ML20137K043
Text
t s
JAN 22 E Ms. Billie Pirner Garde Citizens Clinic Director Government Accountability Project IN RESPONSE REFER 1555 Connecticut. Avenue, NW TO F01A-85-19, Suite #202
'F01A 85-33, AWD Washington, DC 20036 FOIA-85-34
Dear Ms. Garde:
This is in regard to~your letters dated Jrnuary 11,14 and 15,1985, in which you requested, pursuant to the Freedom of Information Act (FOIA), co)ies of all records related to the " overview, regulation, and investigation of tie Comanche Peak nuclear plant by any person, branch, or department of the NRC since January 9,1984."
In light of recent conversations between you and NRC staff members in which you expressed your interest in records related to the current Comanche Peak Task Force activities, we are interpreting the " investigation" as wet of your requests as covering records related to the NRC Comanche Pea ( Task Force which was established in March 1984. We have asked the NRC staff to begin searching for all Comanche Peak Task Force documents subject to your requests.
With respect to the " overview" and " regulation" aspect of your requests, we have detennined, after car:ful consideration, that these portions of your requests do not " reasonably describe" the records sought, but, rather, are broad, sweeping, indiscriminate requests for production, lacking reasonable specificity. As such, +'est portions of the requests fail to meet the threshold requirements of the F01A (5 U.S.C. 552(a)(3)).
It is reasonable to assume that files located throughout various offices and divisions of the NRC contain records that might be considered as related to the overview or regulation of the Comanche Peak nuclear plant. We cannot, however, short of examining all NRC files, state with any degree of confidence that all subject records have been located.
The House Report on the 1974 amendment to the F0IA provides that:
"A ' description' of a requested document would be sufficient if it enabled a professional employee of the agency who was familiar with the subject area of the request to locate the record with a reasonable amount of effort." (H.R. Rep.No.93-876, 93d Cong.,
2dSess.1-6,1974)
As in'dicated above, much more than a reasonable amount of effort would be required to comply with your requests.
M
~ ~~ tmlE03010[ UUIl gJ_%
m
__ a
-~~--~~--
-+y
.e o,,,n..
,,,,c.n. n,.n..
+
Likewise, the Senate Report indicates that the.1974 amendments to the FOIA were not intended "to authorize broad categorical requests where it is impossible for the agency reasonably,to determine what is sought. (See trens v. Schuyler, 465 F.2d 608 (D.C. Cir.1972))...."
(S.. Rep. No. 93-854N Cong., 2d. Sess.
10,1974).
In view of the scope and r.ature of yo~ur requests,'the documentary material being sought, and the considerations expressed above, we conclude that your requests with regard to " overview" and " regulation" do.not meet the requirements of 5U.S.C.552(a)(3). However, as you are aware, the vast majority of the material related to these portions of your requests are routinely made available in the NRC Public Document Room as part of the Comanche Peak docket files.
If you consider this response to be a denial of your requests, you may appeal this determination within 30 days from the date of this letter. As provided in 10 CFR 9.11, any such appeal must be in writing, addressed to the Executive Director for Operations, U.S. Nuclear Regulatory Connission, Washington, DC 20555, and should clearly state nn the envelope and in the letter that it is an " Appeal from an Initial FOIA Decision."
We will comunicate with you again as soon as the Comanche Peak Task Force has conducted a search for and review of ary documents which may be subject to your requests.
Sincerely, n: ped (LW.M J. M. Felton, Director Division of Rules and Records Office of Administration DISTRIBUTION MR Rdg DRRSubj PGNorry ECShomaker LLRobinson DLMeyer JTCawley VNoonan DCrutchfield yh %
b AVietti gy 6
.pn,.h4 7, br W.
n
- u. u,
i ADmuRR Aumux6 a EQB N M U' 0
M..............H..R. R... "....N f
f.
W.
J.,
y.t..t..h...
.L,Robi ns.t.n.....
J t.on VNoonan E
iomaker
.pg g,g.
3 7
g~~...yygg.~..~.}.
.. ~. ~ ~
...I M M........
......................................s.....................
=ce....
c..u.
or,mia i n.cna,n
,.n.,,
a RECORDS EXEMPTED FROM DISCLOSURE A.
Exemption (1):
Records "(a) specifically authorized under criteria established by an Executive Order to be kept secret in tne interest.
- of national aefense or foreion policy, and (D) are in fact properly c.lassified pursuant to such Executive Order."
(E0 12356) i ss 1.
To withhold information from disclosure under Exemption (1), the infor _
- mation must be (a) classified in accordance with the criteria set forth in Executive Order 12356, and...
(b) classified by an authorized classifier.
~
~
2.
Classification legends are Top Secret, Secret, and Confidential.
