ML20128E734
| ML20128E734 | |
| Person / Time | |
|---|---|
| Site: | Zimmer |
| Issue date: | 12/11/1981 |
| From: | Brown N NRC OFFICE OF THE SECRETARY (SECY) |
| To: | Reed C NRC OFFICE OF ADMINISTRATION (ADM) |
| Shared Package | |
| ML20127A137 | List:
|
| References | |
| FOIA-84-415 NUDOCS 8505290456 | |
| Download: ML20128E734 (6) | |
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UNITED STATES s y" , NUCLEAR REGULATORY COMMISSION
{* Y WASHIN GTON. D.C. 20555 C C
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.. December 11, 1981 0,FFICE OF THE SECRETARY MEMORANDUM FOR: Carol Ann Reed Freedom of Information and Privacy Branch
- D vision of Rules and Records FROM: a b. Brown -
Correspondence & Records Branch
SUBJECT:
FOIA REQUEST FROM DEVINE & LOWENSTEIN ON ZIMMER The Chairman's offic'e has identified three documents that are subject to these requests and should be released: -
- . September 4, 1981 memo fm Palladino to Dircks October 2,1981 memo fm Palladino to Cumings November 16, 1981 memo fm Palladino to Dircks L
Commissioner Bradford's office has identified the following documents, all of which should be withheld pursuant to Exemption 5:
. October 29th draft letter to Udall with handwritten coments at the top.
October 30, 1981 memo to Chairman Palladino fm Comm. Bradford re Proposed Draft Letter to Cong. Udall Regarding Zimer October 21, 1981 memo to Com. Bradford from Tom Gibbon re Udall Letter on ~
Zimmer.with handwritten coments September 29, 1981 memo to Com. Bradford from Tom Gibbon re OIA Report on Zimer I have attached the' documents for release. This will complete SECY action on these requests.
Attac'hments:
As Stated-cc: Rick Parrish, OGC, w/ attachments b 8505290456 841227 PDR FOIA
! B AUSER84--415 PDR
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i NUCLEAR REGULATORY COMMISSION j.- -
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February 3, 1982 t,!.,Q.~[#'j IN RESPONSE REFER
% * * **** , TO FOIA-Sl-488
! . ore ct or twt SICRt1ARY Mr. Thomas Devine Government Accountability Project 4 1901 Que Street, NW
, Washington, DC 20009
Dear Mr. Devina:
This is in further response to your letter dated November 23, 1981, in which you requested, pursuant to the Freedom of Information Act (FOIA), copies of documents prepared in connection with the Office of Inspector and Auditor's report on IE's investigation of the.Zimmer Nuclear Pcwer Station.
On October 27 and 28, 1981, the Commission held closed meetings to discuss potential enforcement actions stemming from the Zimmer investigations. We have reviewed those transcripts under the Government in'. Sunshine Act (GISA) to '
determine whether they should be released in whole or in part at this time. The meetings were closed pursuant to exemptions (5), (7), and (10) of the Government in Sunshine Act, 5 U.S.C. 552b, and 10 CFR 9.104 of the Commission's regulations, since the discussion focused on the review of investigatory reports and the consideration of potential enforcement actions, including the imposition of civil penalties, all within the context of an ongoing agency adjudication. Commission deliberations of this nature are ~
exempt from mandatory public disclosure in the interest of avoiding interference with current and future Licensing Board proceedings and of protecting the uninhibited exchange of ideas and opinions which relate to such proceedings. Tcr, these reasons, the Commission has determined that the publi'c' interest does not require release of these transcripts and that they should be withhe:1d in their entirety pursuant to exemption (3) of the Freedom of Information Act and exemptions (5), (7), and (10) of the Government in the Sunshine Act. -
Because the Commission itself addressed this portion of your r equ est, an FOIA appeal would be reddndant. Therefore, please consider this the final agency action. Pursuant to the FOIA., judicial review of this decision is available in a Federal District Court in the district in which your client resides, has his principal place of business, or in the District of Columbia. -
Sincerely, Ip -
Jo n . oyle
.tL k- ' g'Lp Acting Secretary of the Commission
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I B-1 and B-2 are in 81-A-15 l B-3 thru B-6 we do not have (Commission did not provide to us) _
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'j ),A C) . Q December 31, 1981 Mr. Thomas Devine Government Accountability project 1901 Que Street, N.W. IN RESPONSE REFER Washington, DC 20009 TO FOIA-81-488
Dear Mr. Devine:
This is in partial response to your letter dated November 23,1981, in which you requested, pursuant, to the Freedom of Information Act, copies of documents prepared in connection with the Office of Inspector and Auditor's report on IE's investigation of the Zimer Nuclear Power Station.
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The sixteen documents listed on Appendix A to this letter are enclosed in their entirety. .
Portions of document 1 of Appendix 8 contain the names of persons the release of which would constitute an unwarranted invasion of personal privacy and disclose the identities cf confidential sources. These names are being withheld pursuant to 2xemption (7)(C) and (D) of the Freedom of Infomation Act (5 U.S.C. 552(b)(7)(C) and (D)) and 10 CFR 9.5(a)(7,(iii) and (iv) of the Comission's regulations. A portion of document 2 of Appendix B contains the name of a person the release of which would constitute an unwarranted invasion of personal privacy.
This withholding is being made pursuant to exemption (7)(C) of the Freedom of Information Act (5 U.S.C. 552(b)(7)(C)) and 10 CFR 9.5(a)(7)(iii).
The non-exempt portions of these documents are enclosed.
- Documents 3 through 6 of Appendix B are c'omunications between Comissioners i
and their staffs and constitute advice, opinions and recomendations.
l These documents contain no reasonably segregable factual material and are,' therefore, being withheld in their entirety. Release of this in.'ormation would tend to inhibit future comunications between and among Comissioners and their' staffs, comunication which is essential to the deliberative process. This infomation is being withheld pursuant to exemption (5) of the freedom of Infomation Act (5 U.S.C. 552(b)(5))
and10CFR9.5(a)(5).
Pursuant to 10 CFR 9.9 and 9.15 of the Comission'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 persons responsible for the denial of documents 1 and 2 of Appendix B are the undersigned and Mr. Richard C. DeYoung, Director, Office of Inspection and Enforcement. The person responsible for the denial of documents 3 through 6 of Appendix B is Samuel J. .
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Chilk, Secretary of the Comission.
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The denial by !!r. DeYoung and myself may be appealed to the Executive Director for Operations within 30 days from the receipt of this letter.
- Any such appeal must be in writing, addressed to the Executive Director for Operations. U.S. Nuclear Regulatory Comission, 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 denials by Mr. Chilk reay be appealed within 30 days to the Comission and should be addressed to the Secretary of the Commission.
Sincerely,
$s'M J.M. Fe:tud 1
J. M. Felton, Directer )
Division of Rules and Records '
Office of Adninistration
Enclosures:
As stated DISTRIBUTION .
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g-81-488
.. APPENDIX A -
.1. nemorandum to G. A. Phillip from V. Stello, Jr., dated 1/16/81 re: Merit System Protection Board - Charges by IPS
- 2. Memorandum to V. Stallo, Jr., from J. G. Keppler dated 1/12/81 re: Zimmer - Government Accountability Project Request for Investigation by Merit Systems Protection Board Conce'rning tiRC's Handling of Applegate Allegations.
- 3. Memorandum to V.' Stello, Jr. , from J. G. Xeppler dated 3/17/81 re: Investigation of Applegate Allegations Related to Zimer. -
4 Handwritten notes by X. Ward dated 9/81 -
- 5. Memorandum to J. G. Keppler from J. E. Foster dated 9/21/81 re: '
Supplementary Coments on OIA Report .
- 6. Memorandum to file from J. R. Sinclair dated 2/5/81 re: Investigations of IE Efforts Pertaining to Investigations uf Alleged Construction Deficiencies at the Zimmer Nuclear Facility (Applegate) .
- 7. Memorandum to J. G. Keppler from R. A. Fortuna dated 1/29/81 re:
Confidentiality and Restriction of Information Forwarded by the Office of Inspector and Auditor
- 8. Memorandum to Chairman Ahearne from J. J. Cumings re: Thomas W.
Applegate Allegations L 9. . Memorandum OIA Report to W. J. D'ircks from N. J. Palladino dated 9/4/81 re:
10.- Memorandum to J. J. Cumings f'roni N. J. Palladino dated 10/2/81 re: DIA Report 11.
Meniorandum to W. J. Dircks from N. J. Palladino dated 11/16/81 re: DIA Report l 12. Memorandum to Comission from J. J. Cummings dated 8/6/81 re: OIA l
Special Inquiry .
- 13. Letter to A. M. Tracey from J. J. Cumings dated 8/17/81 re: OIA l Report
! 14. Memorandum to V. J. Stello from J. J. Cumings dated 2/10/81 re:
Transfer of Documentation Provided By Government Accountability 2 l Project (2/9/81) '
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APPENDIX A
' 15 Memora'ndum to J. G. Keppler from G. A. Phillip undated re:
Corments. on OIA Report
- 16 Memorandum to J. G. Keppler from J. E. Foster dated 9/3/81 re
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hIA-81-488 APPENDIX B .
- 1. Memorandum to files from G. A. Phillip dated 12/15/80 re: Zimmer Plant - Allegations.
- 2. 01A Report Chronology by Foster.
- 3. October 29th draft letter to Udall with handwritten comments ffem Comissioner Bradford's Office at the top.
4 October 30,1981. memo to Chairman Palladino from Com. Bradford re:
Proposed Draft Letter to Cong. Udall Regarding Zimer.
S '. October 21, 1981 memo to Com. Bradford from Tom Gibbon re: Udall Letter on Zimer with handwritten coments.
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Sep.tember 29, 1981 memo to Com. Bradford from Tom Gibbon re: OIA-Report on Zimer.
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NUCLEAR REGULATORY COMMISSION WA SHINGTON. D. C. 20555
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Decembsr 31, 1981 Mr. Thomas Devine Government Accountability project 1901 Que Street, N.W. IN RESPONSE REFER Washington, DC 20009 TO FOIA-81-488 Deer Mr. Devine:
This is in partial respense to your letter dated November 23, 1981, in which you requested, pursuant to the Freedom of Information Act, copies
-of documents prepared in connection with the Office of Inspector and Auditor's report on IE's investigation of the Zimmer Nuclear Power Station. .
