ML20057B801

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Partially Withheld Commission Paper Re FOIA Appeal 83-A-35C on Hartman Correspondence
ML20057B801
Person / Time
Issue date: 12/09/1983
From: Fitzgerald J
NRC OFFICE OF THE GENERAL COUNSEL (OGC)
To:
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ML20049A457 List: ... further results
References
FOIA-92-436 SECY-83-502, NUDOCS 9309240022
Download: ML20057B801 (16)
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SECY-d3-502 l

.~4 0e."6er 9, 1983_

POLICY ISSUE (Notation Vote)

The Con:nissioners

'or:

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James A.

Fitzgerald 3

rrcm:

Assistant General Counsel P

FOIA APPEAL 83-A-35C PIGARDING HARTMAN Sebject:

CORRESPONDENCE i

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y, b. f To recommend 3i

Purpose:

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1983, Mr. Harry Voigt, counsel

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On September 19, in the Discussic.:

for the individuals subpoenaed by the NRC Hartman investigation, requested a copy of the a

i 1983 letter from the Diractor, OIA, to Assistant Attorney General Jensen regarding the

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May 31, Hartman raatter and any related correspondence.

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he NRC responded to that recuest on November 7 f'

1983.

Mr. Voigt appeals the withholding in its entirety of a July 28, 1983 memorandim from the

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Director, OIA, to the General C unsel listing of

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all the contacts between the Departr'ent j

Justic.

( DO.' ). 2d !:RC concerning the !!Jtr;. an matter, and the handwritter notes c: the Dir:ctor, CIA, on a r oposed response t o a q w s '. i - 1 rum I

3rc isman Uda 1.y J

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handwr.tten notes by l

Mr. Voigt aJss appeals the withhclding of 1

i rosponsc to Mr. Vo29t Chairman Palladino ecause the Novc.berhandwritten notes oy Cha2:.an Palladino, as OIA, were being w2tnheld.

Ch,s t re:n t) incorr.ct1; stated that well a-those by the Director, l

document, a Palladinc's notes..re cc tained on a differont r.emorandum ' rom the General Counsel to Chairmar. Pollodan<>

recom:.ending that the NRC and nOJ e..carr. up<sn a r** view or re: rrol IFootnote Continued]

I C

CONTACT:

Rick Levi, CGC 4-1465

.aformation in this record was de:eted in accordance with the Freedom cf inbrmatica nct. Exemptions f

Fol4-9,2 - VJf; 9309240022 930428 F

PDR FOIA F

.... 2IL.INSK92~,435 pyg

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2 Mr. Voigt in his appeal argues first that these documents would be available in discovery in United States v.

Blessing, M.D.

Pa. No.

i CV-63-1536,' and therefore that the Commission cannot withhold them under Exemption 5.

Mr. Voigt j

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to support this argunent states that the good faith purpose of the Commission in conducting the Hartman investigation is at issue in Blessing.

Second, Mr. Voigt maintatn/ that releasing the agency's correspondence to the Departnent of Justice without relersing tne ur.deri; ing docu-ments gives the appearance of a difference between the public position and the facts as shown in the underlying documentation.

Finally, Mr. Voigt asserts that the Commission's argument l

that release would not he in tne public interest "because it could impede future discussions ba*h within the NRC and between the NRC and DOJ" was rejected by the courts.

Analysis A*

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~iis' have done so in the attacnec markup.

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We believe c

J ge 36'~not believe Re cor...end a tion :

i ames A.

Fitzgerald Assistant General Counsel Attachments:

1.

Draft letter 2.

Mark-up of with' eld documents 3.

FOIA appeal i

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in this regard that most of the second chronology was We note quoted verbatim in the May 31, 1983 letter from the Director, OIA, to Mr. Jensen, which has been released.

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_.o Commissioners' comments or consent should be provided d.rectly to the Office of tr.e Secretary by c.o.b.

Friday, recember 22, t

1983.

t Commission Staff Office comments, if any, should.be submitted l

to the Commissioners NLT Friday, December _16, 1993, with an l

If.the information copy to the Office cf the 5e:rctary.

it requ;res

tienal t:me

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paper is of such a nature that the Ccr.missioners and the for analytical review and comment, should be apprised cf when comments may be expected.

Secretariat

'h DISTRIBUTION:

Commissioners OGC OPE OI OIA EDO-SECY

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i The following chronology deals sith some of the events, meetings and conse -

J 21,1950, 2nd 'tay 25,1960, end L

setions which took pla.e between Ma ch tire fra v addresses the recent assertion by 00J that in the Ma ch/Apr11/1980 Nr.C was cot recuestec to st:p all p'.ases of its Hartman insestigatirn bat-This rath2r was only asked to curb its investigative effurts senewhat.

