ML20079L047
| ML20079L047 | |
| Person / Time | |
|---|---|
| Site: | 05000000, Zimmer |
| Issue date: | 07/06/1982 |
| From: | Slaggie E NRC OFFICE OF THE GENERAL COUNSEL (OGC) |
| To: | |
| Shared Package | |
| ML20079F227 | List: |
| References | |
| FOIA-83-363, TASK-AII, TASK-SE SECY-82-285, NUDOCS 8401250269 | |
| Download: ML20079L047 (6) | |
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July 6, 1982 SECY-82-285 ADJUDICATORY ISSUE (Infornlation)
For:
The Commission From:
E.
Leo Slaggie Acting Solicitor
Subject:
Thomas Applegate v. NRC, Cir. No.
82-1829 (D.D.C.).
Discussion:
On June 30, 1982, Mr. Thomas Applegate, through his attorney Lynn Bernabei of the Government Accountability Project, brought suit against the NRC under the Freedom of Information 'Act (FOIA).
Mr.
Applegate contends that the NRC improperly withheld certain documents and failed to identify others in response to his November 23, 1981 request for all records relating to the August 7, 1981 OIA report on the adequacy of the IE investigation at Zimmer.
In particular, Mr. Applegate seeks access to draft and background documents, including the summary of an OIA interview of Mr. Terry Harpster, an NRC Reactor Preparations Specialist on detail to the House of Representatives Government Operations Contacts:
Marjorie Nordlinger 41493 Rick Parrish 43224 84,1250269 831010 PLA FOIA PDR WEISS83-285
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2 Committee, Subcommittee on Energ~y, Environment and Natural Resources, and material relating ts a course of instructions for NRC investigators.
The lawsuit also encompasses four (4) internal memoranda withheld by Commissioner Bradford's office.
In responding to the initial FOIA 4
request and administrative appeal, OIA had determined that records of the Harpster interview, not specifically requested prior to the filing of this lawsuit, were not within the scope of the FOIA request.
OIA informed that-they did not retain draft versions of the OIA report and related background material in their files.
After consultation with the Director, OIA, and the Assistant United States Attorney assigned to this case, we will develop a strategy for responding to the complaint.
We are required to-file an j
answer or a dispositive motion with the court within thirty days of the i
initiation of the case.
We will keep the Commission informed of further developments in this litigation.
%J k,=l-E.
Leo Slaggle -
Acting Solicitor
Attachment:
Complaint' DISTRIBUTION:
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OIA EDO ELD SECY i
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,y THOMAS APPLEGATE
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Plaintifd
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Civil Action No.82-1829 v.
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. NCCI. EAR REGUI.ATCRY C0!DiISSION
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1717 "H" Street, N. W.
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JUN 301982 l
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4 COMPLAINT FOR ACCESS TO* PICOROS A'ID DECLARATORY AND INJUNCTIVE FILIEF 1
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1.
This is an action under the Freedom of Information Act
- ("FOIA"), 5 U.S.C. S 552, as amended, to order the production of
' agency records.
s 2.
This Court has jurisdic: ion over this action pursuant
, h 5 U.S.C. 5 552(a) (4) (3).
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3.
Plaintiff Thomas Applegate is the requester of the agency records which have been i=nroperly withheld.
. 4.
Defendant Nuclear Regulatory Comission ("NRC") is an agency of the United Ststes and has possession of the records to
- which plaintiff seeks access.
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e 5.
On November 23, 1981, plaintiff made a written request i
to the NRC for all notes; memoranda, telephone logs, tapes,
.df aries and/or other recerf.s prepared by ; :rn=c.t capleyaes in i
connection with an August 7,1981 Report of the Cffice of Inspector and Auditor ("OII.") entitled "Special Inquiry res l
Adequacy of
.e.* Investigation, 50-358/80-9 at the Nilliam
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Nuclear Power S tation. "
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Un. der cover letter of December 31, 1981,. defendant e
n responded by releasing sixteen' documents in their entirety, l
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. withheld two documents in part, and Vithheld four documents in 1
l their entirety.
j 7.