The sixteen documents listed on Appendix A to this letter are enclosed in their entirety.
, Portions of document 1 of Appendix B contain the names of persons the release of which wou'id constitute an unwarranted invasion of personal privacy and disclose the identities of confidential sources. These names are being withheld pursuant to exemption (7)(C) and (D) of the Freedom of Information Act (5 U.S.C. 552(b)(7)(C) and (D)) and 10 CFR 9.5(a)(7)(iii) and (iv) of the Comission's regulations. A portion of document 2 of Appendix B contains the name of a person the release of whien would constitute an unwarranted invasion of personal privacy.
This withholding is being made pursuant to exemption (7)(C) of the
. Freedom of Information Act (5 U.S.C. 552(b)(7)(C)) and 10 CFR 9.5(a)(7)(iii).
The non-exampt portions of these documents are enclosed.
Documents 3 through 6 of Appendix B are 'comunications between Comissioners and their staffs.and constitute advice, opinions and recommendations.
These documents contain no reasonably segregable factual material and are, therefore, being withheld in their entirety. Release of this information would tend to inhibit future comunications between and among Comissioners and their staffs, comunication which is essential to the deliberative process. This information is 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).
Pursuant to 10 CFR 9.9 arid 9.15 of the Comission's . regulations, it has been deternined that the information withheld is exempt from production or disclosure, and that its production or disclosure is contrary to the public interest. The persons responsible.for the denial of documents 1 and 2 of Appendix B are the undersigned and Mr. Richard C. DeYoung, Director, Office of Inspection and Enforcement. The person responsible ,
for the denial of c'ocuments 3 through 6 of Appendix B is Samuel J.
Chilk, Secretary of the Commission.
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Mr.' Thomas Devine h ., -2 '
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The denial by. fir. DeYoung and myself may be appeal'ed to the Executive Director for Operations within 30 days from the receipt of this letter.
Any such appeal must be in writing, addressed to the Executive Director for Operations, 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 denials by Mr. Chilk '
may be appealed within 30 days to the Commission and should be addressed to the Secretary of the Commission.
Si rely,
- . M. Felton, Director Division of Rules and Records Office of Administration As stated
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1901 Que Street. N.W.. Woshington. D.C. 20009 (202)234 9352 l ,
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. January 29',- l9 82 Mr. Samuel J.'Chilk
- Executive Secretary APPEAL OF INITIAL FO!A DECISIC r egu ory Commission b / C- N, Washington, D.C. 20555
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Dear Mr. Chilk:
This is an appeal pursuant to subsection (a) (6) of the Freedom of Information Act, as amended 15 U.S.C. 552). On November 23, 1981, on behalf of Mr. Thomas Applegate, we requested copies of all notes,. .
memoranda, telephone logs, tapes,, diaries and/or other records pre-pared by U.S. government emplo'yees in connection with an August 7,
. 1981. Nuclear Regulatory Commission ("NRC") Office of Inspector and Auditor ("OIA") report entitled "Soecial Inquiry re: Adequacy of IE~ Investigation 50-358/80-9 at the William H. Zimmer Nuclear Power Station. " - ("Zimmer CIA Report") , as well as the investigation the Zimmer OIA Report is based on. In addition, we asked for all earlier full or partial draf ts and/or proposed supplements to the Zimmer OIA Report, as well as all records related to any deletions from its final version. (A copy is enclosed) . In connection with a letter dated December 31, 1981 and postmarked January 4, 1982, Mr. J.M. Felton of your agency partially granted our request. (His response is enclosed)'.
. Mr. Felton's letter f ailed to cite any exemptions for the effective denial of the bulk of our request, concerning informal records; :
earlier drafts and an explanation of any deletions. Instead', he simply ' ignored those portions of the i equest and failed to provide the documents without any explanation or citation. As a result, he vio-lated;the requirement of Vaughn v. Rosen (I), 484 F. 2d 820 (D.C. Cir.
1973), cert. denied, 415 U.S. 977 (1977) to in'dex and justify any records withheld. We are convinced that the final version of the CIA
. report was.not the only draft, since press accounts quoted an "o'ffidial close to the investigation" to the effect that'"[t]he critical report
'was watered down.'" (The Cincinnati Encuirer, Never.ber 18, 1981, p.1).
There is lititle question that these records are available under the .
Act. In Arthur Anderson, Inc. v. IRS, 514 F. Supp. 1173 (D.D.C. 1981),
the court held that numerous draf ts of revenue rulings,tas:Nell as _
accompanying background information and notes were not exempt under exemption 15. The court reasoned that those materials were generated before the adoption of agency policy and they were not part of the deliberative give and take of the consultative process. This is clearly analogous to our case. The investigative records and drafts we are asking for are f actual in nature and are not part of the de-liberative crocess.
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2/3...'io OGC to Prepare Response for Signature 'of SECY...Date due: Mar 2 ,
Cpys to: EDO, RF.. 82-81
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,a 9 If ,there were any doubt, in Playboy EnteEprises v..U.S. Dept. of Justice 51'6 F. Supp. 233 (D.D.C. 1981). the court held that an internal F.3.I.
report concerning.F.3.I. agents who infiltrated the Klu Klux Klan in the 1960's was not exempt, even though it was used by the Attorney General to form policy. The evaluative report was considered informationa in. nature and was not a part of the deliberative process. It only provided data .to be evaluated by the Attorney General. The factual -
portions, including the first draf ts, did not reveal the deliberative process of the Attorney General's office. Our case fits precisely into this catagory. What we are seeking concerns the entire f actual record for the NRC investigation of Zimmer which 12. Applegate challenged.
Mr. Felton has denied, under exemption #5, four documents identified -. -
as items 3-6 in Appendix B of his December 31, 1981 letter. Mr. Felton characterized the records as " communications between Commissioners and their staff s" that ".conctitute advice,' opinions, .and recommenda-tions." Obviously his description was not all-inclusive, however.
Mr. Felton continued, "These documents contain no reasonably segre-gable factual materials and are, therefore, being denied in their cntirety." There was no explanation for Mr. Felton's assertion that the non-exempt portions of the records are inseparable from the rest.
The courts have requi' red a restrictive interpretation of exemption 45.
As the Supreme Court stated in E.P.A. v. Mink, 410 U.S. 73 (1973),
"This exception (#5) to the general disclosure mandate of FoIA should be construed as narrowly as consistent with efficient government action."
Further, the burden-of-proof is on the agency to justify the exemption.
See e.g., Vaughn v. Rosen, 523 F. 2d 1144 (D.C. Cir. 197 5 ) . .. .Mr .J Felton 's esserted conclusion does not even attempt to satisfy this burden.
The default is not surprising, since the ' exemption is inapplicable.
As the court held in Taxation v. . IRS, 646 F. 2d 666, 6 7 7 . (D .C . . :Cir . 19 81) ,
" Exemption #5 does not apply to agency actions which explain actions that an agency has already taken. " See also Ryan v. Department of ~
Justice, 617 F.2d 781 (D.C. Cir. 1980) and Brinton v. Department of S ta te , 636 F. 2d. 600 (D.C . Cir . 19 8 0) . 'The Zimmer OIA report was ~
an attempt to evaluate and explain a previous NRC investigation and enforcement action, as presented in Report No. 50-358/80-09. As a result, exemption 4 5 does not ap' ply to Commission-staf f communications concerning the report. -
Even if the withheld records concerned deliberations about prospective agency. policy, exemption #5 would not apply to f acts, agency decisions, or existing agency policy, EPA v. Mink, 410 U.S. 73, 86 (1973). That information can only be denied if it is " inextricably intertwined"::with exempt portions, Ryan v. Department of Justice, 617 F. 2d 761, 790-91
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(D.C. Cir. 1980). Mr. Felton of f ered no analysis why exempt portions of the Commissioners' memoranda could not simply be whited-out. We are quite willing to appeal this denial to the courts for an in-camera review to. determine segregability, Playboy v. U.S. Department of Justice, supra. .
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In conclusion, we are seriously concerned that the Con:nission may not have dealt in good faith with this FOIA request. Your response to this administrative appeal will determine whether we initiate a com-plaint under 5 U.S.C. Sec. 1206 (e) (1) (C) for an investigation of
" arbitrary and capricious withholding of information", as well as possible disciplinary action.
As provided in the Act, we will expect to receive a reply to tilis coministrative appeal letter within twenty working days.
Si cerely, O ,
Je4 homas Devine Associ' ate Director i-i k k aub dyhosenthal Staff Associate N.
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190i Que Street. N.W.. Washington. D.C. 20009 . (202)234 9382 Nove:rber 23, 1981 '
Director ,
office of A&rinistration kaclear Regulatory Ccinission Washington, D.C. 20555 .
. .. To Wh=E it May C:ncern: . . .. . ..
Qa behalf of our r-Hent, Mr. temas Applegate, and ;crsuant to both the Frs.Lu of Infacmation Act (5 U.S.C. 5552) and tM Privacy Act (5 U.S.C.
$552a), we request copies of all notes, nn::oranda, telephone logs, tapes, diaries and/cc other record.s prepared by U.S. pvern.ent e:ployees in -
connection with an August 7,1981 Nuclear Pegulatory Cc= mission ("NBC")
office of Inspector and Auditor ("oIA") report entitled "Scecial Ircuiry re:
A$equacy of IE Investigation 50-358/80-9 at the William H. ZimTer Nuclear .
. Power Station." ("Zinmer CIA Peport"), as well as the investigation the Zimrer oIA sesort is based upon."-In partiM , Mr. Applegate requests all earlier full or partial drafts and/or pre;csed supple:r.ents to the Zirmar CIA Regert, as well as all records related to any deletions frcm its final version. If any reaterial covered by this request has been castroyed
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and/os Easived', please piciide alfstificunEfxf 636de'rI6t'on' i including but not limited to a description of the acticn(s) 'aken, relevant da'a(s),
and justification for the action (s).
Ft. Applegate rm;uests that fees be waived, because " finding the infor: ration can be considered as primarily benefitting the general public." 5 U.S.C. S 552(a) (4) (A) . Tne fee waiver should be granted for three reasons. Fi.rst, he schrits this request to further tha goals of his r- ---t-z 10, 1980 whistlebicwing disclescre to the office of the Soecial
.Co.:nsel of the Marit Systars Protection Sc'e rd. 'Ihe Special Cc'.risel reI..uired '
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.an NRC imestigation only after finding a reasonable belief that 12. A:ple-gata's disclosure evidenced illegality, mis: anagenent, gress was'a and
- a substantial and specific dnager to public health or safety. Ccuas-l tionably, the Special Counsel finding and the ensuing oIA .%;crt - which j fundamentally challenges the generic nature of NRC investigations -
i proves that 12. Applegata's ccccerns serve "the public interest." He seeks' .
these docurents in order to nenitor the adequacy. of the NE respcnse.
