ML20077R893
| ML20077R893 | |
| Person / Time | |
|---|---|
| Site: | South Texas  |
| Issue date: | 01/13/1995 |
| From: | Gutterman A MORGAN, LEWIS & BOCKIUS |
| To: | NRC OFFICE OF INFORMATION RESOURCES MANAGEMENT (IRM) |
| References | |
| NUDOCS 9501230179 | |
| Download: ML20077R893 (3) | |
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'l MORGAN, LEWIS E BOCKlUS PHILADELPHIA COUNSELORS AT LAW WASHINGTON
- NEW Yonn 18 oo M ST R E E T, N.W.
Los ANGELES MI AM)
WASHINGTON, D.C. 2co36 HAmnissunO PRINCETON LONDON T E LE PMON E: 1202)467 7000 cxussELs Mwmm
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TOKYO January 13, 1995 kN I i
I U.S.
Nuclear Regulatory Commission Attn:
Document Control Desk i
Washington, D.C.
20555 j
Gentlemen.
On behalf of Houston Lighting & Power Company (HL&P), William J. Jump and Richard L.
Balcom, I request that the U.S. Nuclear Regulatory Commission withhold from public disclosure their responses to the Demands for Information and Notice of Violation issued to them on October 26, 1994.
As described further below, withholding of these documents is authorized by 10 C.F.R. 2.790(a) (7).
Section 2.790(a) (7) (iii) exempts from disclosure investigatory records compiled for law enforcement purposes to the extent that production of such records "could reasonably be expected to constitute an unwarranted invasion of personal privacy."
courts have held that, unlike the Personal Privacy FOIA Exemption, which permits nondisclosure only when a record portends a clearly unwarranted invasion of personal privacy, the Investigatory Records exemotion does not require a balance tilted i
empnat2cM ly in favor of disclosure.
Rather, the Investty" y Records exemption places greater emphasis on proccctung personal privacy.
See Committee on Masonic Homes v. NLRB, 414 F.
Supp. 426 (1976).
Information-regarding a potential wrongdoing investigation clearly meets this standard.
The guidance in the NRC Enforcement Manual, Section 7.3.4,
" Action Against the Individual," also states that such information should be withheld from public disclosure.
Although the DFIs issued to Messrs.
I Balcom and Jump appear to state an NRC conclusion that they violated NRC requirements, I have been assured by the cognizant MRC Staff members that the NRC has not yet made a determination regarding whether to charge HL&P or Messrs. Balcom and Jump with a violation of NRC 9501230179 950113 PDR ADDCK 05000498 I
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j MORGAN, LEWIS E BOCKlUS U.S.
Nuclear Regulatory Commission January 13, 1995 Page 2 l
requirements.
Accordingly the guidance provided in-Sections 7.3.4(e) (3) is applicable to the responses to the DFIs and the Notice of Violation.
Section 7.3.4(e) (3), which states, in part:
"If the staff review of the individual's response concludes j
that a violation exists and the individual was personally involved in the violation, the DFI and any other enforcement action and j
the individual's response, should I
then be sent to the PDR [Public Document Room] or the LPDR [ Local Public Document Room].
If the staff review of the individual's response concludes that a violation does not exist or 1
if a violation exists but the individual was not personally involved in the violation, then...
I the individual's response should not routinelv be sent to the i
PDR/LPDR."
The purpose of the NRC's enforcement guidance and the FOIA regulations is to protect the personal and 2
professional reputation of an individual until that individual has actually been charged with an apparent violation.
This NRC guidance also applies to the HL&P response, since it directly responds to questions about these individuals.
- t The responses filed by HL&P and Messrs. Jump and Balcom deny that any violation occurred, and provided detailed information about their professional histories that demonstrates that they can be depended upon to comply with NRC requirements.
Nevertheless, any disclosure of such information also will reveal and f "ther publicize the nature of the charges against th a.
No further disclosure of such information is appropriate if Mr, Balcom and Mr. Jump have not been charged with any violation.
Therefore, the NRC should withhold the subject documents from public disclosure pending conclusion of the Staff's review of the DFI responses and determination regarding the existence of i
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I MORGAN, Lewis E BOCKlUS U.S. Nuclear Regulatory Commission January 13, 1995 i
Page.3 l
I a violation and the level of Messrs. Balcom and Jump's personal involvement.
These documents also should be withheld from disclosure' pursuant to 10 C.F.R. 2.790(a) (7) (ii),
which applies to law enforcement records, the-disclosure of which would deprive a person or a right to a fair trial or impartial adjudication.
To respond i
to the DFIs, HL&P and Messrs. Jump and Balcom were i
required reveal portions of their attorney's analysis and strategy for defending a pending claim against HL&P in a Department of Labor proceeding concerning the same issues that were raised by the DFIs.
Public disclosure of this information would reveal it to the party opposing HL&P in the DOL proceeding, and therefore would prejudice the interests of HL&P.and Messrs.
l Balcom and Jump.
l As explained in the responses, publicity concerning the NRC's investigation and the DFIs has
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already harmed Messrs. Jump and Balcom.. Release of the responses is likely to lead to further publicity while i
the associated legal proceedings remain pending and i
they have not yet received the complete vindication to which they are entitled.
Without a final determination on these issues, such publicity can only add to the damage of their reputations.
Please call me if you
)
have an" questions about the request.
Sincerely,sW Alvin H. Gutterman AHG:wll cc:
Lawrence Chandler, Esq.
William J.
Jump Richard L.
Balcom Rufus S.
Scott James J. Sheppard
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