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chrcnology is based on memcry, a review of records, 'and oiscussion witn Messrs. Stello, Sinclair and Fcrtuna.

t Event Date Norran Moseley IE, called me late in the day and ased if March 21, 1980 OIA would assist IE in an investicatier. cf allecatiens~

race to a New York TV station (I believe WOR), by'

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Harvid Hartman, a former TMI control Room Ocerator (CRO).

Mr. Hartman alleged that reactor ieak rate calculaticns b.ad been routinely falsified by himself and other CR0s l

prior to the accident.

I agreed to assist IE.and attigned

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l Mr. Strciair OIA Investigator John Sinclair to the tase.

along with staff from IE Region I subsecuently located and e

interviewee Mr. Hartman on March 22.

ist Week of April Mr. Sinclair and OIA Irvestigator Carlos Yane: along witr technical and investigative staff from IE Region I continue 1980 the investigation.

1st Week of April Telephone conversations between 01 A and D0J - most calls prcbably between Juliar Greenspun, General Litigatien ar.d 1980 Legal Advice Section, DOJ, end myself and/or Roger fortune

- dealing with the genera, nature of the Hartman rat'.er.

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Meeting at IE Headquarters, East-West Towers, j

April 2-3, 1980 attended by Messrs. Cummings, Stelle, Fortuna, Moseley anc 1

Lieberman (April 2) 6nd attended by Messrs. Cummings.

Stello, Moseley anc DeYoung ( April 3). -These meetir;-

j continued the discussion of the Hart.an allegations.

k Meeting at IE Headouarters, East West Towers, attendac b;.

April 8, 1980

-Mestys. Cunmings, Fortuna 2nd 51n: lair r-01 A; Hessrs. Stello, DeYoung and Moseley, IE; Messrs.- r.e e arc Lainas. NRR; ELD (probably Jim Murray but perhaps Jim Lieberren) and 00J (cefinitely Greenspun and pt i

Frank Bowman).

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p-L 5even re20*or 00erato."s/seniCr re!Ctor Crer2;ory

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'P.te"ViewEO Dv %., 19Vis*,102tive teg*1 s-R5 sever, bef or,e 2Cdi!1or.c ' 1DitrViews CDuiC De Conducted the prosperthe interviewees esclinec ir.terview ur.less NRC issued them a subpoen! testificandum.

Mr. Greenspun was advised by'$e, via telech:ne, of the" I : --i H, HF 0 refusel of several witnesses te be interviewed without the issuance of a subpoeni and of NRC's ir.ter, tion to AJthorize the is5uence of subpoenas for these indivicuels.

o Me -ing at DC attendet by Messrs. Currings, Stello and April 14, 19E0 Sh.

000 representatives Mr. 1ippe, his deputy Jim 'e.,iolds and Mr. Greenspun.

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Telephone ccnversations between myself, Mr. Lippe and.

i Mr. Mark Richard, Deputy Assistant Attorney-General',

i April 15/22, 1980 Criminal Divisien, D3J. re M + 4 ctus.gDB.i'x AH-j sion. j f

April 2^,

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_-Meeting at IE Headquarters attended by Messrs. Cumings,

-?ril 24, 19EC Stello, Case, L*.inas, Scinto and Messrs. Watson and 1.t this meeting Department attorneys again Bocan, DOJ.

emphasized their desire that NRC ' halt its investigation This meeting also tr.ade arrangements whereby NRC provided the 00J with infomatien which it had generated in con-nection with the investigation and sone discussion also took place with regard to assigning an NRC technical expert to D0J for the purpose cf assisting DOJ with the _

technical aspects of the case.)

Week of April 28, Meeting at DOJ between Mr. Cumings and Department The details of this naeting are not rec _elle L 1980 ytfernevs.

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Cemission Memorendum and Order -ae TW 6enies motion to May 25, 19EC-This order by the Ocmiissico clearly quash IE subpoenas.

identifies and acknowledoes-that NEC's investigation of the Hart 2 nan allegations was halted in April 1980.

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The follcwing chronology deals with some of the events, meetings and conver-

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sations wnich took place between Octcber 13, 1961, and June 28,- 1983, and addresses the recent assertion by DOJ to the effect that in October 1981, e

F. Cunr.ings was acvised by DOJ that hRC was f ree to restart its investigatien I

This chronolo;y is based on mencry, review of into the Hartr.an allegations.

recores anc discussicn with Messrs. Stelic arc Hayes.

i Event h ie Peeting at DOJ attended by Messrs. Currings and Stello and Ocicter 13, 195:

This meeting Messrs. Richard, Lippe and Reynolds, DOJ.

was initiated by me to determine the status of the Hertr.ar matter prior to the TMI restart hearir,gs.

