ML20141A510
| ML20141A510 | |
| Person / Time | |
|---|---|
| Issue date: | 03/04/1986 |
| From: | Chilk S NRC OFFICE OF THE SECRETARY (SECY) |
| To: | Aftergood S COMMITTEE TO BRIDGE THE GAP |
| References | |
| FOIA-85-577, FOIA-86-A-2 NUDOCS 8604040494 | |
| Download: ML20141A510 (2) | |
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March 4, 1936 OFFICE OF THE SECRETARY Mr. Steven Aftergood Committee to Bridge the Gap 1637 Butler Avenue #203 Los Angeles, CA 90025
SUBJECT:
F0IA Appeal-A-86-2 (F01A-85-577)
Dear Mr. Aftergood:
This responds to your letter of January 9,1986 appealing the NRC's denial of the two documents in its letter to you of December 13, 1985.
The Commission has decided to 6ffirm its action on the initial request for the reasons stated below. Accordingly, your appeal is denied.
The two documents you requested are exempt from release pursuant to 5 U.S.C. 9 552(b)(5). Exemption 5 protects from disclosure
" inter-agency or intra-agency memorandums or letters which would not be available by law to a party other than an agency in litigation with the agency." Thus, any document which is privileged in the discovery context is also exempt from disclosure under the Freedom of Information Act (F0IA) Exemption 5.
The Supreme Court in Weber Aircraft v. United
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States, 104 S. Ct. 1488 (1984), held that F0IA Exemption 5, exempts documents normally privileged in the civil discovery context, regardless of whether the claimed privilege is one that was explicitly mentioned in.
the legislative history of Exemption 5.
104 S. Ct. at 1492-93. The basis for denying your initial request was that the requested documents came within the critical self-evaluative privilege.
4 In Wash'ington Post Co. v. HHS, 603 F. Supp. 235 (D.D.C. 1985), the C'ourt held that the confidential report privilege "is based on the governmental interest in protecting the flow of information concerning the subject of the report in question." 603 F. Supp. at 238. The self-evaluative privilege (also known as the self-critical analysis privilege) has been described as " avoid [ing] discouraging an organization from undertaking a critical self-evaluation of its practices and procedures when there are strong policy reasons for ensuring that such an evaluation takes place."
In re Application of the New York Times Co., Civil No. 8-85, slip op, at 3 (S.D.N.Y. Oct. 9, 1984).
See generally Note, The Privilege of Self-Critical Analysis, 96 Harv. L. Rev. 1083(1983).
The privilege is generally acknowledged, see, e.g., FTC v. TRW, Inc.,
628 F.2d 207, 210 (D.C. Cir.1980), to have been fonnulated fifteen years ago in the case of Bredice v. Doctor's Hospital, 50 F.R.D. 249 (D.D.C. 1970), aff'd mem., 479 F.2d 920 (D.C. Cir. 1973).
In denying the requested discovery, the court held that the internal reports at issue were entitled to a qualified privilege. 50 F.R.D. at 251. The 8604040494 B60304 PDR FOIA AFTER9096-A-2 PDR
Mr. Steven Aftergood,
principles enunciated in Bredice were thereafter considered and applied by both federal and state courts in a variety of factual situations.
See, e.c., Keyes v. Lenoir Rhyne College, 552 F.2d 579, 581 (4th Cir.
1977) TETscovery denied of confidential faculty evaluation records);
Gillman v. United States, 53 F.R.D. 316, 318 (S.D.N.Y.1971) (company's affirmative action plan held not discoverable as its release would
" discourage frank self-criticism and evaluatian"); Oviatt v. Archbishop Bergan Mercy Hospital,191 Neb. 224, 227; 214 it.W. 2d 490, 492 (1974)
(proceedings and records of medical staff committee held privileged).
In sum, I find in the above-cited cases ample authority to bring the documents which are the subject of your request within the self-evaluative privilege. Thus, they are exempt from disclosure under Exemption 5 of the Freedom of Information Act.
In your appeal letter you noted that one of the documents you requested had been provided to the Senate Connittee on Environment and Public Works. Providing documents to a Congressional committee for its official use is not a public disclosure of exempt documents and does not constitute a waiver of any F0IA exemptions applicable to those documents. See Aspin v. Department of Defense, 491 F.2d 24, 26 (D.C.
Ci r. 1973).
You also noted that other 01A reports have been previously released.
The F0IA exemptions are discretionary, not mandatory and the Commission may release such reports when it finds it to be in the public interest to do so. Chrysler v. Brown, 441 U.S. 281 (1979).
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This letter represents the. final agency action on your F0IA appeal of,
the initial decision in F01A-85-577. Judicial review of the decision is available in a federal district court in which you reside, or in the District of Columbia.
- incerely, C
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amuel NChilk Secretar(oftheCommission 9
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Re:
F01A-85-577 APPENDIX RECORDS SUBJECT TO F0lA-85-577 WITHHELD IN THEIR ENTIRETY 1.
04/83
" Report to the Comission - Review of NRC's Reactor Safeguards Program," Office of Inspector and Auditor (128 pages).
2.
06/25/84 Memorandum for Chairman Palladino, Comissioner Gilinsky, Commissioner Roberts, Comissioner Asselstine, and Comissioner Bernthal from George H. Messenger, Acting Director, Office of Inspector and Auditor, entitled " Follow-up on Actions Taken on 0IA's Report Entitled ' Review of NRC's Reactdr Safeguards Program'" (5 pages).
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COMMITTEE.TO BRIDGE THE GAP 1637 BUTLER AVENUE #203 LOS ANGELES. CALIFORNIA 90025 (213) 478 0829 August 13, 1985 Di rector Office of Administration y
y ON U. S. Nuc l ea r Reg 2 l a to ry Comm,i s s i on ACT REQUEST Washington, D.C.
20555 Fora -ss.s 17 Yb d
Dear Sir:
This is a request under the Freedom of Information Act, as amended.
I would like to obtain a copy of the following-reports prepared by the NRC's Office of Inspector and Auditor:
" Review of NRC's Reactor Safeguards Program" and "Follru-up on Ol A Report ' Review of 'NRC's Reactor Safeguards P rog ram'"
The Commi ttee to Bridge the Gap is a non-profi t public interest organization conducting ongoing research into safeguards k
and security at NRC-licensed facilities. On numerous occasions we have testified before the Commission,and the ACRS o. safeguards issues. The results of our work ar~e made available without charge to all interested parties. We therefore request a waiver on production costs.
if our public interest fee waiver request is denied, in whole,
or in part, please indicate the basis for the denial, and how i t may be appealed.
Thank you.
S,i nce re ly,
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Steven Aftergood f
Executive Di rector l
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,c IEU1S E Mr. Steven Aftergood Committee to Bridge the GAP 1637 Butler Avenue #203 IN RESPONSE REFER Los Angeles, CA 90025 TO F01A-85-577
Dear Mr. Aftergood:
This is in response to your letter dated August 13, 1985, in which you requested, pursuant to the Freedom of Infonnation Act (F0IA), copies of two reports prepared by the NRC's Office of Inspector and Auditor dealing with the NRC's reactor safeguards program.
The two documents identified on the enclosed Appendix are being withheld from disclosure pursuant to Exemption 5 of the F0IA (5 U.S.C. 552(b)(5)) and 10 CFR 9.5(5) of the Comission's regulations because these documents are critical, self-evaluative reports prepared by the Office of Inspector and Auditor on the NRC's reactor safeguards program. There are no. reasonably segregable portions because release of the facts would. permit an indirect inquiry into the predecisional process of the agency.
Pursuant to 10 CFR 9.15 of the Comission's regulations, it has been determined that the infonnation withheld is exempt from production or disclosure, and that its production or disclosure is contrary to the public r
interest. The person responsible for denial of the two reports identified on the Appendix is Mr. John C. Hoyle, Assistant Secretary of the Comission.
This denial may be appealed to the Secretary of the Comission within 30 days from the receipt of this letter. Any such appeal must be in writing, addressed to the Secretary of the Commission, 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 F0IA Decision."
Sincerely, 9
Donnie, H. Grimsley, Director Division of Rules and Records Office of Administration
Enclosure:
As stated
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