ML20114C210
| ML20114C210 | |
| Person / Time | |
|---|---|
| Site: | Crane  |
| Issue date: | 12/28/1983 |
| From: | Jordan W HARMON & WEISS |
| To: | Chilk S NRC OFFICE OF THE SECRETARY (SECY) |
| References | |
| FOIA-83-478, FOIA-83-A-38 NUDOCS 8501300090 | |
| Download: ML20114C210 (3) | |
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HARMON, WEISS & JORDAN 172 5 e sT REET, N.W.
suite 30.
WAs nIworox, D.C. soooo G AIL McGREEvy M AmMON TELEPHONE ELLYN R. WEISS 82021833 9070 WILLIAM S JORD AN,110 DIANC CURRAN
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DEAN R. TOIRLCY I
December 28, 1983 Samuel J.
Chilk, Secretary APPEAL OF INITIAL FOIA DECISION fd*b
- 3 8C h3-4/7)J Nuclear Regulatory Commission Washington, D.C.
20555 h 'd M-a !-Ps
Subject:
Appeal from an Initial FOIA Decision FOIA-83-478
Dear Mr. Chilk:
This is an appeal on behalf of the Union of Concerned Scientists from partial denials of a request for documents under the Fr eedom of Information Act.
The request was filed by Ellyn R. Weiss on August 15, 1983.
I have enclosed a copy of Mr. Felton's denial letter of November 28, 1983.
UCS appeals the denials in Mr. Felton's letter as follows:
1.
SECY-83-268 The denial withheld a memorandum and draf t letter on the ground that they contain predecisional advice to the Commission.
The denial stated that the documents in question "do not contain any reasonably segregable factual portions which are not already a matter of public record included in Docket No. 50-289.*
The denial also argued that release of the f actual portions of the documents is not required because release would reveal a predecisional evaluation of which facts are important.
This denial does not comply with the FOIA.
Contrary to the principles of Vaughn v. Rosen, 484 F.2d 820 (D.C. Cir. 1973),
cer t. _d en i e d, 415 U. S. 9 7 7 (1974), the denial provides no explanation of what facts are involved or why the factual i
portions cannot be segregated from the deliberative aspects of the document.
The Commission must go beyond its bald assertion and explain why release of the f actual portions would reveal a.
predecisional evaluation of which facts are important and why that revelation would hinder the deliberative process.
Mead Data Central, Inc. v. U.S. Department of the Air Force, W 12/28...To OGC to Prepare Response for Signature of SECY...Date due: Jan 26 Cpys to: RF... 83-2685 9501300090 831228 PDR FOIA JORDAN 83-A-38 PDR
NAmxox, Wuss 6c JORDAN Samuel J. Chilk.
December 28, 1983 Page 2 F.2d 242, 260-61 (D.C. Cir. 1977).
At this point, there is no reason to believe that the factual portions are not releasable under Playboy Enterprises, Inc. v. Department of Justice, 677 F.2d 931 (D.C. Cir. 1982).
Finally, the denial appears to rely in part upon the fact x
that some of the factual portions are already a matter of public r ecord.
There is no basis for a denial on that ground alone with no further explanation.
To the extent that the
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Commission relies upon public availablility of the information as a basis for denial, it must identify the relevant materials from among the hundreds of thousands in Docket No. 50-289.
It f
has not done so here.
2.
,I The denial of SECY-83-281 describes the document as including an analysis of options regarding TMI-l restart and a j
draf t schedule for resolution of certain TMI-l restart issues.
l The denial asserts that these are parts of the deliberative process and that factual portions are so intertwined with l
advice that they are not segregable.
This denial suffers from the same flaws as the denial of SECY-83-268.
The explanation and justification are inadequate j
to provide a basis for evaluating the determination.
In
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particular, it is difficult to see how release of a proposed i
schedule for the resolution of various issues would indicate anything significant about the deliberative process within the agency.
The public is often informed of the tentative schedule j
for administrative and adjudicatory decisions.
There is no j
basis for an assertion that public knowledge of this suggested schedule would in any way interfere with the decisionmaking i
process.
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3.
SECY-83-299 This denial suffers from the same deficiencies as the i
previous two.
The explanation and justification are
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inadequate.
The public is entitled at least to a description of the factual information and an explanation of why its i
release would interfere with the deliberative process.
i In addition, the denial ignores the fact that the recommendations and positions taken in the memorandum have been adopted by the Commission.
On September 9,1983, the l
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i HAnxox. Wzzss & Jont>As b
Samuel J. Chilk December 28, 1983 i
i Page 3 commission denied the motion to reconsider.
The Commission also set September 9,1983, as.the deadline for its review of the Director's decision not to shut down Indian Point.
Since the Commission has neither extended that deadline nor taken any other action, it has effectively decided to uphold the Director.
Thus, it has apparently adopted the recommendations in the subject memorandum.
If that is the case, FOIA requires i
that the Commission now release those recommendations.
Afshar l
- v. Department of State, 702 F.2d 1125,1142-43 (D.C. Cir.
1983).
If the Commission did not adopt those recommendations, i
it must so demonstrate in order to support denial of these j
documents, i
4.
SECY-83-305, -306, -307 i
UCS asks that the Commission review these denials to determine whether the public interest would be better served by release of these transcripts.
UCS believes public confidence in the integrity of Commission handling of TMI-l depends upon complete disclosure of all Commission dealings and deliberations on the subject.
l Thank you.
I look forward to receiving your response 4
within 20 working days.
I would also be glad to discuss this j
appeal with you.
My telephone number is 833-9070.
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Sincerely, mf.
,,y William
. Jordan, III
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