On January 29, 1982, within the time limits, al' lowed m.,
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- by the Act, plaintiff appealed this initial NRC decision.,
8 By letter of March 22, 1982, the NRC affirmed its 7
- initial decision to withhold four. documents in their entiracy.
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Defendant also stated in unequivocal language that the NRC did
,not possess anySinformal records, drafts, or notes relating to,
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the CIA Report, and indicated that those documents the NRC either released or withheld were the only documents responsive 4
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, to plaintiff's request that the NRC currently. possessed.
l 9.
Plaintiff is entitled to access of all such records j
i responsive to his request, includ'ing but not lin'.ted to the following documents which plaintif( has reason to believe exist 2 f (a) The su= unary of a March 6',1981 interview conducted A
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i by CIA investigators with Mr. Tarry Harpster, an NRC Reactor t
Preparations Specialist on detail to the House ct' Represen-tatives Government operations Committee, Subcomr..ittee on Energy, Environment and Natural Resources Co=mittee.
In the interview Mr. Harpster allegedly stated,that--
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NRC inspector left the NRC after being introduced to the over-sight program at Zimmer, because it was so inadequater 7) the
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licenliee, Cincinnati Gas and Electric ("CGsE*), was relying "on personnel inexperienced in nuclear power, to oversee construc-tion; 2) he had raised these concerns with CG&E vice Presi-t dont Earl Borgmann, but without success: 4) in July 1973 I..
the licensee promised to upgrade its program
- 5) at the time' e
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of the Three.sile Island accident the licensee only had one l
Quality Assurance staff person for ope' rations at Zi=.er; 6) a I
plant management official wa,s afraid to tour the plant bc.cause t
of all. the convicted felons working on site;.7) licensee offi-cials made untrue statements to the Advisory C =mittee es Reactor Safety ("ACRS") _ and f ailed to correct the record af ter being 8-4-.
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- j informed of the inaccuracies;.8) Charles Barth of the NRC Office g
of the Executive Legal Director advised 'that a letter from NRC
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Region III Administrator Jar as Keppler about the inaccurate ACRS 1
%c testimony should be thrown aways and 9) the situation at the 4
Xianner plant was "out of control" when he lef t the site at the time of the Three Mile Island accident.
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[b) Any explanation in the text of the CIA fi i repert, i
. or any prior draf t, cancerning Attach =ent 10 that describes a 4
course and instructions
- to NRC investigators on conducting a s
'non-criminal investigation.
This explanation is not included iri the publicly-released OIA Report and no referen'ce to this text has been found in any 9
' other documents released to plaintiff in resp'onse to plaintiff's FOIA request.
j 10.
There is no legal basis 'for defendant's denial of 4
such access.
NEEREFORE, plaintiff prays that this Court (1) Order defendant to make the information available as 4
requested, including but not limited to all infor=atica listed in subsection (9) above; i
(2) Expedite the proceedings in this action as provided j
in 5 U.S.C. 5 552(a) (4) (B);
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(3) Order defendant to provide plaintiff with an index
- of 'all documents withheld in part or in whole, as re uired by s
3 Vaughn v. Rosen, 484 F.2d 820 (D.C.'Cir. 1973), cert, denied,
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3 415 U.S.
977 (1974);
(4) Award plaintiff costs and reasonable atterney fees t
,in this action, p'ursuant to 5 U.S.C. 5 552 (a) (4) (E) :
(5)
Issue a written finding, pursuant to 5 U.S.C. S 552 (a) (4) (F), that the circumstances surro,unding the withholding raise questions whether agency personnel acted arbitrarily or capricicusly with respect to the withholding, and a written finding whether agency personnel acted illegally in denying the i
exist.cnce of certain dscuments: and i
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(6). Grant such other and further relief as the Court may
.rs.*
deem just dnd. proper.
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3aspectfu11y submitted, N
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LYNNE 3ERlA3EI g
-Government Accountability Project of e Institute for Policy Studies 190 "Q* Street, N. H.
Washington, D. C.
20009 (202) 234-9382
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Attorney for Plaintiff
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, DATED: ' June 30, 1982
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