" Official Use Only" is not a classification.
3.
All classified documents subject to FOIA requests must undergo a declassification review to segregate exempt classified information from nonexempt unclassified information. -
4.
Periodically, NRC offices will identify records which have not been properly gj.assified but which are thought to.cortain classified ir. formation.. When this occurs, the requester is notified that the records are being withheld pursuant to Exemption (1) pending a classi-fication review.
" Subsequent to the initial denial of the records pursuant to Exemption (1), the originating office conducts a declassification review of the documents. Upon completion of that review, nonclassified material is released to the requester unless it is withholdable under another exemption.
5.
Documents classified by other agencies (DOE, 000, etc.) have to be referred to those agencies for declassification review.
Particular problem with NSF Erwin where fuel used in naval propulsion program '
and classification based upon DOE guidelines.
6.
Courts have also adopted a " jigsaw puzzle" or " mosaic" approach allowing agencies to classify information, which is otherwise unclassified, if it covir' provide the "missin (Halperin
- v. CI A, 629 F. 2d 144 (1980)g link" to classified information,
).
Theory can also be used to protect a "coEiilation" of materials not otherwise classified in their component parts.
(Taylor v.,Oept of the Army, 684 F. 2d 99 (1982)).
e c
..4
[ECORDSEXEMPTEDFR0 O!SCLOSURE Records "(a) specifically\\ authorized under criteria
]
Exemption (1):
established by an Executive Order to be kept secret in tne interest.
A.
of national oefense or foreton policy, and(b) are in fact properly classified pursuant to such Executive Order." (E0 12356)
(
To withhold information from disclosure under Exemotion (1), the infor-mation must b4 (a) classified in accordanch with the criteria set forth 1.
~
in Executive Ord6,' 12356, and
~
(b) classified by an authorized classifier.
Classification legends are Top Secret Sec. ret, and Confidential.
2.
" Official Use Only" is not a classification.
All classified documents subject to FOIA requests must undergo a declassification review to segregate exempt classified information 3.
I from. nonexempt unclassified information.
Periodically, NRC offices will identify records which have not been j
properly g.lassified but which are thought to.contain classified 4.
information.. When this occurs, the requester is notified that fication review.
Subsequent to the initial denial of the records pursuant to Exemption (1), thei Upon
~
originating office conducts a declassification review of the documents.
1 completion of that review, nonclassified material is released to the requester unless it is withholdable under another exemption.
Documents classified by other agencies (00E, 000, etc.) have to be Particular referred to those agencies for declassification review.
5.
problem with NSF Erwin where fuel used in naval propulsion program and classification based upon DOE guidelines, Courts have also adopted a " jigsaw puzzle" or " mosaic" approach allowing agencies to classify "information, which is otherwise unciassified, if 3
6.
it could provide the missin link" to classified information.
(Halperin Theory can also be used to protect a
- v. CIA, 629 F. 2d 144 (1980)."coIEp'Ilation" of materials not otherwise cl (Taylor v.. Dept of_the Army, 684 F. 2d 99 (1982)).
parts.
O i
a
e
.g.
B.
Exemption (2): Records "which relate solely to the internal personnel rules and practices of an agency."
'~
1.
Exemption (2) may be utilized to exempt internal personnel rules and practices which do not significantly affect the public. The Senate Report on the FOIA cites as examples the use of parking facilities, the regulation of lunch hours, policy as to sick lease, and the like.
2.
House report is broader. It cover's " operating rules, guidelines, and manuals of procedure for government investigators." This exemption was used in the past to withhold Section II of the I&E Manual which specifies the inspection requirements at licensed facilities.
3.
I&E Manual now in PDR.
4.
Exemption (2), in recent cases, of little practical use to NRC, except,that it is still used to withhold testing materials such as clerical or typing tests.
8 W
- m e
e G
s e
e t
r-
.g.
C.
Exemption (3):
Records "specifically exempted from disclosure by statute provioed that sucn statute (a) recuires that tne matters be withheld f rom tne public in sucn a manner as to leave no discretion on the issue, or (b) establishes particular criteria for withholdino or refers to particular types of matters to be withheld."
1.
Exemption (3) is utilized as the authority to withhold " Restricted
'~
Data" f rom disclosure as required by Sections 141-145 of the Atomic" Energy Act of 1954, as amended (42_U.S.C. 2161-2165).
2.
Exemption (3) also used to protect safeouards information as a result of Section 147 being added to the. Atomic Energy Act on June 30, 1980.
3.
Under Section 147, NRC can protect information which specifically identifies a licensee's or applicant's detailed security measures for the physicai protection of special nuclear material, source material, or byproduct material if release of the information could reasonably be expected to have a "significant adverse effect on the health and safety of the public or the common defense and security by signifi-cantly increasing the likelihood of theft, diversion, or sabotage."
