ML20076N552

Appeals Denial of FOIA Request for Documents Re Interrogatories & ASLB Questions Concerning Facilities

ML20076N552
Person / Time
Site:	Perry
Issue date:	04/04/1983
From:	Hiatt S OHIO CITIZENS FOR RESPONSIBLE ENERGY
To:	Dircks W NRC OFFICE OF THE EXECUTIVE DIRECTOR FOR OPERATIONS (EDO)
References
FOIA-83-82, FOIA-83-A-7 NUDOCS 8307220071
Download: ML20076N552 (3)

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' APPEAL OF INITIAL E01A DECISION h-A - 7 s (f3 -f Q )

h c,y g-/-fJ April 4, 1983 Mr. William J. Dircks Executive Director for Operations ,

U.S. Nuclear stegulatory Commission Washington, D.C. 20555 APPEAL FROM AN INITIAL FOIA DECISION

Dear Mr. Dircks:

. By this letter I am appealing the initial decision made by J.M.

Felton, Director, Division of hules and Records in response to my Freedom of information Act request dated Feoruary 14, 1983 (FOIA-83-82), copy attached. This initial decision denies the disclosure

-of the documents 11 sted in Appendix A in their entirety oecause they are purportedly exempt under 5 USC 552(b)(5). The persons responsible for this determination are Mr. Felton und Mr. darold R. Denton.

5 USC 552(b)(5) exempts from disc.Losure under the FOIA " inter-agency or intra-agency memorandums or letters which would not ce available by law to a party other than an agency in litigation with the agency." This provision has been interpreted by the pourts to be f&r more narrow than an initial reading would indicatek See, e.g.,

Stokes v flodgson, 347 :F Supp 1371 (1972) . ' A1.so~, :the burdpn of proof is upon the agency relying on Exemption 5 of FOIA. Taccor Sales Clearing, Inc. v'Denartment of Treasurv-, 471 F Supp 436 (1979).

Claims of exemption can only be upheld if they are appropriately tdvanced and supported by tne agency. Freeman v selinson,3 405 F2d 1326 (1968)..

Only certain types of memorandums are exempt under. 5 USC 1 552(b)( 5) .-

Those containing purely factual material are not exempt; see Environ-mental Protection Agency v Mink, 410 US 73 (1973); General Services Administration v Benson, 415 F2d 878 (1969); Bristol-Myers Co. v w a m mrade en=a e nn, 424 F2d 935 (1970); Conwm m Uni on d United States v Veterans Administration, 310 F Supp 796 (1969 ) .

Furthermore, to be exempt from disclosure, documents; must be part of the decision-making process; i.e., they must be both pre-decisional and deliberative in nature. Falcone v Internallhevenue Service, 479 F Supp 985 (1979). "Predecisional" means tnit t tpe document must actually be antecedant-to the adoption of agency policy, and " deliberative" means that it must be related to the process by which policies are formulated. Jordan v Denartment of Justice, 591 F2d '/53 (1978 ) . "Predecisional" memorundums must not be bonfused with post-decisional concunications, which serve to explain decisions already mace. Bristol-Myers, suura. Also, in order to oc truly classified as predecisiona!., tne cocuments snould refluct. personal opinions of an individ tai writer in the agency rather than the policy

'of the agency as a whole . Cous.tal 9tates Gas Corp. v Deoartment of Energy, 617 F2d 854 (1980). Further, documents drafted prior to a decision, but tnen adopted as an agency's final opinion, .are not deliberative and are not urotected from disclosure. Falcone, suora.

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• / A' The phrase "available by law to a party other than an agency -

, / ., 11n litigation with the agency" has been constru'ed to mea'n any hypo-

'j thetical pa.rty in some type of litigation with the agency. Anchorage Elde. Trades Council v'Departsent of Housing and Urban Development,

. 384 F Supp 1236 (1974); Cpnsumers Union, suora. The "la.w" referred to

. means the discovery provisions of the Federal Rules of Civil Procedure (not the aEency's rules of practice). Shakespeare Co. v' United states,

.389 F2d 772 (1968). Of course, FRCP 26(o) is interpreted oroudly in

'the interest of full' discovery. Hicknan v Taylcr, 329 US 495 (1947).

- (The most .notaule exemption in Rule 26(b) is the work-product doctrine.)