Second, the findings of the Zirmer CIA .%; ort totally ignored t o vital issues in Mr. Applegate's whistleblcuing disclosure - .
i 1) tha failure to ada;uately review his criminal allegations of widespread blac)crarkets, snugghg, and theft; and
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l 2) the failure to ccntact witnesses in April 1980 who sculd have.
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execsed a series of issues si>: renths bafore GP raised th=m l wih the C ...ission and the Special Counsel.
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te Special Osunsel had ordered the comrission to res;cnd to both allegations.
ce doct nents Mr. Applegate requests may help to explain why the Crrrissica
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chase to defy a legal. require::ent of the Civil Service Reform Act. We suhrit 4
that it inherently serves the public intarest to further understand the -
r ws that leads to governrrent illegality.
Bird, press accounts have con +=%ed charges that the re;crt was " watered 1 dcun. " Although deleted portions woula not represent the Carnissien's findings, i it is in the public interest to fully air the facts and expeting policies in the debate that profuced this controversial doc nent. De issue is of the umost inportan::e to the Arerican people - the afeguacy of N7C efforts to protact public health and. safety.
For any dccu: Tents or portions of doca: Tents that you deny due to a speific exemption, please prcvide an index itemizing and describing dbcutants or partions of documents withheld. D e index should provide a detailed justification of ycur grounds for clahning each exemption, ,
, af =%ing why each exe:ption is relevant to the docujent or.1:ortion , ,
withheld. Bis index is required under Vaughn v. Rasen (I), 484 F.2d 820 (D.C., Cir.1973) , cert. denied, 415 U.S. 977 (197,4) .
We 1cok forward to your respense within ten working days.
I .
Sinoarely, Thcrnas Devine Associate Director 6 ,
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t tLEAR REGULATORY COMMISSIC{
wAs MINGTON. D. C. 20:55
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December 31, 1981 l
Mr. Thomas De'v'ine
' Government Accountabili'ty Project ;
1901 Que Street, N.W. -
, IN RESPONSE REFER Yashington, DC 20009 TO FOIA-81-488
Dear Mr. Devine:
This is in ;iartial response to your letter dated November 23, 1981, in which you requested, pursuant to the Freedom of-Information Act, copies of documents prepared in connection with the Office of Inspector and Auditor's report on IE's investigation of the Ifmmer Nuclear Power
. Station. ,
The sixteen documents listed on Appendix A to this letter are enclosed in their entirety. .
Portions of document 1 of Appendix B contain the names of p'ersons the - -
release of which would constitute an unwarranted invasion of personal *
- privacy and disclose the identities of confidential sources. These names are being withheld pursuant to exemption (7)(C) and (D) of the Freedom of Information Act (5 U.S.C. 552(b)(7)(C) and (D)) and A portion10 CFRof 9.5(a)(7)(iii) and (iv) of the Commission's regulations.
document 2 of Appendix B contains the name of a person the re' lease of-which would constitute an unwarranted invasion of personal privacy.
This withholding is being made pursuant to exemption (7)(C) of the Freedom of Information Act (5 U.S.C. 552(b)(7)(C)) and 10 CFR 9.5(a)(7)(iii). '
The non-exempt portions of these documents are enclosed.
Documents 3 through 6 of Appendix B are coanunications between Commissioners and their staffs and constitute advice, opinions and recommendations.
These documents contain no reasonably segregable factual material and are, therefore, being withheld in their entirety. Release of this information would tend to inhibit future communications between and among Commissioners and their staffs, communication which is essential .
to the deliberative process. This information is being withheld i
to exemption (5) of the Freedom of Information Actb)(5)) (5 U.S.C. 552 l and10CFR9.5(a)(5). ,
Pursuant to'iO CFR 9.9 and 9.15 o.f 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 persons responsible for the denial of documents 1 and 2 of Appendix B are the undersigned and Mr. Richard C. DeYoung, Director, Office of Inspection and Enforcement. The person responsible for the denial of documents 3 through 6 of Appendix B is Samuel J. -
Chilk, Secretary of the Commission.
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, The denial by Mr. DeYoung and myself may be appealed to the Executive Director for Operations within 30 days from the receipt of this letter.
Any such appeal must be in writing, addressed to the Executive Director for Operations, U.S. Nuclear Regulatory Cortmission, . Washington, DC.
20555, and shculd clearly state on the envelope and in the letter that it is an " Appeal from an Initial FOIA. Decision." The denials by Mr. Chilk may be appealed within 30 days to the Commission and should be addressed
.to the Secretary of the Commission. .
Si rely,
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. . M. Felton, Director Division of Rules and Records' -
.. , Office of Administration ,., , . . , ,
Enclosures:
As stated ,
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- . ' i , Re: F01A-81-488 APPENDIX A
' 1.
I':morandum to G. A. Phillip from V. Stello, Jr., dated 1/15/81 rc: Merit System Protection Board - Charges by IPS
- 2. Memorandum to V. Stello, Jr., from J. G. Keppler dated 1/12/81 re: Zimmer - Government Accountability Project Request for Investigation by Merit Systems Protection Board Conce'rning liRC's Handling of Applegate Allegations.
- 3. Memorandum to Y. Stallo, Jr., from J. G. Xeppler dated 3/17/81 re: Investigation of Applegate Allegations Related to Zimer. .
- 4. Handwritten notes by K. Ward d.ated 9/81 ,
1
- 5. ' Memorandum to J. G. Xeppler from J. E. Foster dated 9/21/81 re: '
Supplementary Coments on OIA Report . .- .
- 6. Memorandum to file from J. R. Sinclair dated 2/5/81 re: Investigations of IE Efforts Pertaining to Investigations of Alleged Construction Deficiencies at the Zimmer Nuclear Fac.ility (Applegate) .
- 7. Memorandum to J. G. Keppler from R. A. Fortuna dated'1/?S/81' r~e:
Confidentiality and Restriction of Information Forwarded by the Office of Inspector and Auditor .
- 8. Memorandum to Chairman Ahearne from J. J. Cumings re: Thomas W.
Applegate Allegations
- 9. Memorandum to W: J. Dircks from N. J. Palladino dated 9/4/81 re:
OIA Report -
10.. Memorandum to J. J. Cumings from'N. J. Palladino dated 10/2/81 re: DIA Report
~
11' . Memorandum to W. J. Dircks from H. J. Palladino dated 11/16/81 re: 01A Report .
- 12. Memorandum to Comission from J. J. Cumings dated 8/6/81 re: DIA Special Inquiry .
- 13. I.etter to A. M. Tracey from J. J. Cucraings dated 8/17/81 re: OIA Report -
- 14. Memorandum to V. J. Stello from J. J. Cumings dated 2/10/81 re:
Transfer of Docunentation Provided By Government Accountability Project (2/9/81) . ;
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APPENDIX A .
. ' 15. '
liemorandum to J. G. Keppler from G. A. P'hillip undated re:
Coments on 01A Report .
- 16. liemoranduth to J. G. Keppler from J. E. Foster. dated 9/3/81 re:
01A Report-e -
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APPENDIX B
- 1. Memoranddm to files from G. A. Phillip dated 12/15/B0 re: Ziccer Plant - Allegations.
. 2. OIA Report Chronology by Foster.
- 3. October 29th draft letter to Ud,all .with handwritten comments ffom Commissioner Bradford's Office at the top.
- 4. October 30, 1981 memo to Chairman Palladino from Com. Bradford re:
Proposed Draft Letter to Cong. Udall Regarding Zimer.
- 5. October 21, 1981 memo to Comm. Bradford from Tom Gibbon re: Udall Letter on Zimer with handwritten coments.
- 6. September 29, 1981 memo to CorEn Bradford from Tom Gibbon re: OIA Report on Zimer. .
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% UNITED STATES
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'*gj NUCt. EAR REGULATORY COMMISSION j I
.8 W ASHIN C7 ON, D.C. 20S55
% ***** aY I thrch 22, 1982 OFFCE OF TME SECRETARY
. l Mr. Thomas *Devine Government Accountability Project 1901 Que Street, N.W. IN RESPONSE REFER TO Washington, D.C. 20009 FOIA-82-A-lC (FOIA-81-488)
Dear Mr. Devine:
i This is in response to your January 29, 1982 Freedom of Information Act (FOIA) appekl of the denial of access to four documents relating to the Commission's deliberations on
~
the Office of Inspector and Auditor (OIA) Zimmer Report.
The Commission has reviewed the initial determination to
. withhold these documents in their entirety and hereby affirms that decision.
The four documents identified in the Appendix to this letter were created as a part of the comprehensive Commission deliberations on the quality assurance / quality control problems at the William H. Zimmer Nuclear Power Station.
l The OIA Report was not prepared, as you imply, to defend or justify the Office of Inspection and Enforcement (I&E) investigation. Rather, it constitutes a vital element in the Commission deliberations alluded to above. The memoranda and comments described in the Appendix reflect the' authors' advice, opinions and recommendations regarding the Commission resolution of the Zimmer matter. Withholding these documents is necessary to protect the uninhibited dialogue essential to the deliberative process. The draft letter (item No. 3) contains no factual information not also present in the letter dispatched to Congressman Udall, a copy of which you have been provided. The remaining documents contain no segregable factual po'tions. r e
Accordingly, all of these documents are being withheld in their entirety pursuant to Exemption (5) of the FOIA, 5 U. S.C. - 55 2 (b) (5) , and our regulations, 10 CFR 9.5 (a) (5) .
You also protest the " effective denial" of the bulk of your -
request, concerning informal records, drafts, and an explanation of any deletions. Our silence in this regard was intended to convey the message that no documents of this nature were retained in NRC files. 2 g sio?g- Vf . .
p e- ,- ,,-,m, - - - - ,-me-e -me---- - - - - , - - , - - , - , - - , - - - - ---$--
This letter represents the final agency action on your FOIA
. appeal. Judicial review is available in a federal district court irr the district in which you reside or have your
, . principal place of business, or in the District of Columbia.
