVY MARMON WASHINOTON, D. C. 2OOO6 o,)
wtLLIAM 5 JO RC AN, IH LCC L. BISHOP DI ANC CURR AN LUCI A S. ORTH o E '" " '
US'C' October 28, 1983 A?FEAL OF INITIAL FOIA DECtSIO M-@--h (f3-William J.
Dircks Executive Director for Operations U.S. Nuclear Regulatory Commission hgQ ll }-fb Washington, D.C.
20555 Suject:
Appeal from and Intial FOI A Decision FOIA-83-479 1
Dear Mr. Dircks:
This is an appeal on behalf of the Union of Concerned Scientists from partial denials of a request for information under the Freedom of Inf ormation Act.
I have enclosed a copy of the original request, which was filed by Michelle Adato of UCS by letter of August 16, 1983.
I have also enclosed a copy I
of the Commission's response of September 29, 1983, denying any access to SECY-
-472.
l UCS appeals the complete denial of access to SECY-472.
UCS also appeals the effective denial of Item 4 of Ms. Adato's request, which related to correspondence between Commissioner Roberts or his staff and General Public Utilities.
I address these appeals in turn below.
JP 1.
SECY-SS-472 The, Commission's r esponse of September 29, 1983, described SECY-8M472 as containing four parts.
The first two involve specific advice and appear to be legitimately exempt from disclosure.
The third and fourth parts are (3) Enclosure 2, List of Hardware to be Installed or Modified Prior to Restart (1 page); and (4) Enclosure 3, Summary of Gilinsky Office Items (3 pages).
The third part appears to be simply a compilation of factual information that is clearly segregable from the remainder of the document.
It is not at all clear what the fourth part is, and the Commission has given no explanation that would justify denying its release under the FOIA.
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r HARMON & WEISS William J.
Dircks Page Two October 28, 1983 The Commission invokes Exemption 5 on the premise that the release of the factual portion of the withheld information, presumably parts 3 and 4, "would reveal a predecisional evaluation of facts in the restart proceeding.'
The Commission has failed, however, to provide an explanation or justification for this position.
If part 3 simply informs the Commission of the hardware that will be installed or modified prior to restart pursuant to staff or Board orders, for example, that information is public knowledge, although it may be difficult to compile, and the fact that the public is aware that the Commission has been inf ormed of those f acts would in no way interfere with or affect the Commission's deliberative process.
On the other hand, if these are installations or modifications that the Commission is considering in addition to those requm ed by the staff or the licensing boards, or if the list indicates that the Commission is considering requiring less than the staff or boards may have required, the revelation of those facts may affect the Commission's decisionmaking process.
Thus, the Commission's right to rely upon the exemption depends upon the precise nature of the factual material and its role in the decisionmaking process.
Even if the Commission may consider the facts as it makes its decision, i
it must disclose those facts beforehand unless there is a real possibility that disclosure would harm the deliberative process.
Based upon the Commission's response, there is no reason to believe that release of this factual information meets this criterion.
The Commission has said that the f actual information is already available in the public record of the THI-1 restart proceeding.
The Commission must go beyond its bald assertion that its release would " reveal a predecisional evaluation of facts' to explain why that is the case.
Mead Data Central, Inc. v. U.S.
Department of the Air Force, 566 F.2d 242, 260-61 (D.C. Cir. 1977).
With respect to part 4, the Commission must describe the document beyond reciting the title, which is meaningless to a member of the public.
In order to meet its burden of establishing that this material is exempt, the Commission must also explain specifically why the document falls within Exemption 5 or any other exemption that the Commission asserts should apply.
At this point, it is not even clear which exemption the Commission relies upon with respect to this part of SECY-8I-472.
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'a HARMON & WEISS William J. Dircks Page Three October 28, 1983 Foc.these reasons, UCS appeals the complete denial of parts /k472.
SECY-8 We urge you to order the immediate release of 3 and 4 as identified in the Commission's letter of September 29, 1983.