- 4., Examples Sf safeguards information which are. withheld are security plans, procedures, and equipment; safe havens; local law enforcement response times; radio frequency transmission data; departure times; and anything else that could reasonably be expected to significantly increase the likelihood of theft, diversion, or sabotage.
5.
problem areas-specific safeguard violations identified during inspections, unlocked coors, missing keys, etc.-- problems that go away when resolved.
6.
Section 147 specifically prohibits the NRC from withholding information pertaining to shipment routes and the quantities of shipments.
e 4
GL' C
D.
Exemption (4): Records "containing trade secrets and commercial or
~
financial 'information octained from a person and privileged or confidential." -
1.
Exemption (4) is utilized to exempt from disclosure information which
- ~
meets the following two tests:
s (a) the information is a trade secret or commercial or financial information, and (b) disclosure of the information must either (1) result in sub-stantial harm to the competitive position of the owner or (2) harm the government's ability to obtain information in the future. (National Parks Conservation Association v. Merton 498 F. 2d 765 (1974)).
2.
NRC deals basically with three types of proprietary information:
(a) Technical proprietary (b) Financial proprietary (costs, prices, lists of customers, etc.)
'(c)2.790[d)information:
(1)
Information received in confidence from a foreign source (ii)
Material control and accounting information
" -(iii) Physical security information at certain facilities 3.
If NRC disagrees with a proprietary claim, we normally negotiate the matter with the owner of the information.
4.
Owner of proprietah information has to show:
(a) Was submitted to the NRC in confidence.
(b) Is not available in public sources.
(c) Is normally treated as confidential by the company.
(d) Disclosure would cause substantial harm to the competitive position of the company.
5.
If NRC plans to rel, ease information claimed to be proprietary, the.
company is given two weeks notice in order to file in court for the i
injunction. The NRC then has to prove, through expert testimony, that release would not harm the competitive position of the company..
0
.- Y -------
J
p~
y 31 E.
Exemption (5): " Inter-agency or intra-aoency memorandums or letters which would not be available by law to a party in litioation with the agency."
1.
To exempt a record from disclosure utilizing Exemption (5), the record.
must normally be either:
(a) an inter-agency memorandum or letter (i.e. memorandum or lettFr
~
transmitted from one Federal., agency to another), or
.(b) an intra-agency memorandum or letter (i.e. memorandum or letter transmitted from one person in an agency to another pierson in' the same agency).
~
2.
The purpose of the exemptions is to encourage the full, frank, and candid exchange of opinions needed for~ good decisionmaking.
It recognizes that the government cannot operate in a goldfish bowl.
- 3. 'Only that part of the record which contains predecisional advice, opinions,
'and recommendations of the staff given during a deliberative process, i.e., the process in which the agency makes its decision, can be
. exempted. -
4.
Segregation. Requirement: Factual information must be segregated from advice, opinions, and recommendations in predecisional documents except for drafts, certain legal work products, and records covered by the attorney-client privilege.
6
- 5. - As a practical matter, Exemption.(5) is seldom used now at the ' staff level-except for draft documents where the final has not been issued. The offices have recognized that it is easier to let documents go than to try and segregate facts, and there has been no noticeable effect of this policy on staff candor.
6.
Advice from a Commissioner's staff to the Commissioner is normally withheld.
1 7.
In some cases, it is also possible to withhold information under i
Exemption (5) even if the records were prepared by persons outside of i
the government. These cases recognize that in some situations the government may have a special need for the opinions and recommendations of temporary consultants who are experts in their field. If these consultations were (a) solicited by the agency and (b) are an integral I
part of the deliberative process, the inforsrtion may be withheld.
LRya_n v. Dept of Justice (D.C. Ct. of App..g nuary 7,1980) 8.
Cannot withhold document where the product purchased by NRC is a report or study. NRC will look to underlying contract for purpose--
are we purchasing a product or someone's special expertise and advict.
l t
l i
A.
F.
Exemption (6): Records "which are personnel and medical files and similar files, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy."
- ~
1.
It applies to the intimate and personal details of one's life, and covers information such as the legitimacy of children, medical condition, welfare payments, religious affiliations, school records, and the like.
2.
Where privacy information is found, the FOIA then requires a balancing of. interests between the protection of an individual's private affairs from unnecessary public scrutiny, and the preservation of the public's right to government information.
3.
The term " clearly unwarranted" contained in the exemption instructs an agency "to tilt the balance in favor of disclosure."
4.
Where misconduct by a government employee is involved, balance is tilted heavily in favor of disclosure.
Reason - Courts speak in terms of the public having "an interest in whether public servants carry out their duties in an efficient and law-abiding manner."