. .Sincerel ,
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i kJ Samuel w-liilk Secretary of the Commission
~ '
Enclosure:
! Appendix - List.of Documents Withheld .
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APPENDIX
- l. October 29th draft letter to Congressman Udall with handwritten comments from Commissioner Bradford's off. ice at the top. 2 pages. .
- 2. October 30, 1981 memo to Chairman Palladino from Commissioner Bradford re: Proposed Draft Letter to Congressman Udall regarding Zimmer. 1 page.
- 3. October 21, 1981 memo to Commissioner Bradford from Legal Assistant Thomas R. Gibbon re: Udall letter on Zimmer, with handwritten comments. 1 page.
~
.4. - September 29, 1981 memo to Commissioner Bradford from Thomas R. Gibbon re: Public Release of OIA Report on Zimmer. 2 pages. .
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g g NUCLEAR REGULATO'RY COMMISSION ACTION - RES/NM55/AN
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Cornell March 23, 1982 Rehm
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Nuis en
. / ~ DeYoung MEMORANDUM FOR: William J. Dircks, Executive Director for Operations Denton
, Leonard Bickwit, Jr. , G~eneral Counsel GCunningham Carlton C. Xamerer, Director, Congressional Affairs
- reiten Joseph J. Fouchard, Dire ' , Public Affairs Philips '
Besaw FROM: Samuel J. Chilk, Secretar ,
Woolley
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SUBJECT:
STAFF REQUIREMENTS - AFFI nTION SESSION 82-g,10:00 A.M.,
THURSDAY, MARCH 18,1982,4 COMMISSIONERS' CONFERENCE ROOM,
.. D.C. OFFICE (OPENTOPUBLICATTENDANCE)
,I.
- SECY-81-707 - Dr. George V. Taolin's Petition (PRM-35-1) Regardine 10.CFR Part 35 " Human Uses'of Byproduct Material" The Comission, by a vote of 3-21 (Chairman Palladino, Comissioners Ahearne and Roberts approving; Comissioners Gilinsky and Bra,dford
. disapproving), approved a notice of proposed rulemaking which grants in pant a petition for'ruleinakifg bi Dr. Taplin for an exception from
, certain regulatory reqdrements for use of radioactive drugs. .
~ "
The Comi'ssion requested'thaij
- i. the~ notice of proposed'rulemaking (Enclosure 6 of the subject paper) be modified as in the'2/24/S2 NRR memorandum and be published in the. '
- Federal Recister; -
(RES)~ (SECY Suspense: 4/12/82) .
- 2. appropriate Congressional comittees be notified; (OCA/RES) (SECY Suspense: 4/12/82) -
- 3. a public announcement be issued; and
. '(OPA/RES) (SECY Suspense: 4/12/82)
=4. the Federal Register notice be distributed to affected medical .
licensees and to other interested persons.
(AE:5) (SECTSuspense: 4/26/82)
Ok)
SECY-82 Prooosed Rulemakino, )' Codes and ' Standards," 10 CFR 50.55a II.
The Comission, by a vote of 5-0 2, approved a notice of proposed rulemaking '
to modify the Codes and Standards rule (10 CFR 50.55a) by referencing ~
. ASME codes regarding construction of certain s'afety system components and by removing obsolete provisions no longer applicable. 3 .
For all footnotes, s,ee last page. -
.spp. .
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In connection with his approval on this paper, Comissioner Roberts noted that a misstatement of fact appears on page_7, first full sentence of -
=
Enclosure 1 to the subject paper, and requested the EDO to ex lain h'ow ]
this number was derived. (RES) (SECY Suspense: 3/29/82 'Av, 4 8M
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The Comission requested:
. 1. the notice of proposed rulemaking (Enclosure 1 of the subject paper) be modified: .
- a. as indicated in the correction. notice dated March 8,1982;
. 4
- b. by inserting the language in Attachment 1; and J
- c. by correef.ing the statement on page 7 referenced above and 3 revising the Regulatory Flexibility Statement if required;
' 2. the notice of proposed rulemaking be published in the Federal Recister; ;d (RES) (SECY Suspense: 4/)2/82) ,
=j
- 3. theEDOpublishtheamendmentsinfinaiform;ifnosignificant adverse ccmments or questions have been received on the notice of -
proposed rulemaking and no substantial changes in text are indicated; '
. (RES) (SECY Suspense: 7/12/82)
- 4. the appropriate Congressional comittees be notified;
.- .(OCA/RES) (SECY Suspense: 4/12/82)
- G
- 5. the FRN be distributed to power reactor licensees / permit holders, y-applicants for a construction permit for a power reactor, public interest groups, and nuclear steam system suppliers; and j
. (ADM/RES) (SECY Suspense: 4/26/82)- g -
- 6. the Chief Counsel for Advocacy of the Small Business Administration -
be' informed that the Co..nission has certified that this final rule -d will not have a significant economic impact upon a substantial -
number of small entities as required by the Regulatory Flexibility -
Act (5 U.S.C. 60S(b)). (PJd) (SECY Suspense: 4/12/82) . .
ADM .
IH.JEM--624c.-wev1neauiA20oeu4Ez=A-1D%'MtrerdTTEUTA Lir:merReccM%O -
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The Comission, by a vote of 4-03 (Comissioner Bra'dford not participating), d '
denied an appeal by Thomas Devine of the Government Accountability project for access to four documents relating to the Comission's deliber.ations. -
on the Office.of Inspector and Auditor's Zimer report. -
j The Comission requested that the Secretary dispatch a letter (Attachmerit 4 ]
to the subject paper) to Mr. Devine informing .him of the denial. S (Subsequently, the Secretary signed the letter.) .
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' IV. S'ECY-81-625. - Final Rule on Intransit Physical Protection of Soecial
- Nuclear Material of Moderate Strateoic Sionificance (10 CFR Part 73)
TheCoEmission,byavoteof4-03 (Commissioner Bradford not participating), .
- approved in final form amendments to 10 CFR Part 73 providing for improved '
early detection of theft of special nuclear material of moderate strategic significance while in transit. <
r The Commi'ssion requested that:
- 1. the amendments be modified as in the March 8,1982 OPE memorandum and be published in the Federal Reoister;
. (NMSS) (SECY Suspense: 4/30/82)
- 2. .Regulakory Guide 5.59 be amended'as necessary in accordance with the changes in the regulation; (NHSS/RES) (SECY Suspense: 8/31/82) ,
- 3. the appropriate Congressional committees be notified; '
(OCA/NMSS)' (SECYSuspense: 4/30/82) the final rule be distributed directly to affected licensees; and
. 4
. (ADM/TIDC) (SECYSuspense: 5/14/82) ,
- 5. the Chief Counsel for Advocacy 'of the Small Business Administration be informed that the Commission has certified that this final rule will not have a significant economic impact upon a substantial
^
number of small entities as required by sthe Regulatory Flexibility.
Act('5U.S.C.605(b)). (nH&i) (SECYSuspense: 4/30/82) -
'ADly .
Attachment:
Modifications to ~
SECY-82-74 <-
~
cc: Chairman Pallad.ino .
Commissioner Gilinsky .
Commissioner Bradford
--- Comnissioner Ahearne .
Commissioner Roberts Commission Staff Offices ACRS ASLBP .
- DCS-016 Phillips 6
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Sec' tion 201 of the Energy Reorganization Act, 42 U.S.C.15841, provides that action of the Comission shall be determined by a " majority vote of .
i the members present." Comissioners Gilinsky and Bradford were not .
present when this item was affirmed, but had previously indicated that they would disapprove. Had Comissioners Gilinsky and Bradford been present, they would have affimed their prior votes. According.; the formal vote of the Comission was 3-0 in favor, of the decision.
25ection 201 of the Energy Reorganization Act 42 U.S.C.15841, provides that action of the Comission shall be detemined by a " majority vote of the members present." Comissioners Gilinsky and Bradford were not .
present when this item was affirmed, but had previously indicated that -
they would approve. Had Comissioners Gilinsky and Bradford been present, they would have affirmed their prior votes. Accordingly, the formal
. vote of the Comission was 3-0 in favor of the decision. .
3 5ection 201 of the Energy Reorganization Act, 42 U.S.C.15841, provides tha.t action of the Commission shall be determined by a " majority vote of -
the members present." Comissioner Gilinsky was not present when this i
itsim was affimed, but had previously indidated that he would approve.
Had Comissioner Gilinsky been present,-he would ha've affimed his prior vote. Accordingly, the formal vote of the Commission was. 3-0 in favor -
, of pe decision. h;g E . -
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.- MODIFICATIONS TO SECY-82-74 .
a Add this paragraph after the last full paragraph on page 3 of 1.
Enclosure 1:
- Presently, other parts of the ASME Nuclear Code (Section III), not incorporated by reference in 550.55a cover metal containments, component supports, core support structures and concrete vessels.
It is the intent of the Comission to incorporate by reference all parts of the ASME Nuclear Code after appropriate evaluations and as adequate experience with use of each part of the code, confinn -
thei".r acceptability. .
- 2. Add this sentence after the first sentence of the first full paragraph on page 4 of Enclosure 1:
- These paragraphs are included only to define the boundaries of Class 2 and Class 3 systems and do not.necessarily relate to rules for assuring operability or inservice testing of components. .
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institute for Policy Studies 1901 Que Sueet. N.W. Woshington. D.C. 20009 (202)204 906:
'02 FEB -2 P4:Cl 1
January 29","r982 l i .
Mr. Samuel J. Chilk Executive Secretary APfEAL GF INITIAL- FOIA DECIS Office of Admin.
Nuclear Regulatory Commission
, , , g,,g gg Wasnington,.D.C. 20555 g /g gg y
Dear Mr. Chilk:
This is an, appeal pursuant to subsection (a) (6) of the Freedom of Information Act, as amended T5 U.S.C. 552). On Ncvember 23, 1981, on behalf of Mr. Thomas Applegate, we requested' copies of all notes,.
-memoranda, telephone logs, tapes, diaries and/or other records pre-pared by U.S. government employees in connection with an August 7, ,
.1981 Nuclear Regulatory Commission ("NRC") Office of Inspector and !
