ML20077A056

Appeals Denial of FOIA Request for Transcript of Commission 830105 Meeting Re Exemption Request for Crbr Transcript

ML20077A056
Person / Time
Site:	Clinch River
Issue date:	03/21/1983
From:	Greenberg E GALLOWAY & GREENBERG, National Resources Defense Council, Sierra Club
To:	NRC OFFICE OF THE SECRETARY (SECY)
References
FOIA-83-46, FOIA-83-A-6 NUDOCS 8307220126
Download: ML20077A056 (8)

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March 21, 1983 APPEAL OF INITIAL FOIA DECisl0N Secretary of the Commission

. . b-b g ' b C. ( fd -C/4/i United States Nuclear Regulatory Commission Washington, D.C. 20555

/[p t, Q J g ,,,g 3 APPEAL FROM INITIAL FOIA DECISION /FOIA-83-46

Dear Mr. Secretary:

This is an appeal pursuant to the Freedom of Information Act, as amended (5 U.S.C. Section 552) ("FOIA"),

and the Commission's implementing regulations, 10 CFR Sections 9.3 - 9.16.

On January 25, 1983, I wrote to the Commission'on behalf of the Natural Resources Defense Council, Inc. and the Sierra Club (" Petitioners"), and requested a copy of the

- transcript of that portion of the Commission's meeting of January 5, 1983, relating to the Commission's consideration of the exemption request under 10 CFR Section 50.12 for the Clinch River Breeder Reactor (the "CRBR") (Docket No'.

50-537). A copy of this request letter is attached'at Tab A.

Thereafter, on February 25, 1983, we received a letter (dated February 22) from Mr. J.M. Felton, Division of Rules and Records, Office of Administration of the' Commission, denying the request for such documents. A copy of Mr. Felton's i letter is attached at Tab B.

The basis specified for the 6enial of Petitioners' request was that " the transcript. . .is exempt in its entirety from- mandatory public disclosure under Exemption 10 of the Government in the Sunshine Act." The letter goes on l

i to state the " meeting focused on Commission adjudication related to ongoing litigation" and, accordingly, the transcript was "being withheld in its. entirety", in reliance upon Exemption 10 of the Government in the Sunshine Act, 5 U.S.C. Section 552b (c)(10) (the " Sunshine Act") and Exemption 3 of FOIA, 5 U.S.C. Section 552(b)(3).

3/23..To OGC to Prepare Response for Signature of SECY...Date due:

April 5..Cpys to: RF, EDO. . 83 1598 ab^V 8307220126 830321 PDR FOIA '

GREENBE83-A-6 PDR i

Secretary of the Commission .

Ma'rch 21, 1983 *

• Page two .

In accordance with' the Commission's regulations,10 CFR Section 9.11, and the terms of Mr. Felton's letter of February 22, Petitioners are now prosecuting this appeal. As set forth below, the transcript at issue on this appeal relates to Commission deliberations in a proceeding which heretofore the Commission had considered entirely in public

-session. Simply becaus,e it was revisiting the merits of the -

matter on remand from a court in no way can justify the closing of a meeting under the Sunshine Act. Accordingly, withholding the transcript is : unlawful and unwarranted and the decision against disclosure should be reve.rsed.

(a) Statement of Facts .

The proceeding leading to the Commission's meeting of January 5, 1983, was commenced in November, 1981, when the United States Department of Energy and its co-applicants, the Tennessee Valley Authority and Project Management Corporation (collectively, Applicants"), filed a request for an exemption from the Commission's licensing procedures under 10 CFR Section 50.12 to allow Applicants to commence site preparation activities for the CRBR prior to the issuabce of an LWA or a Construction Permit. At each stage of this proceeding, until this January, the Commission reached its procedural and substantive decisions in open me;etings.

Following the filing of the_ request, the Commission considered the procedural issues it raised on two occasions in open session, first on December 9, 1981, and then, following a public hearing on these iss.ues, on December 16, 1981. It did so even though the procedures to be adopted by the Commission were themselves at issue and had the potential

. for leading to litigation.