Pe. 5tello :.d I were informed as follows: '

In DOJ's opinion the grand jury process had uncovered ne new substantive inforration eser ard above that which the NRC had found in its preliminary investi-

.j gation; The D0J was net aware of any evidence presented to the grand jury which wculd indicate any new public health and safety issues not already known to the NRC by virtue of its preliminary investigation; Departcent attorneys expected a decision would be mace by Ncvember 1,1981, on whether to cor.tinue the DOJ investigation. They further expressed the belief thet by this tir.e most, if not all, of the substar-tive investigation would be cor-leted particularly with respect to grand jury witnesses and NRC cculd then proceed with its investigaticn. However, they said they would cor. tact U.S Attcrney Carlton O' Mall 6y, Middle District of Pennsylvania' to verify the statu! of the investigation end tc obtain his concurrence with respect to the NRC reinstituting its investigation; A DOJ decision not to pursue the investigation any further should nc, be -interpreted by *RC to meer. that the DCJ investigation found no evidence of

- wrcrgeoing, If D0J decided not to pursue this r.atter then, at NRC's recuest, DOJ would be villing to petition the for release of grand jury testimony to NFC.

court DCJ was pessiristic trat the courts would ageee te ini! release; and D0J regrettec they hac net been able to bring this ratter to a speedy resoluticr but were r.ot apologetic

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for this situation 35 they #elt substantial tire ar.c manpower had been ce, ted to the case.

Attachr.ent B

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13, 1981 reeting,, office called Department attern'eys Following the October on a regular ba' sis, however, no final decision was forthcotir.g.-

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Meetin; at Harrisburg, Pennsylvar.ia, between March 1, 1983 Messrs. Curr.ings and the Assistant U.S. Attorney p

James West.

At this meeting I outlined NEC's interest in the ovt eal'.

Hartman allegations and told Mr. West that NEC was cDn.

Mr. 'nes t was sidering reinstituting its investigatien.

very responsive to NRC's interest in this matter anc

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advised te 'tha't his office and tne Federal Bureau of i

Investigation were giving this matte priority attention L

and that he hoped the case night te resolved by Jure or Mr. West requested that, if possible,'h;C net July 1983.

L reinstitute its insestigation or tale any cr. force er*

action in this matter until his c" ice had ar. opportunity to resolve the matter.

Meeting at Harrisburg, Pennsylva-ia, betweer June 28, 1983 Messrs. Hayes, Ward and Christccher, Cl, anc Assis te-:

U.S. Attorney's West and Lied, Middle District o' Penr.sylvania. The purpcse of this meeting was te edvise i

West of the NRC's intenJt on to restart its investication

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print ;c' Again, even if one completely discounts the statener.ts c' all theindi

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cant fact which does not support 00J's contention:

Mr. West's March 1,1983, reouest that NRC not reinstitute its insetti-gation or take any enforcement action in :ne Hartman r.atter until t's ccr.s tie *i office had an oppcrtunity to resolve the natter is tetcily it te+ -

with the position taken by D0,1 throughout this Arvesti9+*.1or.,

w r.,; r. t i t<

ur.reaser.able that the responsible U.S. Attcrney's Oic t c'

>(*ne, misinformed as to DOJ's position with reeare te toe cuest teo NRC was f ree to reinstitute its investigation..

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November 21, 1983 4l r....c.c..ecc....

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APPEAL OF INiilAL FO!A DECISION t

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i Mr. Samuel J. Chilk

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} } ~ h b ~~~ $ b Secretary U.S. Nuclear Regu3atory Commission Washington, D.C.

20555 3

Re:

Appeal from an Initial FOIA Decision --

FOIA Recuest No.83-582 L ;

Dear Mr. Chilk:

i This is an appeal, pursuant to 10 C.F.R.

59. ~ 5, from the Commission's partial denial of my FOIA Request, which the Commission has denominated FOIA-83-582.

The i,t Commission withheld, in its entirety, Document 1,

which

. t is a July 28, 1983 memorandum from James J.

Cummings to 5

Herzel Plaine concerning the Hartman allegations.

This

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cccument was withheld because it is allegedly exempt P !

under Exemption 5 of FOIA (5 U.S.C.

5552 (b) (5) ) and 10 l

C.F.R.

5 9. 5 (a) (5).

These authorities provide no support.

i for withholding the Cummings to Plaine memorandum.

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Exemption. 5 dces not permit the withholding of i

cocunents that would be. available to a

party in litigation with the Commission.

As you may be aware, t :

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the Commission has caused litigation to be commenced aga2nst 26 clients of this firm in a proceeding to seek enforcement of NRC subpcenas served upon them.

United

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States v.

Blessing, et al.,

No.

CV83-1536 (M.D.