Auditor ("OIA") report entitled "Special Incuiry re: Adequacy of II Investigation 50-358/80-9 at the William H. Zimmer Nuclear Power Station." ("Zimmer OIA Report")', as well 'a's the investigation the 1
Zimmer OIA Report is based on. In addition, we asked for all earlier full or partial draf ts and/or proposed supplements to the Zimmer OIA Report,-as well as all records related to any deletions from its final version. (A copy is enclosed) . In connection with a letter dated December 31, 1981 and' postmarked January 4, 1982, Mr. J.M. Felton of your agency partially granted our request. (His response is enclosed) .
Mr. Felton's letter f ailed to cite any exemptions for the effective l denial of the bulk of our request, concerning informal records; :
earlier drafts and an e,xplanation of.any deletions. Instead, he simply ignored those portions of the request and failed to provide the documents without any explanation or citation. As a result, he vio-lated the requirement of Vauchn v. Rosen (I), 484 F. 2d 820 (D.C. Cir.
1 1973), cert. denied, 415 U.S. 977 (1977) to in'dex and justify any records withheld. he are condnced that the final version of the OIA report was not the only draf t, since press accounts quoted an "offidial close to the investigation" to the effect that "[t)he critical report
'was wa tered down. ' " (The Cincinnati Encuirer, November 18, 19 81, p.1) .
There is' little question that these record's are available under the Act. In Arthur Anderson, Inc. v. IRS, 514 F. Supp. 1173 (D.D.C. 1981),
the court held that numerous draf ts of revenue rulings,1.cswell_as E accompanying background information and notes were not exempt under exemption (5. The court reasoned that, those materials were generated j before the adoption of agency policy and they were not part of the deliberative give and take of the consultative procers. This is--
! clearly analogous to our case. The investigative records anf draf ts we are asking for are f actual in nature and are not part of the de-libera tive process.
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_a n a u 4 o-x s< w. a rv n V 2/3..1o OGC to Prepare Response for Signature of SECY...Date due: Mar 2 ,
.Cpys to: EDO, RF.. 82-81
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Page 2 If.,there were "any doubt, in Playboy Enterprises v. U.S. Dept. of Justice 516 F. Supp. 233 (D.D.C. 1981), the coart held that an internal F.3.I.
report concerning.F.B.I. agents who infiltrated the Klu Klux Klan in the 1960's was not exempt, even though it was used by the Attorney General to form policy. The evaluative report was considered information in nature and was not a part of the deliberative process. It only provided data to be evaluated by the Attorney General. The factual -
portions, including the first draf ts, did not reveal the' deliberative process of the Attorney General's office, our case . fits precisely into this catagory. What we are seeking concerns the entire factual record for the NRC investigation of Zimmer which~ Mr. Applegate challenged Mr. Felton has denied, under exemption vs, four documents identified. . .
as items 3-6 in Appendix 3 of his December 31, 1981 letter. Mr. Felton cha'racterized the records as " communications between Commissioners and their staffs" that " constitute advice, opinions, and recommenda-tions." Obviously his description was not all-inclusive, however.
Mr. Felton continued, "These cocuments contain no reasonably segre-gable factual materials and are, therefore, being denied in their entirety." There was no explanation for Mr. Felton's assertion that the non-exempt portions of the records are inseparable from the rest.
The courts have required a restrictive interpretation of exemption f 5.
As the Supreme Court stated in E.P.A. v. Mink, 410 U.S. 73 (1973),
"This exception (!5) to the general disclosure mandate of FoIA should be construed as narrowly as consistent with efficient government action."
Further, the burden-of-proof 'is on the agency to justify the exemption.
See e.g., Vaughn v. Rosen, 523 F. 2d 1144 (D.C. Cir. 1975 ) . .. .Mr .J Feldon 's asserted- conclusion does not even attempt to satisfy this burden.
The default is not surprising, since the exemption is inapplicable.
As the ' court held in Taxation v. IRS, 646 F. 2d 666, 677 (D.C. cir. 1981)
" Exemption i5 does not apply to agency actions which explain actions that 7.n agency has already taken." See also Ryan v. Department of Justice, 617 F.2d 781 (D.C. Cir. 1980) and Brinton v. Department of S ta t e , 636 F. 2d. C"O (D.C. Cir. 1980). The Zimmer CIA report was an attempt to evaluate and explain a previous NRC investigation and enforcement action, as presented in Report No. 50-358/80-09. As a result, exemption 4 5 does not apply to Commission-staf f communications concerning the report. .
Even if the withheld records concerned deliberations about prospective agency policy, exemption 45 would not apply to f acts, agency decisions, or existing agency policy, EPA v. Mink, 410 U. S. 73, 86 (1973). Jhat information can only be denied if it is " inextricably intertwined
- with cxempt portions, Ryan v. Department of Justice, 617 F. 2d 781, 790-91 (D.C. Cir. 19 8 0) . Mr. Felton of f erec no analysis why exempt portions of the Commissioners' memoranda could not simply be whited-out. We are cuite willing to appeal this denial to the courts for an in-camera review to. determine segrege.bility, Playboy v. U.S. Department of Justice, supra. .
( (
E'xecutive Secretary * ~
. of fice of Admin. .
-Nuclear Regulatory Comission Page 3 In conclusion, we are seriously concerned that the Comission may not have dealt in good faith with this FOIA request. Your response to this administra.tive appeal will determine whether we initiate a com-
. plaint under 5 U.S.C. Sec. 1206 (e) (1) (C) for an investigation of
" arbitrary and capricious withholding of information", as well as possible disciplinary action.
As provided 'in the Act, we will expect to receive a reply to, this cdministrative appeal letter within twenty working days.
Si carely, O , i .
homa &s Devs. .ne N N
- Associate Director
- [Iyhosenthal Staff Associate N. .
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1901 Que Street. N.W., Woshingion. D.C. 20009 (202)234 9362 '
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Office of Ad:rinistration '
Nuclear Regulatory Cw...ission Wa.shington, D.C. 20555
. . To 'rin::rn it May Ctncern: . . .- - -
On tahalf of our <-' 4ent,12. Ttxxnas Applegate, and pursuant to both the Freedczn of .InfacTnation Act (5 U.S.C. 5552) and the Privacy Act (5 U.S.C.
5552a), we reques copies of all notes, nesoranda, telephone logs, ta:es, ~
diaries and/or other records prepared by U.S. government e:rployees in connection with an August 7,1981 Nuclear Pegulatory Ccanission ("NBC")
Office of Inspector ard Auditor ("OIA") report entitled "Scecial Lcuiry re:
Adequacy of IE Investigation 50-358/80-9 at the William E. Z:urmer Nuclear
. Power S'.ation " ("Zimner CIA Reprt") , as well as the investigation the Zimner CIA Reprt is based upone -In particular, It. Applegate recuests all earlier full or partial drafts and/or proposed sgple: rents to the Zirner CIA Fe;crt, as well as all records related to any deletions fran its final version. If any material covered by this rectest has been destroyed '
and/or 'r~eT6~4d, please chirl'de~a11~stifrdunftydodifeFF.ation'in'cluding but not limited to a description of the acticn(s) taken, relevant date(s),
and justification for' the action (s) .
It. Applegate recuests that fees be waived, because " finding the
. infor: ration can be considered as primarily banefitting the general public." 5 U.S.C. S 552(a) (4) (A) . Tne fee waiver s'rould be grant.ed for three reasons. First, he schnits this request to further the goals of his F-i .- 10, 1980 whistlebicwing discl.csure to the Office of the Special
! Counsel of the Marit Systems Protection Board. The Special Co.:nsel required l an h% iruestigation only after firding a reasonable belief that be. Apple-l gate's disclosure evidenced illegality, mis::anage.wnt, gross waste and a substantial and specific d:utger to public health or safety. t.h ues-tiorably, the Special Ccunsel finding and the ensuing OIA Report - which fundrTentally challenges the generic nature of NBC investigations -
proves that it. Applegate's concerns serve "the public interest." He seeks these docments in oroer to nonitor the ada;uacy.of the Nic respcnse.
~
Second, the findings of the .'Zimrer CIA Fe;crt totally ignored t o vital issue:
in Mr. Applegate's whistleb1cwing disclosure -
- 1) tha failure to adecuate5y review his cririnal allegations of widespread black: arkets, snuggling, and theft; and l . .t. i i. . .,:.
! 2) the failure to ccntact witnesses in 7:ril 1980 wir would have: -
l ex:cred a series of issues sit: .. iths bafore GG rcised tha:n with the ca...ission and the Spo::ial Cicunsel.
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Noseter 23, 1981 .
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i 'Iha Special Cbursel had ordered the Cuu.iission to resprnd to heth allegations.
te doct. rents Mr. Applegate requests reay help to explain Sy the Can-issien
~
cMse to defy a legal requirement of the Civil Se.:vice Refonn Act.. We stirnit
-Jat it inherently serves the public in'erest to further understand the pecess that leads to governnant illegality.
cird, press accounts inve con'h charcus that the re: ort was "watared dcwn. " Although 6eleted portions woula not represent the Cu. 4ssion's findings, it is in the public interest to fully 2N the facts and c:repeting plicies
'in the debate that produced this controversial dormt. Se issue is of the utnest inportarce to the Arerican people - the adequacy of NBC efforts to protect public health and safety.
For any dccuments or portions of doctrnents that you deny due to a speific exemption, please provide an index i'mizing and describing doeurents or portions of documents withheld. 'Ihe index stould provide a detailed justification of your grounds for claiming each exemption,
. explaining why each exemption is relevant to the docujent or.pertion ,
withheld. Tnis index is required under Vaughn v. Bosen (I), 494 F.2d 820' (D.C., Ci.r.1973) , cart. denied, 415 U.S. 977 (1974) .
We icok forward to your response within ten wrkirg days. ,
Sincerely, ,
- vine Asscciate Director e
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- REGULATORY C. 20* 55 COMMIS(* N 5 {, j *
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%'.@..../ - December 31, 1981
.Mr. Thomas Devine Government Accountabili~ty Project -
1901 Que Street, N.W. -
IN RESPONSE REFER Washington, DC 20009 TO FOIA-81-488
Dear Mr. Devine:
i This is in partial response to your letter dated November 23, 1981, in which you requested, pursuant to the Freedom of Information Act, copies of documents prepared in connection with the Office of-Inspector and Auditor's report on IE's investigation of the Zimmer Nuclear Power Sta ti on. . ,
The sixteen documents listed on Appendix A to this letter are enclosed
. in thqir entirety. ,
Portions of document 1 of Appendix B contain the names of p'ersons the release.of which would constitute an unwarranted invasion of personal **
privacy and disclose the identities of confidential sources. These names are being withheld pursuant to exemption (7)(C) and (D) of the
-Freedom of Information Act (5 U.S.C. 552(b)(7)(C) and (D)) and 10 CFR 9.5(a)(7)(iii) and (iv) of the Commission's regulations. A portion of
. document 2 of Appendix B tontains the name of'a person the release of which would constitute an unwarranted invasion of personal privacy.