2.
Commissioner Roberts' Correspondence with GPU Item 4 UCS' request sought the following documents:
I 4.
All records of correspondence between Commissioner Roberts (or his staff) and General Public Utilities, during the period of April through August of 1983.
Specifically included in this request are letters, memoranda, telephone logs and minutes of meetings.
That request was filed by the Commission on August 17, 1983.
The FOI A required a Commission response within 10 days, which was August 27, 1983.
As yet,' UCS has received no formal response from the Commission with respect to this request, although the deadline has passed by nearly two months.
We are at a loss to understand this violation of the Act since all of these documents are clearly subject to disc-losure because they involve contact between Commissioner Roberts or-his staff and a party outside-the agency.
We are deeply concerned at this F
failure since we believe a full response to this request to be l
necessary for the public to be able to judge the integrity of the TMI-1 restart decision.
In light of the continuing violation of the FOIA deadline, we consider the Commission to have effectively denied this request.
Accordingly, we appeal that denial to you in the hope i
that you will assure a prompt response.
Thank you.
I look forward to receiving your response within 20 working days.
I would also be glad to discuss this appeal with you.
My telephone number is 833-9070.
Sincerely, WWE William vordan, III WSJ/cpk t
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UNITED STATES f
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'h NUCLEAR REGULATORY ~ COMMISSIONU e
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SEP 2 91983 Docket No. 50-289 Ms. Michelle Adato Union of Concerned Scientists 1346 Connecticut Avenue, NW Suite 1101 IN RESPONSE REFER Washington, DC 20036 TO F01A-83-479
Dear Ms. Adato:
This is an additional response to your letter dated August 16, 1983 in which you requested, pursuant to the Freedom of Information Act, four categories of records.
2 Comission Paper, SECY-83-472, is being withheld in its entirety.
This document contains (1) a four-page November 30, 1982 memorandum to the Comissioners from John E. Zerbe, Director, Office of Policy Evaluation (OPE) and Martin G. Malsch, Deputy Director, Office of the General Counsel (OGC)
Subject:
Draft Order for TMI-1 Restart Immediate Effectiveness Decision; (2) Enclosure 1, a copy of the Draft Order (26 pages); (3). List of Hardware to be Installed or Modified Prior to Restart (1 page); and (4) Enclosure 3, Sumary of Gilinsky Office Items (3 pages).
The factual content in this Comission Paper is already available in~the public record in the THI Docket File under TMI-1 Restart Proceeding -
Category G. The release of the factual portions of the withheld information would reveal a predecisional evaluation of facts in the restart proceeding.
Therefore, the document does not contain any reasonably segregable factual portions.
The document contains the opinions, advice, and recommendations of the Director of OPE and the General Counsel to the Comissioners concerning the Comission's imediate effectiveness decision in the restart proceeding. It is, therefore, being withheld from public disclosure pursuant to Exemption 5 of the Freedom of Information Act (5 U.S.C. 552(b)(5)) and 10 CFR 9.5(a)(5) of the Comission's regulations.
Release of the document would tend to inhibit the open and frank exchange of ideas essential to the deliberative process.
For these reasons the document is being withheld in its entirety.
Identified as being subject to Item 2 of your request are four draft versions (28 pages) of Section 3 of the Appendix to the draf.t order.
Two phrases from each draft are being withheld from public disclosure because premature disclosure of proposed decisions before they are actually adopted would tend to inhibit the open and frank exchange of ideas essential to the deliberative process and to protect against public confusion by the disclosure of reasons and rationales that were not, in fact, the actual reascns' for the agency's actions.
These portions
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Ms. Michelle Adato are being withheld pursuant to Exemption 5 of the Freedom of Information Act (5 U.S.C. 552(b)(5)) and 10 CFR 9.5(a)(5) of the Commission's regulations. The releasable portions are being placed in the NRC Public Document Room (PDR) located at 1717 H Street, NW,' Washington, DC.
