ML20080C513

Appeals Denial of FOIA Request for SECY-83-472 & Item 4 of Adato Request Re Correspondence Between Commissioner Roberts & Gpu

ML20080C513
Person / Time
Site:	Three Mile Island
Issue date:	10/28/1983
From:	Jordan W HARMON & WEISS
To:	Dircks W NRC OFFICE OF THE EXECUTIVE DIRECTOR FOR OPERATIONS (EDO)
References
FOIA-83-479, FOIA-83-A-33 NUDOCS 8402080121
Download: ML20080C513 (3)

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tro,y[E."$70 l ELLvN 4 WCISS WILLI Au 5 JORD AN, l't LCC L BtSMOP DIANC CURR AN LUCtA 5. ORTH oc4N a TouSLcv October 28, 1983 APPEAL OF INIT AL F0lA DECISION William J. Dircks Executive Director for Operations h-h- ($3 M 9 U.S. Nuclear Regulatory Commission washington, D.C. 20555 hQQ ll.l-hb Suject: Appeal from and Intial FOI A Decision FOIA-83-479

Dear Mr. Dircks:

This is an appeal on behalf of the Union of Concerned Scientists from partial denials of a request for information under the Freedom of Information Act. I have enclosed a copy of the original request, which was filed by Michelle Adato of UCS by lettei of August 16, 1983. I have also enclosed a copy of the Commission's response of September 29, 1983, denying any access to SECY-83-472.

UCS appeals the complete denial of access to SECY-83-472.

UCS also appeals the effective denial of Item 4 of Ms. Adato's request, which related to correspondence between Commissioner M

Roberts or his staff and General Public Utilities. I address these appeals in turn below.

1. SECY-83-472 The Commiseion's response of September 29, 1983, described SECY-83-472 as containing four parts. The first two involve specific advice and appear to be legitimately exempt from disclosure. The third and fourth parts are (3) Enclosure 2, List of Hardware to be Installed or Modified Prior to Restart (1 page); and (4) Enclosure 3, Summary of Gilinsky Office Items (3 pages) .

The third part appears to be simply a compilation of factual information that is clearly segregable from the remainder of the document. It is not at all clear what the fourth part is, and the Commission has given no explanation that would justify denying its release under the FOIA.

8402080121 831028 PDR FOIA JORDAN 83-A-33 PDR

H ARMON & WEISS William J. Dircks Page Two October 28, 1983 The Commission invokes Exemption 5 on the premise that the release of the factual portion of the withheld information, presumably parts 3 and 4, "would reveal a predecisional evaluation of facts in the restart proceeding.' The Commission has failed, however, to provide an explanation or justification for this position. If part 3 simply informs the Commission of the hardware that will be installed or modified prior to restart pursuant to staff or Board orders, for example, that

, information is public knowledge, although it may be difficult I to compile, and the fact that the public is aware that the Commission has been informed of those facts would in no way interfere with or affect the Commission's deliberative process. On the other hand, if these are installations or modifications that the Commission is considering in addition to those required by the staff or the licensing boards, or if the list indicates that the Commission is considering requiring less than the staff or boards may have required, the revelation of those facts may affect the Commission's decisionmaking process. Thus, the Commission's right to rely upon the exemption depends upon the precise nature of the factual material and its role in the decisionmaking process. Even if the Commission may consider the facts as it makes its decision, it must disclose those facts beforehand unless there is a real possibility that disclosure would harm the deliberative process.

Based upon the Commission's response, there is no reason to believe that release of this factual information meets this criterion. The Commission has said that the f actual information is already available in the public record of the TMI-1 restart proceeding. The Commission must go beyond its bald assertion that its release would " reveal a predecisional evaluation of facts" to explain why that is the case. Mead Data Central, Inc. v. U.S. Department of the Air Force, 566 F.2d 242, 260-61 (D.C. Cir. 1977).

With respect to part 4, the Commission must describe the document beyond reciting the title, which is meaningless to a member of the public. In order to meet its burden of establishing that this material is exempt, the Commission must also explain specifically why the document falls within Exemption 5 or any other exemption that the Commission asserts should apply. At this point, it is not even clear which exemption the Commission relies upon with respect to this part of SECY-83-472.

HARMON & WEISS (

William J. Dircks Page Three October 28, 1983 For these reasons, UCS appeals the complete denial of SECY-83-472. We urge you to order the immediate release of parts 3 and 4 as identified in the Commission's letter of September 29, 1983.

2. Commissioner Roberts' Correspondence with GPU Item 4 UCS' request sought the following documents:

4. All records of correspondence between Commissioner Roberts (or his staff) and General Public Utilities, during the period of April through August of 1983.

Specifically included in this request are letters, memoranda, telephone logs and minutes of meetings.

That request was filed by the Commission on August 17, 1983.

The -FOI A required a Commission response within 10 days, which was August 27, 1983.

As yet, UCS has received no formal response from the  ;

commission with respect to this request, although the deadline has passed by nearly two months. We are at a loss to understand this violation of the Act since all of these documents are clearly subject to disclosure because they involve contact between Commissioner Roberts or his staff and a party outside the agency. We are deeply concerned at this failure since we believe a full response to this request to be necessary for the public to be able to judge the integrity of the TMI-1 restart decision.