On December 24, 1981, the Commission issued a Memorandum and Order (CLI-81*-35), establishing procedures for considering the merits of Applicants' request. The Commission determined to consider the request, outside the context of the CRBR licensing , in an informal proceeding not subject to the Commission's rules of practice (10 CFR, Part ~

2, Subpart G). The Commission determinbd that no

. adjudicatory hearing need be. held and that it would proceed instead to consider the exemption request in a legisl'ative-type hearing process. At that time, the Commission did not consider it necessary to close any part of its deliberative process.

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Secretary of the Commission -

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. March 21, 1983

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. l When it came to considering the merits of Applicants' i exemption request the Commission reached its decisions in i public session. On March 1, and again on March 5, 1982, the l Commission met in open meetings to consider the' merits of the i recuest. On March 5, it voted publicly to deny the application. This decision was embodied in an Order issued March 16 (CLI-82-4).

Subsequently, Applicants, on May 14, 1982, filed a request for reconsideration. Again, the Commission met in open session (on May 17) to consider that request, dividing evenly on whether to reconsider and thus letting its prior ,

Order stand. See Order (CLI 82-8), dated May 18, 1982. i In July of 1982 there was yet a third round of consideration of Applicants' request. Applicants filed a new request on July 1, 1982. On July 9, 1982, the Commission met in open session and dete'rmined to set the request down for hearing, adopting the same informal procedures as it had adopted earlier. Order, dated July 9,.1982. Thereafter, following a legislative-type hearing on the merits, th,e Commission proceeded, in open session, to decision. On August 5, 1982, it voted 3-1 to approve the exemption request, and that decision was subsequently embodied in a

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Memorandum and Order. issued by the Commission on August '17, 1982 (CLI 82-23).

Petitioners on A'ugust 19, 1982, filed a Petition for Review with the United States Court of Appeals for the District of Columbia Circuit seeking review of the Commission's grant of the exemption request. On December 7, 1982, the Court of Appeals handed down a'6ecision remanding the matter to the Commission to reconsider whether there were

" exigent circumstances" warranting extraordinary licensing relief under 10 CFR Section 50.12 for the CRBR.

On December 10, the Commission issued an order establishing procedures for reconsideration. The Commission's December 10 order stated: .

The proceeding shall be an infor'nal proceeding

. conducted by the Commission. the parties will be given the opportunity to present views and argument ,

for consideration by the Commission itself. Moreover, we believe that the Court 's opinion does not require or even contemplate adjudicatory hearing on this issue.

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The Secretary of t.he Commission -

March 21, 1983 ~

Page four The Commission asked the parties to file supplen ental statements on " exigent circumstances." The Commission's.

procedural approach on remand, therefore, was no different than its earlier procedural approach to consideration of the merits - an " informal" proceeding only was to be held.

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When it met in December to consider the procedures on remand, the Commission for the first time determined that the merits of Applicants' exemption request should be considered in closed session. It voted on December 9 to close its discussion of _ the merits on remand on the grounds that "this discussion. . . is reasonably expected to involve information possibly related to Commission's strategy in litigation",

' citing Exemption 10 to the Sunshine Act. The General Counsel of the Commission also signed a certification that the meeting "may be closed to the public pursuant to 5 U.S.C.

Section 552b(c)(10) and 10 CFR Section 9.104(a)(10)."

The meeting of January 5, 1983 was in fact closed to the public. At that meeting, the Commission voted to reaffirm its earlier finding that a licensing exemptio.n pursuant to 10 CFR Section 50.12 was warranted. That decision was embodied in a Memorandum and Order (CLI-83-1) which was issued January 6, 1983. This FOIA request for the

- transcript of the January 5 meeting followed. : -

(b) Exemption 10 of the Sunshine Act Cannot.

Properly Be Applied to the Transcript of the Commission's Meeting of January 5, 1983 In his letter of February 22, 1983, denying Petitioners' FOIA request, Mr. Felton relied exclusively on Exemption 10 to the Sunshine Act to deny Petitioners access to the transcript. ~ Be state,d that the meeting in question

" focused on Commission adjudication relatec to ongoing litigation", and further explained that the "public exposure of such deliberations would be contrary to the well established principal [ sic) that the mental process of.the Commission are [ sic) not subject to probing." Exemption 10 to the Sunshine Act, however, is plainly inapplicable to the

, transcript in question. -

Exemption 10 to the Sunshine Act, 5 U.S.C. Section 552b(c)(10), exempts f rom the open meeting requirement of the Sunshine Act those meetings which o

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The Secretary of.the Commission ..

