ML20149J517

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Responds to Appeal of Denial of FOIA Request for Info Re Criminal Penalties.Appeal Granted & Denied in Part as Stated & Advises That App B Items B-1 - B-6 & B-9 May Be Publicly Available
ML20149J517
Person / Time
Issue date: 04/06/1994
From: Chilk S
NRC OFFICE OF THE SECRETARY (SECY)
To: Lari R
NEWMAN & HOLTZINGER
Shared Package
ML20149J520 List:
References
FOIA-93-606, FOIA-94-A-3 NUDOCS 9501050406
Download: ML20149J517 (3)
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Dear Ms. Lari:

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This. letter respondai to your February 25', 1994 appeal of the decision to withhold in their entirety the documents identified j

on Appendix B (items "B-1" throughs#B-9") and AppendixsC (items s; "C-1" and,"C-2") of the agency's January 25, 1994 partial 3

response to your Freedom of Information Act (FOIA) request 93-l 606. TI have carefully reviewed the records in this case under new policy guidance recently issued by the President and the l

Attorney General.

On the basis of my review, I have decided to grant your appeal in part and deny it in part.

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As a matter of discretion, I have determined that items B-1 i

through B-6 and B-9 may be made publicly available.

Those records are enclosed.

Upon review, I affirm the determination to withhold the remaining records, B-7 and B-8, as well as the i

records listed ori< Appendix C.

I have determined that these i

records contain material which, if released, could reasonably be expected to interfere with enforcement proceedings, under exemption 7(A) of the FOIA.

In addition, I have determined that l

the records should be protected by privileges of either i

deliberative process or attorney work product, or both, under exemption 5 of the FOIA (5 U.S.C. $552(b) (5).

I hereby deny this f

portion of your appeal.

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Item B-7 is note from a Commissioner's assistant to that Commissioner, with advisory opinions and recommendations l

regarding a proposed rule on criminal penalties.

Item B-8 is a note from the same Commissioner's assistant to that commissioner, i

with advisory opinions and recommendations regarding a final rula l

on criminal penalties.

Both notes were generated as part of the i

continuing process of agency decisionmaking.

Neither reflects a 4

final decision but merely constitutes advice to a higher Each is comprised entirely of subjective authority.

i interpratations and judgments and contains no meaningful factual i

material which can be segregated from the deliberative material.

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y Item C-1 is a letter from an IGtC ' attorney to's Department of Justice attorney concerning the criminal referral;of alcasek l

related to the instant request.

Item C-2 is related 5

correspondence between the same NRC attorney andTanother NRC attorney.

These records were compiled in anticipationiof litigation and constitute analysis and discussion of the legal 4-theories involved, including defenses, and assessment of-the government's position in the potential litigation.' This matter' is currently before the Commissioni pending possible enforcement action.

Release of the material would be prejudicial to the

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government's position if litigation ensues in this,or other cases involving the same issue.

J The FOIA authorizes the withholding of this informatian,.which, consistent with the requirements of exemption 7(A), was compiled for law enforcement purposes, and which currently-is being utilized in enforcement deliberations.

Contemporaneous release of information so intimately connected to the enforcement process l

could well interfere, not only with this proceeding, but with the agency's ability to properly conduct other proceed..ngs.

Also, items B-7, B-8, C-1 and C-2 contain characterizations, j

opinions, recommendations and advice, some of which n re prepared by NRC attorneys in contemplation of litigation.

The contents of these items are deemed privileged under exemption 5 oflthe FOIA.

Exemption 5 authorizes the agency to withhold inter-agency or intra-agency memorandums which would nct be available by law to a party in litigation with the agency.

In this case, the agency asserts that the material is protected by either or both privileges of deliberative process and attorney work-product.

The deliberative process privilege applies to the extent this material reflects the agency's consultative process, as both predecisional and deliberative, and containing analysis, opinions and recommendations.

Release of this information would permit indirect inquiry into the deliberative process, which this exemption seeks to protect, and could undermine the government's decisionmaking process by inhibiting the candor of advice.

This material is properly within the protective scope of exemption 5.

NLRB v. Sears. Roebuck & Co.,

421 U.S. 132 (1975).

To the extent this material constitutes documents prepared by the NRC's attorneys in contemplation of litigation, they are considered subject to the attorney work-product privilege and the contents, likewise, are deemed privileged under exemption 5.

FOIA law incorporates the attorney work-product privilege articulated in Rule 26(b)(3) of the Federal Rules of Civil Procedure, which limits the scope of discovery for materials prepared in anticipation of litigation.

Washinoton Post Co. v.

1913, 690 F. 2d 252 (D.C. Cir. 1982).

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,a The purpose of the attorney work-product privilege is to enable f

l attorneys to prepaie cases without fear that their work product l

will be used against their clients. 'mastfrunhonaa v.'*=anblic of

., L the Philionines, 951 F. 2d 1414 (1991).

This agency recognises V

the legitimate interests of attorneysiin preserving the

. confidentiality of their work product, in accordance with the i

Federal Rules of Civil Procedure regarding Discovery, and will not compromise it by release under.the FOIA.

l Moreover, the agency will not honor requests for partial release of documents privileged as attorney work-product, since the entire document is protected by the privilege and redaction is.

inappropriate.

United Technoloales Corn. v. NTus, 632 F. Supp.

776 (1985), aff'd on other arounds, 777 F. 2d 90 (1985).

Therefore, this portion of your appeal is denied.

This is a final agency decision on your appeal.

As set forth in the FOIA, 5 U.S.C. 5552 (a) (4)(B), judicial review of this decision may be obtained in the United States District Court in the district in which you reside'or have your principal place of business or in the District of Columbia.

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J Samuel J Chilk i

Secretary of the Commission i

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