. This withholding is being made pursuant to exemption (7)(C) of the Freedom of Information Act (5 U.S.C. 552(b)(7)(C)) and 10 CFR 9.5(a)(7)(iii). ~
The non-exempt portions of these documents are enclosed. -
Documents 3 through 6 of Appendix B are communications between Commissioners and their staffs and constitute advice, opinions and recommendations.
These documents contain no reasonably segregable factual material and are, therefore, being withheld in their entirety. Release of this ,
information would tend to inhibit future comunications between and among Commissioners and their staffs, comunication which is essential
~to the delicerative process. This information is 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). -
Pursuant to *10 CFR 9.9 and 9.15 of the Comission's regulations, it has been determined that the information withheld is exempt from production
. or disc
- osure, and that its production or disclosure is contrary to the public interest. .The persons responsible for the denial of documents 1 and 2 of Appendix B are the undersigned and Mr. Richard C. DeYoung, Director, Office of Inspection and Enforcement. The person responsible for the denial of documents 3 through 6 of Appendix B is Samuel J. ::
Chilk, Secretary of the Commission.
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. The . denial by fir. DeYoung and myself may be appealed to the Executive
. Director for Operations within 30 days from the receipt.of this letter.
Any such appeal must be in wri. ting, addressed to the Executive Director for Operations, U.S. Nuclear Regulatory Comission,.-Washington, DC ~
20555, and should clearly state on the envelope and in the letter that it is an " Appeal from an Initial FOIA.Decisien." The denials by Mr. Chilk may be appealed within 30 days to the Commission and should be addressed to the Secretary of the Commission. -
Sin rely,
-l
. M. Felton, Director Division of Rules and Records
.. , Office of Administration ,, ,,
Enclosures:
As stated .
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APPENDIX A
- 1. Ikmorandum to G. A. Phillip from Y. Stello, Jr., dated 1/15/81 rc: Herit System Protection Board - Charges by IPS
- 2. Memorandum to V. Stello, Jr., from J. G. Keppler dated 1/12/81
-re: Zimmer - Government Accountability Project Request for Investigation by Merit Systems Protection Board Conce'rning liRC's Handling of Applegate Allegations.
- 3. Memorandum to V. Stello, Jr. , from J. G. Keppler dated 3/17/81
, . re: Investigation of Applegate Allegations Related to Zimer, s
- 4. Handwritten notes by K. Ward dated 9/81- ,-
- 5. ' Memorandum to J. G. Keppler from J. E. Foster dated 9/21/81 re: ~
Supplementary Coments on OIA Repor.t. . -
6.
Memorandum to file from J. R. Sinclair dated 2/5/81 re: Investigations of IE Efforts Pertaining to Investigations of Alleged Construction
,. Deficiencies at the Zimmer Nuclear Facil,ity (Applegate) .
- 7.- Memorandum to J. G. Xeppler from R. A. Fortuna dated 1/29/81 re:
' Confidentiality and Restriction of Infor:r.ation Forwarded by the.
Office of Inspector and Auditor
- 8. Memorandum to Chairman Ahearne from J. J. Cumings re: Thomas W.
Applegate Allegations 9.
Memorandum to W. J. Dircks from N. J. Palladino dated 9/4/81 re:
OIA Report -
- 10.. Memorandum to J. J. Cumings from N. J. Palladino dated 10/2/81
, re: CIA Report -
11.
Memorandum to W. J. Dircks from N. J. Palladino dated 11/16/81 t
re: 01A Report .
- 12. Memorandum to Comission from J. J. Cummings dated 8/6/81 re: OIA Special Inquiry . .
- 13. l.etter to A. M. Tracey from J. J. Cummings dated 8/17/81 re: OIA Report .
2
- 14. Memorandem to V. J. Stello from J. J. Cumings dated 2/10/81 re:-
Transfer of Docum ntation Provided By Government Accountability Project (2/9/81)
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4 APPENDIX A .
. 15. -Memorandum to J. G. Keppler from G. A. Phillip undated re:
Coments on 01A Report .
- 16. Memorandum to J..G. Xeppler from J. E. Foster dated 9/3/81 re:
01A' Report' .
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APPENDIX B
' 1. Memorandum to files from G. A. Phillip dated 12/15/80 re: Zinner
. . Piant - Allegations.
- 2. OIA Report Chronology by Foster.
- 3. October 29th draft letter to Ud,all with handwritten comments ffom Commissioner Bradford's Office at the top.
- 4. October 30, 1981 memo to Chairman Palladino from Comm. Bradford re:
Proposed Draft Letter to Cong. Udall Regarding Zic=er.
- 5. October 21, 1981 memo to Comm. Bradford frein Tom Gibbon re: Udall
' Letter on Zimer with handwritten cements.
- 6. September 29, 1981 memo to Comm. Bradford from Tom Gibbon re: OIA Report on Zimer. .
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C'n behalf of our "Hent, Mr. Ihomas Applegata, and pursuant to both the Im2:rn of Infacnation Act (5 U 5.C. 5552) a:xi 1m Privacy Act (> U.S.C. .
5552a),, we .w copies of all notes, ner:cranda, telephone legs, tapes, .
diaries and/cr other records prepared by U.S. government e:rployees in connection with an August 7,1981 Nuclear Pegulatory Ccretrission ("NRC")
office of Inspe-.sr and Auditor ("oIA") report entitled "Seecial Irrn.:iry re:
M.equacy of IE Investigation 50-358/80-9, at the William E. Z2.mner Nuclear Pcwer Station " ("Zi.rner CIA Bayert") , 'as well as the investigation ths
- 2 -Zirrner on Bepor. is based upon. In partic"b, Mr. Applegate requests all
' ' earlier full ce partial drafts at:.8./or proposed supple:nents to the Zirmur
' OIA Report, as well as all records related to any deletions fran its final version. If any material covered by this request has been destroyed and/or remsvai, please provide all swunding doc.:nentation including e
h:t not li:rited t:s a h-4ption of the action (s) taken, relevant date(s),
- a:xi jus-"!r* tion fcr the action (s) .. ..
Mr. Applegata requests that fees he waived, because " finding the info:: ation can be c=nsidered as prl rarily 1:enefitting the general public." 5 U.S.C. 5 552(a)'(4) (A) . The fee waiver sh::uld he granted for three reasons. First, he admits this request a fur .her the goals of his c
'+- 10, 1980 wh!stleblewing disclosure to the Cffice of the Sxcial Counsel of the Marit Systems Protection 3 card. 'Ibe Special Cocnsel required
- an NPC irrastigation only after finding a reasonable belief that Mr. and Arple-gate's disc 1csure evidenced illegality, mis
- ranage: rent, gross waste a substantial and specific dnager to public health or safety. L W s-tionably, the Special Ccunsel finding and thz ensuing OIA Be;ert - which -
fundanentally challenges the generic nature of NBC investigations He - seeks pro'Jv.s that Mr. 7pplegate's c::ncerns serve "the public interest."
~
these doctrnents in order to nonitor the an:cuacy. of the NIC respense. ,
Second, the firriings of the di:mer CIA Beport totally ignored e,,o vital issus in Mr. Applegate's whistleblcwing disclosure -
i
- 1) the failure to adaquately review his' criminal allegations of widespread blac!cr.srkets, s::uggling, and theft; a:xi
- 2) the failure to ecntact witnesses in April 1980 wtc st:::uld h:vdi exposed a scrics of issues six ncnths 6: fore G\P raised th:=
with the ca...ission and the special Counsel.
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POLICY ISSUE (Affirmation)
For: ' The Commissioners Frcm: Leonard Bickwit, Jr. -
General Counsel
Subject:
DEVINE FOIA APPEAL (82-A-1C) REGARDING OIA ZIMMER REPORT Discussion: Thomas Devine, of the Government Accountability Project (GAP) and on behalf of Thomas Applegate, has appealed the initial response,to his Freedom of Information Act (FOIA) request for records relating to the CIA Zi=mer Report. Mr. Devine's appeal focuses on four documents which originated in Co= mission Bradford's office and were withheld pursuant to Exemption (5) of the FOIA, and on the failure to either identify or explain the absence of draft versions of the OIA report.
The documents which originated in Commissioner Bradford's office were c
addressed in a recent FOIA appeal and l
the decision to withhold was affirmed (See Lowenstein Appeal, SECY-81-703).
We see no reason to alter that decision in'the present case. Each of the i
documents was withheld in its entirety pursuant to Exemptien 5. The memoranda and ce==ents listed in the Appendix.to l
the proposed response reflect the author's advice, opinions, and CONTACT: Richard Parrish, OGC f
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recommendations regarding the Commission resolution of various aspects of the _
Zimmer matter. Withholding these documents is necessary to protect the ;
uninhibited dialogue essential to the ~
deliberative process. Any factual 3
material contained in these records is already on the public record and need not be segregated and released here. m ll Mr. Devine also appeals the " effective
- denial of the. bulk of (his) request, concerning informal records, earlier drafts and an explanation of any ,
deletions (from the final OIA report)." s consistent with OIA practice, draft -
li versions of the report were not retained in their files. They were disposed of ;
prior to the receipt of any*FOIA request, a practice which in no way i' contravenes our statutory obligations. i Therefore, all reasonably identifiable .
material relating to Mr. Devine's 4 request was identified and addressed in d NRC's initial response. The FOIA ;
imposes no legal obligation to justify 2 the absence of draft reports or to ,
create documents explaining agency action in this regard. See NLR3 v. 5 Sears, Roebuck & Co., 421 U.S. 132, _g 161-162, 44 L.Ed.2d 29 (1975). i Finally, Mr. Devine argues that the CIA , 3 report and related materials represented a Commission attempt to evaluate and ;
explain previous NRC action and are ,"
therefore not withholdable under Exemption (5). If the premise of this
- statement were true, it would be a valid comment because a distinct deliberative ;
process must be identifiable to support .
this basis for. exemption. However, we 8
believe the CIA report was prepared not to justify.or explain completed I&E i action, but to investigate its i The OIA report and related e sufficiency.
documents contributed to Commission i deliberations on the adequacy of the I&E q
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3 investigation and therefore fall within the p'rotection of Exer.ption (5) . .