In light of the continuing violation of the FOI A deadline, we consider the Commission to have effectively denied this request. Accordingly, we appeal that denial to you in the hope that you will assure a prompt response.

Thank you. I look forward to receiving your response within 20 working days. I would also be glad to discuss this appeal with you. My telephone number is 833-9070.

Sincerely, 9

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William ordan, III WSJ/cpk i

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SEP 2 91983 Docket No. 50-289 Ms. Michelle Adato Union of Concerned Scientists 1346 Connecticut Avenue, NW Suite 1101 IN RESPONSE REFER Washington, DC 20036 TO F01A-83-479

Dear Ms. Adato:

This is an additional response to your letter dated August 16,1983 in which you requested, pursuant to the Freedom of Information Act, four categories of records.

Comission Paper, SECY-83-472, is being withheld in its entirety. This document contains (1) a four-page November 30, 1982 memorandum to the Comissioners from John E. Zerbe, Director, Office of Policy Evaluation (OPE) and Martin G. Malsch, Deputy Director, Office of the General Counsel (OGC)

Subject:

Craft Order for TMI-1 Restart Imediate Effectiveness Decision; (2) Enclosure 1, a copy of the Draft Order (26 pages); (3)

Enclosure 2 List of Hardware to be Installed or Modified Prior to

' Restart (1 page); and (4) Enclosure 3 Sumary of Gilinsky Office Items

- (3 pages).

The factual content in this Comission Paper is already available in the public record in the TMI Docket File under TMI-1 Restart Proceeding -

Category G. The release of the factual portions of the withheld information would reveal a predecisional evaluation of facts in the restart proceeding.

Therefore, the document does not contain any reasonably segregable factual portions. The document contains the opinions, advice, and recommendations of the Director of OPE and the General Counsel to the Comissioners concerning the Comission's imediate effectiveness decision in the restart proceeding. It is, therefore, being withheld from public disclosure pursuant to Exemption 5 of the Freedom of Information Act (5 U.S.C. 552(b)(5)) and 10 CFR 9.5(a)(5) of the Comission's regulations.

Release of the document would tend to inhibit the open and frank exchange of ideas essential to the deliberative process. For these reasons the document is being withheld in its entirety.

Identified as being subject to Item 2 of your request are four draft versions (28 pages) of Section 3 of the Appendix to the draft order.

Two phrases from each draft are '>eing withheld from public disclosure because premature disclosure of proposed decisions before they are actually adopted would tend to inhibit the open and frank exchange of ideas essential to the deliberative process and to protect against public confusion by the disclosure of reasons and rationales that were not, in fact, the actual reasons for the agency's actions. These portions

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Ms. Michelle Adato .

are being withheld pursuant to Exemption 5 of the Freedom of Information Act (5 U.S.C. 552(b)(5)) and 10 CFR 9.5(a)(5) of the Commission's regulations. The releasable portions are being placed in the NRC Public Document Room (PDR) located at 1717 H Street, NW, Washington, DC.

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 this denial is Mr. James A.

Fitzgerald, Assistant General Counsel.

This denial nay be appealed to the Commission within 30 days from the receipt of this letter. Any such appeal nost 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 FOIA Decision."

The NRC has not completed its review of the remaining documents subject to your request. We will respond as soon as that review is completed.

Sincerely,

. . Felton, Director Division of Rules and Records Office of Administration l

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August 16, 1CE3 l W. J.11. Felton, tirector Division of Rales ar.d Records FREEDCM OF INTORMATDN Cffice of Administration ACI REQUEST U.S. l'uclear Regulatory Corission i.'ashington, D.C. 20555 [d2~A -73.py t .

Dear t'r . Felton:

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Pursuant to the Freedom of Infomation Act, please make available for public review at the Comission's Public Eocument Room at 1717 H Street, Washington D.C., a copy of the following:

1. SECY-82-4F3, entitled "El-1 Restart Certification Status and !;U6EG-0737 ltems Status Update",12/9/F2

2. All other doctnents, including but not limited to reports, SECY papers, memoranda, analyses, correspondence oetwer. General h.alic Lt111 ties and !3C, r.inutes from meetings, etc., that contain infornation en the status of EI-1 compliance with l>UREG-0660 and 1.'UREC-0737 ( Action Plan) items. Please include all those prior to and since SECY-R2 483 3 All records of correspondence between the Co rnissioners, NRC staff, and General Pubile Utilities, in which exemptions from and extensions for completion of llUREG-0660 and NUREG-0737 items were requested , granted , or denied .

Specifically included in this request are all letters, internal staff memoranda, telephone logs and minutes of meetings conecrning this topic.

4 All records of correspondence bet ,eeen Co- nissioner Rooerts (or his staff) and Ceneral Public Utilities, durir.g the period of April through August of 19?3 Specifically

, included in this request are letters, memoranda, telephone logs anc minutes of meetings.

Snould there be any questions regarding this request, please do not hesitate to contact me at UCS's Washington, D.C. , office at 296-5600. Your cooperation in responding to this request is appreciated.

Sincerely,

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Nichelle Adato us

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