- March 21, 1983 '

f Page five

[S)pecifically concern that agency's issuance of a subper.2, or the agency's participation in a civil action or proceeding , an action in a foreign court or international tribunal, or an arbitration, or the ini tia tion , conduct or disposition by the agency cf a particular case of formal agency adjudication pursuant to - the procedures in section 554 of this title or otherwise involving a determination on the record after opportunity for hearing.

The Commission's implementing regulations, for their part, provide an exemption for those meeting which Specifically concern the Commission's issuance of a subpoena, or the Commission's participation in a civil action or proceeding or an action or proceeding before a state or federa1 administrative agency, an action in a foreign court or international tribunal, or an arbitration, or the initiation, conduct or disposition by the Commission of a particular case of formal I agency adjudication, pursuant to 5 U.S.C. 554 or otherwise involving a determination on the record after an opportunity for a hearing . pursuant to Part 2 or similar provisions.

10 CFR Section 9 104(a)(10).

l The history of the Sunshine Act leaves no doubt as to its intent to constrain an agency'.s ability to close its meetings to public scrutiny. It establishes a general presumption that meetings must be open. ~ H.R. Rep. No.94-880 (Part I), 94th Cong., 2d Sess., 3,8 (1976-) (the " House Report"); S. Rep.94-354, 94th Cong., 1st Sess. 19,20,33 l (1975) (the " Senate Report"). See Common Cause v. Nuclear Regulatory Commission, 674 F.2d 921, 928-929 (D.C.Cir.

1982)(" Common Cause").

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Indeed, the United States Court of l Appeals for the District of Columbia Circuit has stated that I the open meeting requirement of the Sunshine Act is

" sweeping, unqualified and mandatory", Pacific Legal Foundation v. Council on Environmental _ Quality, 63 6. F. 2d -

1259, 1265 (D.C.Cir. 1980), and has emphasized, " Exceptions to the Sunshine Act's general requirement of openness must be construed narrowly." Common Cause, 674 F.2d at 932; House .

Report at 2; Senate Report at 11 (agencies must " conduct i

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. March 21, 198' ~

Page six their deliberations in public to the greatest extent possible"). 1/

With respect to the " litigation" exemption, it is immediately apparent that the only possible ground for closing the meeting was that it involved "the agency's participation in a civil action or proceeding." 2/ Both the Senate and Bouse Reports confirm that this language should be narrowly construed. Indeed, both focus particularly on the need to protect discussions relating to decisions to institute a lawsuit, or refer a case to the Justice

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Department for prosecution, rather than on the need to

, protect all discussions which may incidentally touch on

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matters in litigation. See Bouse Report at 12213; Senate Report at 25-26. Both reports suggest, moreover, that only a discussion focused on strategy decisions in litigation, rather than the general substantive issues in dispute, would f alll within the exemption. Thus, the. Senate Report states that, when an agency is "only discussing...a legal point",

opening a meeting to the public may be. appropriate. Senate

' Report at 26. And commentors on the Sunshine Act have; repeatedly noted that this exemption is limited in scope, primarily related _ to agency decisionmaking .about whether and, if so, how to proceed in litigation. Note, The Federal

" Government in the Sunshine Act": A Public Access

' Compromise, 29 U. Fl. L. Rev. 881, 909-910 (1977); Note, Government in the Sunshine Act: Opening Federal Agency Meetings, 26 Am. U. L. Rev. 154, 190 (1976). Plainly, the January 5 meeting involved much more than decisions relating the prosecution of litigation and thus the exemption could not properly be invoked. ,

. 1/ Ouite apart f rom the inapplicability ~of Exemption 10, it should be noted the Sunshine Act mandates that a " discussion must be open where ,the publi.c interest so requires." House Report at 3. Given the importance of the CRBR project and the public controversy surrounding its licensing approval, it is hard to postulate a more appropriate case for the Commission to act'in public session. On this ground alone, the closure decision was in error. ,

2/ We scarcely need note that the " adj udication" in this case was emphatically not carried out under the terms of 5 U.S.C. Section 554, and it did not otherwise involve a determination on the record af ter an opportunity for hearing.