. Recommendation: Authorize the Secretary to sign and dispatch the attached letter denying the appeal. ,
f.
s ~ -
Leonard Bickwit, Jr..
. General Counsel Attachments:
- 1. FOIA request dtd November 23, 1981
- 2. NRC response dtd December 31, 1981
- 3. FOIA appeal dtd January 29, 1982
- 4. Draft response to appeal l Comissioners' coments' or consent should be provided directly to the Office of the Secretary by c.c.b. Monday, March 15, 1982.
Comission Staff Office coments, if any, should be submitted to the Comissioners NLT March 8,1982, with an information copy to the Office of the Secretary. If the paper is of such a nature that it requires additional time for analytical review and coment, the Comissioners and -
the Secretariat should be apprised of when coments may be expected. -
This paper is tentatively scheduled for affirmation at an open meeting during the week of March 15, 1982. Please refer to the appropriate Weekly Comission Schedule,when published, for a specific date and time.
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GOVERNMENT ACCOUNTADIUTY PROJECT institutelor Policy Studies -
190f Que Street. N.W., Woshington. D.C. 20009 (202)234 935.
- . . Noveice
- 23, 1981 Director office of Ad:ninistration Nuclear Regulatory Cc=:sission
- Washin;rton, D.C. 20555
. Tts Whczn it May Cricern: . . -
Crt M=1" of our e Hent, Mr. Ox: mas Applegate, and pursuant to 1:oth
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the Freed:m of Infec: nation Act (5 U.S.C. 5552) a:xi the Privacy Act (5 U.S.C.
5552a), we . w. copies of all notes, ne=oranda, telephone icgs, *p, diaries and/cr other records prepared by U.S. gover: rent e:rployees in connection with an August 7,1981 Nw-1==r Pag"1 story Cc=rrission ("NRC")
Office of Inspector and Auditer ("OIA") report entitled "Seecial Len:1 v re:
Adequacy of IE Investigation 50-358/8Q-9 at the W4'14"n R. Z2.mner Nuclear
. . Power Station " ("Zdmar CIA Peport"), as well as the investigatien the Zimner owamprt is based upen. -In par-4-1=v,.Mr. Applegate requests all earlier full er partial drafts and,/or prepsed supplere.e:s t6 the N m2 OIA Paport, as well as all records : elated to a:rf deletiens frcm its final version. If a:r.( ratarial c=verad by this rereest has been destroyed
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and/o:b r'errnef, please -M:: Eda al1~s.'.93t$62.V. d5E:6eiEation'includi:g .
t but not limitad to a des::ripticn of the actien(s) taken, relevant date(s),
and jus"4"imtica for the action (s) .
Ic . Applegate recuart:s that fees be waived,1:ecause "f**%g the infor: ration can be cc=sNed as pri.arily benefitting the general public." 5 U.S.C. S 352(a) (4) (A) . The fee waivar s'culd be 7:a:ead for i
three reasons. First, he r.:1rcits this reque.sc to further tha goals of
, his Decurrber 10, 1980 whistlebicwing disclcsure to th office cf the Special Co-=el of ths Merit Systems P:ctaction Scard. The Special Counsel required an NBC i.:vestigation only after finding a reasonable belief dat Mr. Apple-gata's disclosure eviden::ed illegality, risreanagement, 3..ss waste and a substantial and specific dnagier to public health or safetf. Dques-tionably, the Special co=1 finding and th ensuing OIA Peport - w..ich fundananta.lly challenges the generic nature of NPC investigaticns -
! proves that Mr. Applega .e's ex.ce==s serve "the public interest." He seeks' these documents in order '.c conitor the adequacy. of the Nr respcnse.
Seccnd, the #4*m.s of the Zi:::rer 02A Bepr:: totally igacred e,c vital issus in Mr. Applegate's whistlebicwing disclosure -
- 1) the failure to adeguately review his cri:cinal allegations of videspreal b12-kra:kets, sm.:ggling, and t%ft; and
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- 2) the failure to ecntact witnesses in April 1980 who would have exposed a series of issues si.~. .. .ths before GG T.ised tham wii.h the C ...issien and the S-W m' Cce:.sel.
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office of Ad:niristratien . ~
Mear Begulatory Ca:r 4 uinn Novemt:er 23, 1981 .
Page 2%c ce Special Cbt.msel had ordered the C::mrission to resp:nd to both =e-ations.
, ce dec=:ents Mr. Apolegate reqcests ray help to exp124n why the Carlssica
' ctose to cafy,a legal rpnment of the Civil service Refc=a Act. We s"'-it that it inherently serves the public interest to further undersmd the process that leads to seve_ m.t illegality.
Bird, press accee.ts have contained charges that the re;crt was '%ata..nnd d:un." Although deleted po:tions woula net represent the Cu .issien's firr*i qs, it is in the public i=tarest to fully air the facts and c:=peting policies in the debate that produced this cent ==versial doc.=ent. Be issue is of the
- 12. rest impcetarre to the Icarican pa ple - the aiegancy of NaC afferts to p:otect public health and safety.
B:e any do:c:ents or pertions of docr:ents that you deny due to a spe:ific exenptien, please previde an index i' miring and descr4M g d:::cr: ants or portions of dccr: ants v_thheld. De index sSculd p:= vide a detailed justification of your gree /s for clatring each execption,
. explaining why each exgion is relevant to the doc.:jent er.pertion withheld. Tr.is index is requir,n:8. urA=* Vaughn v. Posen (I), 484 F.2d 820 (D.C. Cir.1973) , cart. denied, 415 U.S. 977 (197,4) .
We lo::k forward to your respense within ten worki.rg days.
O Sincerely, 2:cras Devine Associats Director e
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(og UNITED STATES y a ' NUCLEAR REGULATORY COMTAISSION g ;ja -
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December 31, 1981 Mr. Thomas Devine Government Accountability Project ,
1901 Que Street, N.W. ' IN RESPONSE REFER Washington, DC 20009 TO FOIA-81-488
Dear Mr. Devine:
This is in partial response to your letter dated November. 23,1981, in which you requested, pursuant to the Freedom of Information Act, copies of documents prepared in connection with the Office of Inspector and Auditor's report on IE's investigation of the Zimmer Nuclear Power Station.
The sixteen documents listed on Appendix A to this letter are enclosed in their entirety.
Portions of document 1 of Appendix B contain the names of p'ersons the -
r'elease of which would constitute an unwarranted invasion of personal privacy and disclose the identities of confidential sources. These names are being withheld pursuant to exemption (7)(C) and (D) of the Freedom of Information Act (5 U.S.C. 552(b)(7)(C) 3and. (0)) and 10 CFR 9.5(a)(7)(iii) and (iv) of ths Comission's regulations. A portion of document 2 of Appendix B contains the name of a person the re' lease of which would constitute an unwarranted invasion of personal privacy.
This withholding is being made pursuant to exemption (7)(C) of the Freedom of Information Act (5 U.S.C. 552(b)(7)(C)) and 10 CFR 9.5(a)(7)(iii).
The non-exempt portions of these documents are enclosed. -
, Documents 3 through 6 of A;ipendix B are comunications between Comissioners and their staffs ~ and constitute advice, opinions and recomendations.
These do;:uments .contain no reasonably segregable factual material and are, therefore, being withheld in their entirety. Release of~this information would tend to inhibit future communications between and among Commissioners and their sta'ffs, communication which is essential to the deliberative process. This information is 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). , -
Pursuant to"10 CFR 9.9 and 9.15 of the Comission'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 persons responsible for the denial of documents 1 and 2 of Appendix B are the undersigned and Mr. Richard C. DeYoung, Director, Office of Inspection and Enforcement. The person responsible for the denial of documents 3 through 6 of Appendix B is Samuel J. ::
Chilk, Secretary of the Commission.
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-Mr. Thomas Devine ,
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The denial by !!r. DeYoung and myself.may be appealed to the Executive Director for Operations within 30 days' from the receipt of this letter.
. Any such appeal must be in writing, addressed to the Executive Director for Operations, U.S. Nuclear Regulatory Comission, 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 denials by Mr. Chilk may be appealed within 30 days to the Comission and should be addressed to the Secretary of the Comission.
sin rely, i l
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. M. Felton, Director
' Division of Rules and Records
. Office of Administration .. , ,
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Enclosures:
As stated .
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Re: FOIA-81-488 APPENDIX A
- 1. I::morandum to G. A. Phillip from V. Stello, Jr., dated 1/16/81 rc: Merit System Protection Board - Charges by IPS
- 2. Memorandum to V. Stello, Jr., from J. G. Keppler dated 1/12/81 re: Zimmer - Government Accountability Project Request for Investigation by Merit Systems Protection Board Conce'rning !!RC's.
Handling,of Applegate Allegations.
- 3. Memorandum to V. Stello, Jr. , 'from J. G. ,Xeppler dated '3/17/81
're: Investigation of Applegate Allegations Related to Zimer.
- 4. Handwritten notes by K. Ward dated 9/81' *
- 5. Memorandum to J. G. Keppler from J. E. Foster dated 9/21/81 re:
Supplementary Coments on OIA Repot t .
6 Memorandum to file from J. R. Sinclair dated 2/5/81 re: Investigatter.s of IE Efforts Pertaining to Investigations of Alleged Construct 1on Deficiencies at the Zimmer Nuclear Facility (Applegate?
- 7. ' Memorandum to J. G. Xeppler from R. A. Fortuna dated'i/29/8[re: '
Confidentiality and Restriction of Information Forwarded by the l Office of Inspector and Auditor
- 8. Memorandum to Chairman Ahearne from J. J. Cu=ings re: Themas W.
Applegate Allegations
- l 9. Memoranduni to W. J. Dircks from N. J. Palladino dated 9/4/81 re:
i OIA Report
, 10. . Memorandum to J. J. Cumings from H. J. Palladino d:ted 10/2/81 re: OIA Report
- 11. Memorandum to W. J. Dircks from N. J. Palladino dated 11/16/8i
.re: DIA Report '
- 12. Memorandum to Comission from J. J. Cummings dated 8/6/S1 ra: OIA Special Inquiry .
- 13. Letter to A. M. Tracey from J. J. Cumings dated 8/17/81 re: OIA Report .