Moreover, when an agency nes. adopted material in an otherwise exempt document as the basis of e non-exempt decision, the adopted material loses its immune status, since such exemption is statutory exception to other sections of 5 USC 5S2 (e.g., 5 USC 552(a)(2)) which require disclosure. United States v J.B. Willinmn On. 402 F Supp, 796 (1975).

Finally, the F0IA was intended to' benefit the puolic generally,

. . and it is the effect on the puolic that must be weighed in ordering disclosure. Consumers Union, ~suurn. It has even.been held that docu-ments normally exempt under 5 USC 552(b)(5) should be released unless it is - determined that such disclosure will result. in demonstrable harm to the public intere.st. Shlakman, 64 FCC2d 947 (1977). The ultimate-

, purpose of 5 USC 552.(b)(5) is to provent injury to the quality of the agency decision-making process. Natural Resource's Def ens e Council, 2 DOE 80,128.

Given this legal onckground, one must compare the NHC's initial decision regarding F0IA-83-82 with the law. In order to justify the denial of the documents in Appendix A, the NHC must make a positivo showing that: the material withneld is not merely factual; it is both predecisional and deliberative; it would not be availaole tnrough l discovery pursum t to PhCP 26(b) to any party in litigation with tho NHC; and, it is not in the public interest to disclose the material, or its disclosure would harm the NHC's decision-making process.

The undersigned maintains that these criteria have not been met by th; NRC and cannot be met, and, therefore, the disclosure of the documents is mandated.

The draft interrogatory responses in question fall directly into the category defined by Falcone, supra, i.e., documents drafted prior to an agency's final policy (wnicn could be interpreted here l as tne Staff's final answers to OChh's interrogatories) but then

! adopted as that final policy. Such documents are not exempt and must be produced. Of course, it cannot be known prior to disclosure to what degree the draft responses were adopted in tne final unswers, out this is precisely tne reason fcr requesting the draft responses.

An understanding of the peculiar circumstances of the Ferry OL l

case is also necessary for a proper decision in this appeal. Tne

! NRC Staff attorney has continuously tried to frustrate the litigation of certain issues in tne Perry proceeding by arbitrarily oojecting i to discovery on the grounds tnat tne interrogatories posed by inter-venors were supposedly not rulevant to the particular issues in question.

The ASLB order (LbP , 16 Nxc , December 23, 1982) compelling the Staff to answer the~1nterrogatories made tne following comments

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relative to tnt. Staff's arguments:

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We reject staff's attempt to define'"necessary" to' prohibit OCRE from obtaining information that it " suspects" or believes may be helpful to it. OCHE may not be required to know what the staff's views are before it ootains them. To erect that require-ment would make a mockery of the discovery process.

This proceeding is not a game . . . . staff evasiveness in re-

- sponding to interrogatories is destructive of public confidence.

The January 12, 1983 memorandum (attached to FOIA-83-82) illustrates the degree to which the Staff has been playing evasive games. First, staff members were apparently preparing responses to the interrogatories while the Staff attorney was vigorously objecting to tne Staff's naving to answer same. Leaving the obvious question of ethics aside, it is clear tnat the Staff is guilty of delaying the proceeding, an offense discussed in the context of the imposition of sanctions in CLI-81-8, 13 NHC 452, 454 (1981). ~

Secondly, even after being told oy the ASLB to mend its erring ways, the Staff continued its obfuscatory. behavior by holding meetings to provide guidance en the scope and form of the " expected" and "ap-proved" starr respo;nses. Needless to say, such language strongly subgesta censorship of the answers.

Since the Staff did not o'o ey the intent of the Bourd's order, the disclosure of the draft responses is eminently in the public interest. The disclosure of these documents will enhance and not injure the quality of the NHC's decision-making process by providing a full record in the Perry OL proceeding.

Furthermore, these draft responses would be available to a party.

in litigation with the NRC in a court of law. Since the FRCP discovery rules, unlike the NRC's rules of pra ctice, do not give the Staff a j place to hide from public inquiry, -it is likely that the draft responses l sougnt herein would hdve long ago been provided as the actual responses,

[ without censorship.

1 Producing the documents requested by FOIA-93-82, aside from being in accordance with the laws of the United States, would enhance the NRC's credioility and help restore tne agency to its role as protector of the public interest. After all, wny ou secretive if there is nothing to nide? The undersigned sincerely prays that the disclosure of the requested documents is imminent.

i Sincerely,

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4 cvC . , t e L_.

Susan L. Hiatt

, OCHE Hepre sentative l Oz75 Munson nd.

l Mentor, OH 44060 (216) 265-3158 i .

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