Pa).

vne cf the issues in that litigation is whether the NRC was entitled to investigate. the -Hartnan allegations after Octcber 1981.

If the failure to investigate the r

Ita: t r.a n allegations between October 1981 and May 1963 was attrihetable in whole cr in part to the actions of l

I conrission employees, that fact is relevant to the

. I I-l e s r i n c litigation.

The Cur -ing s to Plaine nemorandun

8, cl~2cu81y, a mcre reliable source of :niormaticn en i

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tir. Samuel J. Chih g

  • November 23, 1983

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Page 2 that question than argument by counsel with respect to r

the same question.

Accordingly, disclosure of that memorandum should be required in the Blessing litigation, and its relevance therein defeats a claim that it may be withheld under FOIA.

The Commission also withheld in its entirety Document 2.

The same analysis as that which applies to Document 1 applies to Document 2, because Mr. Cummings' and Chairman Palladino's exchange concerns the cause of the 1981-83 delay.

The Commission should understand that its determination to seek enforcement of its subpoenas in the Blessing litigation puts into issue its prior understanding of its inability to investigate the Hartman allegations.

One of the defenses that we have interposed to the Government's Petition is its good faith in the conduct of the Hartman investigation to j

date.

Thus, the Commission should have an interest in clearing the air on the matters to which Documents 1 and 2 pertain.

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I ask that the Comission consider the interrelationship of this appeal with the position of i

the United States in the Blessing litigation, and also to consider the fact that its release of Mr. Cummings' May 27, 1983 letter to Mr. Jensen without release of.the underlying documents gives the appearance of a

difference between its public position and the facts as shown in the underlying documentation.

In any event, Mr. Felton claimed that the " release of

[ Document 1] would not be in the public interest because it could impede future discussions both within the NRC and between the NRC and DOJ."

This argument was rejected in Federal Open Market Comunittee v.

Harrill, 443 0.8. 340, 353-54 (1979), wherein the Court stated:

"Such an interpretation of F.xemption 5 would appear to allow an agency to withhold any memoranda, even those that contain final opinions and statements of policy, whenever the agency concluded that disclosure would not promote the

'afficiency' of its operations or otherwise would not be in the 'public interest'.

This would leave little, if

anything, to POIA's requirement of prompt disclosure, and would run counter to Congress' repeated rejection of any 1
r November 21,.-1983 1

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    • Page 3 interpretatien of the FCIA which would i

alicw the agency to withhold infcrmation on the basis of scme vauge

'public interest' standard."

The Court concluded in Federal Open Market Co:rrittee v.

f Merrill that the relevant consideration under Exemption 5 was the question whether the documents at issue therein would not be available to a

litigant in discovery with the agency.

Id.

at 354-60.

The Court j!

re]ected the argument that "every privilege known to civil discovery" was incorporated in Exemption 5.

Id.

at 354-55.

I Under this

analysis, the question becomes what will be discoverable in United States v.

Blessing, or in other litigation with the agency.

Since the bona f_ide s of the NRC are at issue in Blessing, see United States v.

Powell, 379 U.S.

48 (1964); ICC v.

Gould, 629 g;

F.2d 847, 855 (3rd Cir. 1980); United States v. Garden jl State National

Bank, 607 F.2d 61, 67-68 (3rd Cir.

1979),

the Commission, which commenced the Blessing litigation, will be required to demonstrate its " good faith" to be entitled to enforcement of the subpoenas at issue therein.

It follows that the release of Document 1 is required under FOIA.

A similar analysis will lead the Commission to conclude that Document 2 must be disclosed as well.

While it does contain the " advice and opinions of the Director, FOIA, and Chairman Palladino on the [NRC's) proposed response" to Congressman Udall, Document 2 l:

l relates to the issue cf the Commission's good faith.

The reasons for the lack of activity by the NRC with l

respect to the Hartman matter between October 1981 and May 1983 have never been satisfactorily explained.

Indeed, Chairman Palladino agreed with this conclusion in his July 14, 1983 letter to Congressman Udall, wherein he stated:

"There is a conflict between the version of the facts surrounding the Commission's decision not to proceed w th its investigation of the allegations of leak rate falsification

'i that is contained in Mr. Jensen's letter and the version of the facts that is contained i r.

Mr. Cu:. ming s '

letter.

At t h:s point the version of the facts ccntained in Mr.

Cunnings' letter j

re;. resents h2 s v2ews and not necessarily the views of the Conm:ssion.

The j

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November 21, 1983

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  • 9 differences between the two versions are significant, and we intend to make an effort to resolve them.

We will inform you of the success of our efforts."

For the foregoing reasons, I request that the Commission conclude that Exemption 5 does not justify the failure to release Documents 1 and 2.

t.1 i

Very truly yours, k

W-N i

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