ML20101B711
| ML20101B711 | |
| Person / Time | |
|---|---|
| Site: | Vogtle  |
| Issue date: | 01/26/1996 |
| From: | Lamberski J TROUTMANSANDERS (FORMERLY TROUTMAN, SANDERS, LOCKERMA |
| To: | NRC OFFICE OF THE SECRETARY (SECY) |
| References | |
| FOIA-95-420, FOIA-96-A-2 NUDOCS 9603150015 | |
| Download: ML20101B711 (3) | |
Text
- - ~ ~
TI(OUTMAN SANDERS _
b
- m. 7..e.w..u.r.e.=
NATIONSBANK PL A/A 600 PE ACHT AE 1 $T AE E 7 N E SUITF S200..
ATL ANT A. GEOAG. A 30308 2216 4
4 T ELE PHONE 404 885 3000 J
F ACSMILE 404 e85 3900 OtRECT 404 885 3360 JOHN LAMBERSKt January 26, 1996
_gy g
]
kg { l.8 6 - 9 $
Office of the-Secretary i
Nuclear Regulatory Comraission i
U.
S.
i j
Washington DC 20555 Appeal from Initial FOIA Decision - FOIA 95-420 Re:
Dear Sir:
S 9.29, I hereby appeal the In accordance with 10 C.F.R.1996 First Partial Response to FOIA Request No.
NRC's January'11, 1
The January 11 Partial Response (hereinafter the
" Initial Decision"), a copy of which is enclosed, partially 95-420.
submitted on October 6, 1995 (copy also l
F denied FOIA 95-420,The record partially withheld constitutes a portion
. attached).
j of a memorandum to S. Ebneter from J. Vorse re: Request for Investigation No. RII-91-10, dated August 17, 1992, identified on Appendix B to the Initial Decision.
The Initial Decision states.that complete disclosure of the
}
."The requested records was being denied based on Exemption 5: Disclos j
Deliberative Process:
would tend to inhibit the open and frank exchange of ideas l
essential to the deliberative process...."
l FOIA Exemption 5 shields from disclosure those documents i
normally privileged in civil discovery, including documents protected by the common law predecisional or deliberative process et al. (Vogtle Electric j
privilege.
Georaia Power Comoany, 4
Units 1 and 2), CLI-94-5, 39 N.R.C.
190, 197 Generating Plant, 591 F.2d 753, 772 citing Jordan v. Denartment of Justice,"The deliberative process p (1994)
(D.C..Cir. 1978).
to the government and protects inter-and intrangencyrecommendations and communications ' reflecting advisory opinions, deliberations comprising part of a process by which governmental Voatle, supra, 39 decisions and policies are formulated.'"
N.R.C. at 197 auotina NIRB v. Sears. Foebuck in Co., 421 U.S.
- 132, 150 (1975).
~
Feb 14...
1/31...to OGC to Prepare Response for SECY's Signature.....Date due:
96-0000 i
g31 5 960126
~
LAMBERS 96-A-2 PDR
J TROU,TMAN SANDERS nas =~L :.1..sz' e.w Office of the Secretary U.
S. Nuclear Regulatory Commission.
January 26, 1996 Page 2 The deliberative process privilege applies only.to information that is (1) predecisional and (2) deliberative.
at 197 citing Petroleum Information Voatle, supra, 39 N.R.C.
Denartment of Interior, 976 F.2d 1429, 1434 (D.C. Cir.
Corp. v.
Communications are deliberative if they reflect a 1992).
consultative process, i.e., they relate to the process by which~
Voatle, supra, 39 N.R.C.
at 198.
s policies are formulated. factual material that does not reveal the deliberative
- However, process and is not inextricably intertwined with the opinion portion is not shielded by the privilege.
Id citing Norwood v.
577 (6th Cir. 1993).
In Voatle, supra, the Eh&, 993 F.2d 570, Commission ordered the disclosure of those portions of an OI
~
3 investigative report which constituted factual information.
39 N.R.C.
at 199-200.
The memorandum partially withheld by the Initial Decision is 1992 report from the Region II OI Field Office
.an August 17, Director to the Regional Administrator concerning an 1992.
Egg
' investigation that was closed on September 14, 1992 memorandum.from'J._Vorse to S.
Ebneter September 14, identified on_ Appendix _A to the Initial Decision.
The portions of the August 17 memorandum which have been disclosed indicate A
that the memorandum was reporting factual information.
numerical listing of eleven facts begins on page one following "The facts already developed in this matter are as the statement:
The information withheld from disclosure on follows:
pages three and four may very well be more of the same factual Exemption 5 does not allow the NRC to withhold from information.
disclosure such factual information.
Moreover, given that the memorandum in question is three and one-half years old and that the investigation was it appears that disclosure of the remainder of closed in 1992, the August 17 memorandum cannot reasonably be viewed as injurious Absent such to.the consultative functions of the government.
Egg Sears, supra, injury, the memorandum should be disclosed.
421 U.S. at 149.
I respectfully request.the Secretary to carefully review the 1992 memorandum identified on Appendix B of the Initial Decision to determine the appropriateness of the claim August 17, that FOIA Exemption 5 permits the NRC to withhold portions of If the Secretary decides that that memorandum from disclosure.
l t
TROUTMAN 6ANDERS
...Lw,"#A.n. ^ L aJa Office of the Secretary U.
S. Nuclear Regulatory Commission l
January 26, 1996 Page 3 the Initial Decision should be upheld, I request a full explanation of the rationale for denying the requested records under Exemption 5.
If you have any questions concerning this appeal you may contact me by mail or by phone at the address and phone number listed above.
Very truly yours,
)
l ohn Lamberski Enclosures I
!