The other enumerated grounds for exemption are likewise inapplicable on their face. ,

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The Secretary of,the Commission . .

March 21, 1983 ,

Page seven Even if one were~to construe the Sunshine Act's tenth

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exemption to extend to any discussions bearing on litigation strategy, such an interpretation cannot be relied upon to shield conside. ration of the merits of a pending proceeding before the Commission .- It can only be considered ironic that in his denial letter Mr. Felton mer. cions the need to avoid "public disclosure" of the " mental process of the Commission", for it is precisely the purpose of the Sunshine Act to make that mental process subject to public view.

Common Cause, 674 F.2d at 929. As the D.C. Circuit stated,

" Congress deliberately chose to forego the claimed advantages of confidential discussions of agency heads at agency meetings." Id. See also Senate Report at 17 ("their

[ agencies'] deliberative process can be appropriately exposed to public scrutiny in order to give citizens an awareness of the process and rationale of decisionmaking").

The notion the the Sunshine Act's requirements can be avoided any time the Commission is considering a matter on e remand, or a matter which is subject to pending litiga. tion, is, in any event, nonsensical. In this proceeding, it was obvious at every stage of the Commission's deliberations through August, 1982, that. litigation was not only likely but almost certain if th.e Commission acted to grant Applicants' exemption request. At every stage, therefore, presumably considerations of litigation strategy were relevant, if not -

to the merits of the action, at least to the wording of the Commission's orders. Nonetheless, the Commission did not and could not close any of its meetings during that period. And the mere existence of pending litigation, and a remand for reconsideration, cannot reasonably distinguish one discussion

- on the merits (that of January 5) from earlier discussions on the merits. The merits of the exemption request, which must form the basis for .the Commission's decision, simply are not subject to any exemption under the Sunshine Act, regardless of when the discussion takes place.

Finally, even if there dere some need to discuss l litigation strategy at the Commission's meeting of January 5, and that discussion could have been hela in closed session,

. the Commission was not relieved of its obligation, in the -

first. instance, to try to bifurcate the meeting, limiting closed portions to the maximum extent possible, and, in the second instance, at least to release those portions of the transcript which relate to the merits and are reasonably segregable from deliberations. relating to litigation strategy. The Court of App.e'als for the District of Columbia Circuit has emphasized in the str.ongest terms the need to

The Secretary of the Commission-

• March 21, 1983 -

Page eight limit in camera decisionmaking. In Common Cause, the Court stated, Even if a portion of a... meeting may lawfully be closed because that part of the discussion is protected by a specific exemption, the Commission may -

not close the entire meeting. Congress declared that meetings should be open to the fullest extent possible. We therefore. reject the Commission's contention that the Sunshine Act does not require an agency to segregate exempt discussions into a closed portion of the meeting.

Common Cause, 674 F.2d at 936, n.46 (citations'omitted).

And, in Pan American World Airways v. CAB, 684 F.2d 31, 35-36 (D.C.Cir. 1982), the D.C. Circuit expressed "in no uncertain terms our condemnation"' of the Civil Aeronautics Board in its decision to close an entire meeting because of a belief that some exempt material would be discussed. Closing the entire .

January 5 meeting, and withholding the, entire transcript of th'a t ~ mee ting , including those portions of the transcript which relate to the merits, cannot be justified.

For all the reasons set forth above, Peditioners submit the requested transcript is not properly covered by exemptions (b)(3) of FOIA and 10 of the Sunshine Act, and 10 CFR Sections 9.5(a)(3) and 9.104(a)(10), and that you should -

overrule the decision to withhold the information.

If you choose instead to continue to withhold some or

. all of the material which was denied in our initial request to the commission, we ask that you provide a justification for the denial in accordance with 10 CFR Section 9.ll(c)(1).