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- 14. Memorandum to V. J. Stello from J. J. Cumings dated 2/10/81 re:
Transfer of Documentation Provided By Gpyr.rnment Accountability Project (2/9/81) ,
APPENDIX A , ,
- 15.
Memorandum to J. G. Keppler from G. A. Phillip undated re:
Coments on OIA Report
- 16. Menorandum to J. G. Xeppler from J. E. Foster dated 9/3/81 re:
01A Report
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Re: F01A-81-488 1
. APPENDIX B ,
4 1. Memorandum to files from G. A. Phillip dated 12/15/80 re: Zimer Plant - Allegations.
- 2. OIA Report Chronology by Foster.
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- 3. October 29th draft letter to Udall with handwritten comments ffem Comissioner Bradford's Office at the top.
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- 4. October 30, 1981 memo to Chairman Palladino from Com. Bradford re: l Proposed Draft Letter to Cong. Udall Regarding Zimer.
- h. October 21, 1981 memo to Com. Bradford from Tom Gibbon re: Udall Letter on Zimer with handwritten coments.
. 6. September 29, 1981 memo to CoEn. Bradford from kom Gibbon re: OIA Report on Zimer.
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GOVERHMENT ACCOUNTABluTY PROJECT : r. - . .-
Institute for Policy Studies , .
1901 Gue 5:reet. N.W., Washington. D.C. 20009 (202)234 938'
'!I .O -1 rj January 29'," 1982 1
- Mr. Samuel J. Chilk .
Executive Secretary ,
Office of Admin.
Nuclear Regulatory Commission
- Washington, D.C. 20555
Dear Mr."Chilk:
This is 'an appeal pursuant to subsection (a) (6) of the Freedom .
of Information Act, as amended (5 U.S.C. 552). On November 23, 1981, ;
on behalf of Mr. Thomas Applegate, we requested copies of all notes,.
memoranda, telephone logs, tapes, diaries and/or other records pre-pared by U.S. government employees in connection with an August 7, 1981 Nuclear Regulatory Commission ("NRC") Office of Inspector and Auditor ("OIA") repcrt entitled "Special Incuiry re: Adequacy of II Investigation 50-358/80-9 at the Williap E. Zimmer Nuclear Power Station. " ("Zimmer OIA Report"), as well as the investigation the Zimmer CIA Report is based on. In addition, we asked for all earlier full or partial draf ts and/or proposed supplements to the Zimmer CIA.
Report, as well as all records related to any deletions from its .
final version. (A copy is enclosed) . In connection with a letter dated
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December 31, 1981 and postmarked January 4, 1982, Mr. J.M. Felton of your agency partially granted our request. (Eis response is enclosed).
Mr. Felton's letter failed to cite any exemptiens for the effective denial cf the bulk of our request, c.oncerning informal records; :
earlier drafts and an explanation of any deletions. Instead, he
- simply ignored those portions of the request and failed to provide the documents without any exmlanation or citation. As a result, he vio-lated the' requirement of Vaughn v. Rosen (I), 484 F. 2d S20 (D.C. Ci~r.
1973), cert. denied, 415 U.S. 977 (1977) to index and justify any records withhalc. We are convinced that the final version of the CIA report was not the only draft, since press accounts quoted an " official close to the investigation" to the effect that "(t]he critical report
'was watered down.'" (The Cincinnati Encuirer, November 18, 1981, p.1).
There is little question that these records are available under the
. Act. In Arthur Anderson, Inc. v. IRS, 514 F. Supp. 1173 (D.D.C. 1981),
the court held that numerous draf us of revenue rulings,s.as..vell_as accompanying background informatien and notes were not exempt under exemption #5. The court reasoned tha't those materials were generated before the adoption.of agency policy and they were not part of the deliberative give and take of the consultative process. This is clearly analogous to our case. The investigative records and drafts we are asking for are f actual in nature and are not part of the de-liberative process.
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Executive Secretary Office of Admin.
- Nuclear Regulatory Ccmmission Page 2 If. there were any doubt, in Playboy Enterprises .: U.S. Dept. of Justics
- 516 F. Supp. 233 (D.D.C. 1981). the court held that an internal F.3.I.
report concerning F.3.I. agents who infiltrated the Klu Klux Klan in the 1960's' was not exempt, even though it was used by the Attorney General to form policy. The evaluative report was considered informatic
.in nature and was not a part of the deliberative process. It only pro'.*ided~ data to be evaluated by the Attorney Ganeral. The factual -
portions, including the first draf ts, did not reveal the deliberative process of the Attorney General's office. OUr case fits precisely into this catagory. What we are seeking concerns the entire f actual record for the NRC investigation of Zimmer which Mr. Applegate.challengt Mr. Felton has denied, under exemption 15, four documents identified .
as items 3-6 in Appendix 3 of his . December 31,1981 letter. Mr. Felton characterized the records as " communications between Commissioners and their staff s" that " constitute advice, opinions, and reco=menda-tions." obviously his description was not all-inclusive, however.
Mr. Felton continued, "These documents contain no reasonably segre-
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gable factual materials and are, therefore, being denied in their entirety." There was no explanation for Mr. Felton's assertion that the non-exempt portions of the records are inseparable from the rest.
The courts have required a restrictive interpretation of exemption #5.
As the Supreme Court stated in E.P.A. v. Mink, 410 U.S. 73 (1973),
"This exception (#5) to the general disclosure mandate of FoIA should
'he construed as narrowly as consistent with efficient govern =ent action.
Further, the burden-of-proof is on the agency to justify the exemption.
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See e.g., Vaughn v. Rosen, 523 F. 2d.1144 (D.C. Cir. 1975). .Mr.- Feldon
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isserted conclusion does not even attempt to satisfy this burden.
The default is not surprising, since tha .xemption is inapplicable.
As the court held in Taxation v. IRS, 64o F. 2d 666, 677 (D.C. Cir. 198.'
" Exemption #5 does not apply to agency actions which explain' actions that an agency has alr'eady taken." See also Ryan v. Department of Justice, 617 F . 2d 7 81 ( D .C . Cir . 19 8 0) anc Brinton v. Department of State, 636 F. 26. 600 (D.C . Cir . 19 8 0) . The Zimmer CIA report was an attempt to evaluate and explain a previous NRC investigation and enforcement action, as presented in Report No. 50-358/80-09. As a result, exemption #5 does not apply to Commission-staff communications concerning the report. .
Even if the withheld records concerned deliberations about prospective agency policy, exemption #5 would not. apply to facts, agency decisions, or existing agency policy, EPA v. Mink, 410 U.S. 73, 86 (1973) .2 That information can only be denied if 1: 1s " inextricably intertwined" with exempt portions ~, Ryan v. Department of Justice, 617 T. 2d 781, 790-91 (D.C. Cir. 19 8 0) . Mr. Felton offerec no analysis why exempt portions of the Ccamissioners' memoranda could not simply be whited-out. We are quite willing to appeal this denial to the courts for an in-camera review to determine segregability, Playboy v. U.S. Department of Justic supra.
Fixecutive Secretary
- N .,0ffice of Admin.
. Nuclear Regulatory Comission .
Page 3 .
In conclusion, we are seriously concerned that the Comission may not have dealt in good faith with this FOIA request. Your response to this administrative appeal will date:mine whether we initiate a com-plaint under 5 U.S.C. Sec. 1206 (e) (1) (C) for an investigation of arbitrary and capricious withholding of informa. tion", as well as possible disciplinary action.
As provided in the Act, we will expect to receive a reply to t.kis administrative appeal letter within twenty working days.
Siacerely, ,'3 ,
f.ep Q k's.,%!
Ihomas Deva.ne Associate Director
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, CO j j y senthal Staff Associate.
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I Mr. Thomas Devine Government Accountability Project .
1901 Que Street, N.W. IN RESPONSE RITER TO Washington, D.C. 20009 FOIA-82-A-lc (FOIA-81-488)
Dear.Mr. Devine:
Ihis is in response to your January 29, 1982 Freedom of Ir. formation Act (FOIA) appeal of the denial of access to l
four documents relating to the Commission's deliberations on the Office of Inspector and Au itor (OIA) Zi=mer Report.
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The Commission has reviewed the initial determination to withhold these documents in their entirety and hereby affirms that decision.
The four documents identified in the Appendix to this letter.
were created *as a part of the comprehensive Commission
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deliberations on the quality assurance / quality control problems at the William H. Zimmer Nuclear Power Station.
The CIA Report was not prepared, as you imply, to defend or justify the Office of Inspection ~and Enforcement (I&E) 1.nvestigation. Rather, it constitutes a vital element in the Commission deliberat' ions alluded to above. The memoranda and comments described in the Appendix reflect the
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authors' advice, opinions and recommendations regarding the Commission :esolution of the Zimmer matter.
Withholding these documents is necessary to protect the uninhibited dialogue. essential to the deliberative process. The draft
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2 letter (item No. 3) contains no factual information not also present in the letter dispatched to Congressman Udall, a copy of which you have been provided. The remaining documents contain no segregable factual portions.
Accordingly, all of these documents are being withheld in .
their entirety pursuant to Exemption (5) of the FOIA, 5 U.S.C. 552 (b) (5) , and our regulatio:.s, 10 CFR 9.5 (e) (5) .
You also protest the " effective denial" of the bulk of your request, concerning informal records, drafts, and an explanation of any deletions. Our silence in this regard was intended to convey the message that no documents of this niture were retained in NRC filas. . .
This letter represents the final agency action on your FOIA i
appeal. Judicial review is Ivailable in a federal district court in the district in which you reside or have your principal place of business, er in the District of Colu=bia.
Sincerely, Samuel J. Chilk '
Secretary of the Commission
Enclosure:
Appendix - List of Documents Withheld i
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APPENDIX
- 1. October 29th draft le'tter to Congressman Udall with
. handwritten comments from Commissioner Bradford's office at the top. 2 pages.
- 2. October 30, 1981 memo to Chairman Palladino from ,
Commissioner Bradford re: Proposed Draft Letter to Congressman Udall regarding Zimmer. 1 page.
3'. October 21, 1981 memo to Commissioner Bradford from Legal ~ Assistant Thomas R.. Gibbon re: Udall letter on Zimmer, with handwritten co=ments. 1 page.
. 4. September 29, 1981 memo to Commissioner Bradford from Thomas R. Gibbon re: Public Release of OIA Report on Zimmer. 2 pages.
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