ML20099B919

Submits Appeal of Partial Denial of W Eddleman 840803 Request for Minutes,Notes,Drafts & Other Documents Used in Preparation of SALP Repts Prepared Since 1979.Review & Disclosure of Withheld Documents Requested

ML20099B919
Person / Time
Site:	Harris
Issue date:	11/12/1984
From:	Runkle J EDDLEMAN, W., RUNKLE, J.D.
To:	Chilk S, Dircks W NRC OFFICE OF THE EXECUTIVE DIRECTOR FOR OPERATIONS (EDO), NRC OFFICE OF THE SECRETARY (SECY)
Shared Package
ML20099B861	List: ML20099B859 ML20099B919
References
OL, NUDOCS 8411190341
Download: ML20099B919 (3)

Text

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November'12,:1984 Y

William J. Dircks

. Executive Director for Operations LUS Nuclear Regulatory Commission cWashington, D.C.- 20555

' Samuel.J. Chilk, Secretary

? iUS Nuclear Regulatory Commission i Washington, D.C. 20555 4

Ret Appeal from an Initial FOIA Decision.(FOIA-84-652,' Wells Eddleman) i

Dear Sirs:

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f This letter is an appeal of the partial denial of a l request made by I Wells Eddleman on Augus't 3, 1984, pursuant to the Freedom of Information Act,

). 5 USC 552(a)(6), and the NRC regulations at 10 CFR 9.11. This' request asked I for "all minutes, meeting notes, oth'er notes, drafts and other documents _ _

underlying, used in preparation of, or prepared in connection with, the System-

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atic Assessment of Licensee Performance (SALP) reports prepared since,1979"'

f for the H.B. Robinson 2 (Docket 50-261), Brunswick 1 & 2 (Dockets 50-324/325),

1 and Shearon Harris (Dockets 50-400/401/402/403) nuclear plants. .That request-

} was partially filled by letters fron J.M. Felton on September 14, 1984, and

{ October 19, 1984 (Appendix'A). This letter appeals the denial of all of the l documents lisu d in Appendix B of Mr. Felton's letter of October 19.

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In denying the Appendix B documents, Mr. Felton's letter _ relied on the l

FOIA exemption for intra-agency memoranda,. 5 USC 552(b)(5). However given-

! the lack of~information in Mr. Felton's denial, it'is impossible for'Mr.

g Eddleman to determine whether the documents withheld fall within that exemption.

l While the letter states that the denied documents represent "the evaluations,

opinions, and recommendations of the staff resulting_from its assessment of l

the information," they are not described with the requisite specificity.

Thus it is impossible to determine whether the exemption has been properly applied.

i As a requestor obviously does not have .the ability to review denied' documents to allow it to argue that the denial was improper, the D.C._ Circuit

{ in Mead Data Central, Inc. v. U.S. Department of the Air Force, 566 F. 2d 242, '

251 (D.C. Cir. 1977), held that the burden is "specifically plac[ed] on the .

Government" to establish that the withheld material is exempt from the require- {

ment of disclosure. Moreover, it held that this burden cannot be met by  !

" sweeping and conclusive citation to an exemption."

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l Mr. Felton's letter contains none of the information required by the court in Mead Data. The denied documents listed in Appendix B are identified l only by title, author, recipient, and in some cases,.date. No "datailed justification" is included despite the fact that Section b(5) of FOIA does 8411190341 841113 -

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not provide a blanlEet exemption for all pre-decisional agency memoranda.

The, exemption does not apply, for. example, to statements.of law or policy; statements of . final agency action; or . statements by agency superioirs to subordinates explaining the reasons for decisions. Taxation With Representation l

v. IRS, 646 F. 2d 666, 676 (D.C. Cir. 1981). It does not apply to instructions ,

+ to .staf f that af fect a member of the public; an agency's " working" pr' " secret" law; or-positions on issues taken by the agency formally or informally, even if~

at the~ time of preparation it could'be called " pre-decisional." 'See_e.g.

Coastal States Gas Corp v. Department of Energy, ~ 617 F. 2d at 866; Federal Open Market v. Merrill, 443 U.S. at 360; and NLRB v. Sears, Roebuck & Co., 421 U.S. '

at 151 - 153.

The . letter does not identify the specific portions of the documents nthat allegedly are covered by the' exemption. Non-exempt materials must be segregated from exempt materials and disclosed "unless they are inextricably intertwined with exempt portions." Mead Data, supra, at 260. Where an agency decides not to segregate non-exempt material, it must provide a detailed justification of that decision. Id. at 261. Mr. Felton's letter _ simply states that "the documents contain no reasonably segregable factual portions not already in-the public domain," and provides no information as to why exemption (5) applies to the entire document, or why non-exempt portions were not disclosed.

A Vaughn index or some other systematic itemized listing of the documents with a detailed justification statement covering each refusal to release the material would be a convenient method of addressing this lack of specificity. .,

The denial of disclosure of certain of this material is inconsistent inL ,

that Mr. Felton's letter of September 14, 1984, made available some of the background documents around the Shearen Harris nuclear plant portion of'the most recent SALP (documents 39 through 52 in Appendix A of September 14, 1984)..

Similar material for the Robinson and Brunswick nuclear plants was withheld in the October 19 letter under exemption (5). It is our further understanding that the agency has released to other FOIA requests background documents relating to various SALP reports; Critical Mass researcher, Richard Udell, ,,

was given the entire documentation behind the first SALPs nationwide without Y-exemptions.

Lastly, exemption (5) is discretionary and should not be used to hide material which is relevant and in this case, crucial to other proceedings. .

Mr. Eddleman is one of the Intervenors in the operating license proceedings for the Shearon Harris Nuclear Power Plant (Docket No. 50-400 OL) and filed a timely request for the SALP material as it played an important part in the

( litigated contention on the Applicants' ability to safely manage the construction

} and operation of the nuclear plant. NRC Staff in Region II-and Counsel assigned ,

the case were notified by phone and during the hearings on that matter that the j

i material was needed. The first portion of the released material was not I

timely issued and indeed, was not released until September 14, the last day of the heating on the management contention. The record in that matter has been closed although the Atomic Safety and Licensing Board panel has allowed us to reopen the record on a showing of relevance to the validity of the final released SALP reports. Furthermore, during the hearing and in prehearing conference calls, NRC Staff witness and NRC Counsel stated that the very material which is the subject of this appeal had been destroyed. -,

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Mr. Eddleman' urges that you review the withheld documents and decide to

_ disclose them. .If you do not make them available, the NRC must provide a

, detailed justification for the denial of each document or the portions of each document being withheld. We look forward to your response within the

twenty working" days allowed by law.

• s' ,

. ?' Sincerely, i . ' ohn Runkle A t torney-a t-Law PO Box 4135 Chapel 11111, NC 27515-4135 919/942-0600 942-7935

, Representing Wells Eddleman on this FOIA Appeal cc. Service List on the Shearon Harris Nuclear Power Plant (Docket - '

50-400 OL)

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