(Columbia Packing Co. v. Dept of Acriculture (563 F.
2d 495 (1977)).
5.
The following information about government employees is considered public information and is disclosed on request:
(a) Employee's name
~
(b) Present and past position titles
.(c) Present and past grades
('d) Present and past salary (gross salary - not net)
(e) Present and past duty stations 6.
The NRC, in response to a FOIA request by an unselected candidate on a vacancy announcement, will make available essentially everything on a SF 171 that deals with education, training, and qualificaticns for employment. We withhold personal information such as birthdates, SSN, home address, home phone number, personal references, and infor-s.
mation about relat,ives. We will also withhold an employee's perfor-'
mance evaluation.
7.
The right.to privacy is a personal right.
T'.tre is no right to privacy in a corporation.
(b 6
- 8.
There is also no right to privacy in a dead person. We have given out.
for example, the name and the amount of radiation exposure received by one who is deceased.
9.
If personal information about a dead person would harm the living,-it may be protected. Examples are--President Kennedy's autopsy repoct and photos, information concerning the. legitimacy of children, and information concerning the personal and family life of an organized cfine figure.
- 10. " Mosaic" theory, used for classified information, has also been used to withhold the names of drugs prescri'ed by the Congressional Physician b
even though the names of Members of Congress were deleted. Court said that with a working knowledge of the symptoms and purposes for which certain drugs are prescribed, the information could be the " missing link" for a person with fragmented knowledge about a Member's health (Arieff v. Dept of the Navy (Dist. Ct of D.C., April 27,1982).
ee e
W G
e e
h 9
o' 4
4Br O
s
T G.
Exemption (7):
Investicatory records "compiied for law enforcement purposes," (criminal, civil, or administrative) but only to the
~
extent that production of such records would:
(a). interfere with enforcement proceedings (app. lies to open cases"only'
' ~
and would result in substantial harm to government's case.)
Government must show, by more than a conclusory statement,'*how the
- * ~
particular kinds of records requested would interfere with a..
pending enforcement action. Material must show the scope, direction, and focus of the inquiry. Does not have to be done on a document-by-document basis.-(Campbell v. Dept of Health and Human Services, (D.C. Court of Appeals, June 25, 1982)).
(b) deprive a person of right to a fair trial or an impartial adjudication (can't use against person who is subject of investigation
' applies to 3rd parties only).
~
(c) constitute an unwarranted invasion of personal privacy (balancing test as in Exemption (6).
(d) disclose the identity of a confidential source and, in the :ase of a record compiled by a criminal law enforcement authority in the courte of a criminal investigation, or by an agency conducting a lawful national security intelligence investigation, confidential information furnished only by the confidential source ~(covers individuals, police files, and Federal and state grand jury informa-
~
tion).
(e) disclose investigative techniques and proceduces (designed to protect future effectiveness of procedures).
(f) endanger the life or physical safety of law enforcement personnel.
(used by FBI) 1.
Exemption (7) does not apply to routine inspections; however, it does apply to the so called "special inspections" conducted by the Regions.
2.
On a routine inspection, the " investigation" phase starts when evidence of possible wrongdoing is uncovered.
3.
Ask person at the' start of the interview if he wants to be a-confidential source and make a note of it on the record. Names of persons contacted'during routine inspections cannot be confidential source because inspection is not for law enforcement purpose.
1 i
. _. _... _.. _ _ _ _ _,. _ -... _. _. -., _. _. -.. _ _ _ _ - _,.. _. _ _ _,.,,._.,_,. m
t H.
Exemption (8): Records which relate to the regulation or supervision of financial institutions.
l.
The exemption is not applicable to the NRC.
I.
Exemption (9): " Geological and geophysical information and data'.
~
incluoina maps, concernina wells."
1.
Exemption (9) pertains primarily t'o information relating to oil and gas wells, and has been used on only one occasion by the NRC.
- es 9
e G
W
'e=
t 9
t O
e---
- p --
w
F.
. REMINDER (a) Segregation
- Must segregate exempt from nonexempt portions of documents.
- Cannot withhold entire document if just a portion is exempt.
(b) Public Interest Determination
- Even if record is exempt, NRC regulations require that a finding must also be made that release is " contrary to the public interest or will adversely affect the rights of an individual."
RELEASE TO CONGRESS 1.
FOIA specifically provides that the Exemptions may not be used to withhold information from the Congress.
2.
Must be in Congressman's representative capacity (Committee Chairman) rather than for personal use.
- 3.- NRC has given to Congress records containing personal information,
.I&E and OIA investigations, and proprietary information.
4.
Where records requested by Congress are exempt under FOIA, we notify Congress and request that records be maintained.in confidence.
s
?
w,
[
8 e
- m s
a
~+.
j.
~
,