Pursuant to 10 CFR 9.15 of the Commission's regulations,.it has been determined that the information withheld is exempt from production or disclosure and that its production or disclosure is contrary to the public interest.
The person responsible for this denial is Mr. James A.
Fitzgerald, Assistant General Counsel.
This denial ray be appealed to the-Commission within 30 days from the receipt of this letter.
Any such appeal must'be in writing,' addressed to the Secretary of the Connission, U.S. Nuclear Regulatory Commission, Washington, DC 20555, and should. clearly state on the envelope and in the letter that it is an " Appeal from.an Initial FOIA Decision."
The NRC has not completed its review of-the remaining documents subject to your request.
We will respond as soon as that review is completed.
Sincerely,
. M. Felton, Director Division of Rules and Records Office of Administration i
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NOV 1 ISS3 I-t tet No. 50-289 Ms. Michelle Adato Union of Concerned Scientists 1346 Connecticut Avenue, NW IN RESPONSE REFER Suite 1101 TO FOIA-83-479 Washington, DC 20036
Dear Ms. Adato:
16, 1983 in which This is in final response to your letter dated Augustyou re of records.
The documents listed on Appendix A are being placed
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With regard to item 4 of your request, che NRC has located no documents.
This completes action on your request.
Sincerely, I(spedTI.E.Fennn J. M. Felton, Director Division of Rules and Records Office of Administration
Enclosures:
As stated DISTRIBUTION DRR Rdg DRR Subj PGNorry FCSho ker sa h DHGrims 16y v y }[
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OFFICIAL RECORD COPY
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10/19/82 Mer[o to W. J. Dircks from S. J. Chilk; SECY-82-384 -
7 THI, Unit 1. NUREG-0787 ITEMS STATUS 2.
1/5/83 Memo to W. J. Dircks from S. J. Chilk; SECY-82-384A -
TM1, Unit 1, NUREG-0737 ITEMS STATUS 3.
12/6/82 Policy Issue - SECY-82-384A 4.
8/16/83 Policy Issue - SECY-82-340 L
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UNION OF CONCERNED s
SCIENTISTS me c_,ima,_. xx.. s.
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. < o:> :,64soo August 16, lee 3 isio o P. les a a e ords FRE.EDCW OF INFORMATC Cffice of Administration
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ACI REQUEST U.S. l'uclear Regulatory Cc=ission f,(
f hM -j73 Usshington, D.C.
20555 W /~/}-f LZ Dear Mr.
iton:
re Pursuant to the Freedcrn of Information Act, pfehse make available for public review at the Cc:nission's Public Ibetnent Roc i af 1717 H Street, Washington D.C., a copy of the following:
1.
SECY-S2-4F3, entitled "Tr 1-1 Restart Certification status and NUREG-0737 Items status Update",12/9/F2 2.
All other docunents, including but not limited to reports, SECY papers, memoranda, e.nalyses, correspondence oe ween teneral hablic trilities and ERC, minutes from meetings, etc., that contain information on the status of
- 7. I-1 compliance with NUREG-0660 and 1:UREG-0737 ( Action Plan) ite.s.
Please include all those prior to and since SECY-E2 483 3
All records of correspondence between the Co xnissioners, NRC staff, and General Public Utilities, in which exemptions from and extensions for completion of I!UREG-0660 and NUREG-0737 items vere requested, granted, or denied.
Specifically included in this request are all letters,.
internal staff memoranda, telephone lo;;s and minutes of meetinzs concernin;; this topic.
4 All records of correspondence between Co: nissioner Roberts (or his staff) and Ceneral Public U:ilities, during the period cf April through August of 19?.3 specifically included in this request are letters, memeranda, telephone logs and minutes of meetings.
Should there be any questions regarding this recuest, p3 case do not hesitate to contact me at LCS's Washington, D.C., office at 296-5600.
Your cooperation in respondinr, to this request is appreciated.,
Sincerely, YbW Michelle Adato I.e31slative Research Assistant L: