ML20149F578
| ML20149F578 | |
| Person / Time | |
|---|---|
| Issue date: | 10/28/1987 |
| From: | Parler W NRC OFFICE OF THE GENERAL COUNSEL (OGC) |
| To: | Zech NRC COMMISSION (OCM) |
| Shared Package | |
| ML20149F506 | List: |
| References | |
| CCS, NUDOCS 8801140280 | |
| Download: ML20149F578 (3) | |
Text
.
t UNITED ST ATES
'o,,
NUCLEAR REGULATORY COMMISSION g
W A SHINOTON, O. C. 20666 October 28, 1987
+....,*
MEMORANDUM FOR:
Chairman Zech 0
)
FROM:
William C. Parler/
General Counsel
SUBJECT:
DENIAL OF A FOIA REQUEST FOR A RECORD ALREADY MADE PUBLICLY AVAITJGLE
Background
on October 20, 1987 at a hearing of the Subcommittee on Nuclear Regulation, an incident was discussed concerning the agency's processing of a FOIA request submitted by Insidefor Apparently, the agency denied Inside NRC's request NRC.
a record, SECY-85-149, which had already been released to the Public Document Room ("PDR").
I asked an OGC attorney to look into this matter with the following results:
Subject:
Staff's Proposed Rule on Material False Statements) was submitted to the Commission on April 26, 1985.
Discussion on the paper was scheduled for May 2, 1985 ht an open Commission meeting.
Prior to the May 2 meeting, a Commission monitor assigned to the Secretary's of fice was advised by the Of fice of the Executive Legal Director to make SECY-85-149 available to members of the public who would be attending the meetine.
The monitor accomplished this by placing copies of the paper on a table in the back of the room where the meeting was to be held.
Or. May 3, 1985, a transcript of the May 2 meeting and copies of SECY-85-149 were delivered to the PDR, and on May 15, 1985, these documents were catalogued and otherwiso made available for release to any requesting member of the public.
SECY papers are catalogued by number.
Consequently, Mr. Wetterhahn (CONNER & WETTERHAHN) or any other member of the public could have obtained a copy of the SECY paper from the PDR by
Contact:
Carolyn F. Evans, OGC x41493 8801140280 871223 PDR COMMS NRCC CORRESPONDENCE PDR
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4 simply requesting "SECY-95-149," assuming it was not obtained at the Commissicn meeting.
On June 7, 1985, Margaret L. Ryan, Chief Editor, Inside NRC submitted a FOIA request for "all notation votes made by the Commission in the months of January, February, March, April, and May 1985."
In instances where the vote was to approve any docur ants not attached to the vote sheets such as SECY papsrs, Ms. Ryan requested release of these documents as well.
In this way, SECY-85-149 was captured by Ms. Ryan's FOIA request which was subsequently assigned the sequential FOIA number 85-409 by the Division of Rules and Records.
Ms. Ryan's FOIA request was processed in the customary manner.
Copies of her request were forwarded to all offices reasonably expected to hav2 responsive records.
Forty-six documents in all (including SECY-85-149) were identified as responsive to Me. Ryan's request.
Chese documents were then reviewed for the purpose of making a release / withhold determination under the FOIA.
The review process was two tiered.
First, the offices which authored the documents reviewed them and made an initial release / withhold recommendation.
The documents were then reviewed at the Commission level.
With respect to SECY-85-149, the Office of the Executive Legal Director made an initial "release" recommendation.
This recommendation was not followed.
Instead it was determined at the Commission level that SECY-85-149 was withholdable under Exemption 5 of the FOIA and it was denied on that basis.
Di,scussion Inadvertent error can be isolated as the cause of the l
agenef's "f aulty" processing of Inside NRC's FOIA request.
When the transcript of the May 2, 1985 meeting and copies of I
SECY-85-149 were delivered to the PDR, someone apparently
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forgot to advise the Chief of the Commission's Correspondence & Records Branch of the transmittal.
Had he been so advised, he would have listed SECY-85-149 in his log as a publicly available record.
Thus, when SECY-85-149 was identified as a responsive document, his log would have shown that the document was already in the PDR, Inside NRC would have been advised of this fact and given the secesssion number of the document for retrieval purposes, and the document would never have been review!d for release / withhold determination.
The error coeld have also been avoided if the Division of Rules and Records had l
l
e accessed the Document Control System ("DCS") to see if any i
of the SECY papers identified as responsive to Inside NRC's request had been previously released to the public.
The system would have indicated that SECY-P5-149 was a publicly available document.
cc Commissioner Roberts Commissioner Bernthal Commissioner Carr Commissioner Rogers EDO SECY
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