As provided in FOIA and in the regulations of the Commission, 10 CFR Section 9.ll(b), we will expect to receive a reply to this administrative appeal letter within 20 wo'rking days. ,

Sincerely, O

Eldon V.C. Greenberg Counsel to Natural Reso .ces Defense Council, Inc.,/2nd

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the Sierra Club

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• 9 0 64 Bv Hand January 25, 1983 Patricia G. Norry Director Office of Administration U.S. Nuclear Regulatory Commission Washington, D.C. 20,555

. FREEDOM OF INFORMATION ACT AND SUNSHINE ACT REQUEST

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Dear Ms. Norry:

- Pursuant to the Freedom of Information Act, 5 U.S.C.

.Section 552~, as amended ("FOIA"), the Government in the Sunshine Act, 5 U.S.C. Section 552b, and .the Comission's regulations implementing such statutes, 10 C.F.R. Part 9, Subparts A and C, I am writing on behalf of the Natural Resources Defense Council, Inc., and the Sierra Club to request a copy of the transcript of that portion of the

. Commission's meeting of January 5, 1983, relating to the Cc= mission's consideration of the exemption request under 10 C.F.R. Section 50.1.2 for the Clinch River Breeder Reactor (Docket No. 50-537).. .

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Because of the general public . interest in the, Clinch River Breeder Reactor, I believ'e that furnishing the .

transcript requested "can be considered, as primarily benefiting'the general public", within the meaning of 10

,C.F.R. See: tion 9.14a(b) .' Consequentif, I believe that any applicable fees for reproduction should be reduced or vaived as permitted under FOZA and the Commission's implementing ,

regulations.. However, if you determine otherwise, I. advise '

you now that I agree to pay the reasonable costs for copying

.] such transcrint. -

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) ** January 25, 1983 Page two If you determine some or all of the transcript is exempt from release, I would appreciate you stating which exceptions you believe cover the material you are not releasing. Further, if you determine that some portions of the transcript are exer.pt, I ask that you make available the remainder thereof, to the extent that those portions determined to be exempt are " reasonably segregable" as provided in FOIA and the Sunshine Act.

As 'provided for in FOIA and in 10 C.F.'R. Section 9.9, I will expect to receive a reply within ten (10) working days. If you have any cuestions concerning this recuest, please contact me by telephone to expedite consideration of .

this matter.

i Very truly yours, N

Eldon V.C' Greenberg .

Counsel to the Natural Resources Defense Council; Inc. and the 4

Sierra Club cc: Sheldon Trubatch George Edgar Leon Silverstrom Lewis E. Wallace ' '

James Cotham .

William E. Lantrip William 3. Hubbard -

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1. February 22, 1983 .

Eldon V. C. Greenberg, Esquire q Galloway & Greenberg 1725 Eye Street, N.W. .

Suite 601 IN RESPONSE REFER Wash'ington, DC 20006 TO F01A-83-46

Dear Mr. Greenberg:

This is in response to your letter dated January 25, 1983 in which you requested, pursuant to the Freedom of Information Act and the Government in Sunshine Act, a copy of the transcript of the January 5,1983 meeting relating to the Commission's consideration of the exemption request for the Clinch River Breeder Reactor (CRBR).

The substantive determination under both Acts is governed by the Sunshine Act exemptions. The transcript has been reviewed and it has been determined that it is exempt in its entirety from mandatory public disclosure under Exemption 10 of the Government. in Sunshine Act. The January 5, 1983 meeting focused on Commission adjudication related' to ongoing litigation, in particular, the Supplemental Decision on exigent circumstances in response to the D.C. Circuit Court's Order of December 7,1982. Not only do Commission deliberations of this nature benefit from the uninhibited exchange of ideas and opinions, but the public exposure of such deli-berations sould be contrary to the well-established principal that the mental process of the Commission are not subject to probing. - Accordingly, the transcript is being withheld in its entirety pursuant to Exemption 10.of the Government in the Sunshine Act (GISA) (5 U.S.C. 552b(c)l10)) and i Exemption 3 of the F0IA (5 U.S.C. 552(b)(3)). ,

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 the denial is Mr. John C.

l Hoyle, Assistant Secretary of the Commission.

This denial may be appealed to the Comission within 30 days from the receipt of this letter. Any such appeal must be in writing, addressed to the Secretary of the Commission, 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 F0I A Decision".

Si .erely f pp , ,

. M. Felton, Director Division of Rules and Records Otfice of Administration .

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