ML20153H336

Appeals Denial of FOIA Request for Documents Re Plant. Requests That NRC Response Be as Detailed as Possible in Order to Better Enable Client to Determine Need for Further Legal Action

ML20153H336
Person / Time
Site:	Shoreham File:Long Island Lighting Company icon.png
Issue date:	06/23/1988
From:	Belair R KIRKPATRICK & LOCKHART
To:	NRC OFFICE OF THE EXECUTIVE DIRECTOR FOR OPERATIONS (EDO)
References
FOIA-88-63, FOIA-88-A-34 NUDOCS 8809090152
Download: ML20153H336 (6)

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99/M81 DNCT W1 MAdMA (202) 778-9023 June 23, 1998 HAND DELIVCRED NIAAL IOLA DCCilUON Executive Director for Operations 89 - A -3 y2 m -n-j' U.S. Nuclear Regulatory Conmission Washington, D.C. 20555 gl] b, M h,kk 2

Re: Appeal f rom Initial TOI A Decision  !

Treedom of Information Act Appeal, Case No. 68-6)

Gentle 9ent f

This is an a peal pursuant to the Freedom of Information Act, a s amended ( p'rOI A") , 5 U.S.C. S 552, and the Nuclear Regula-tory Commission's (the "NRC") regulatt ens thereunder,10 C.F.R.  !

Part 9.11, et seq., made on behalf of our client, Suffolk County, Long Island, New York.

Background of Appeal On January 27, 1988, Suffolk County filed the attached FOIA request with the NRC ("FOIA Request"), steking copies of all '

records, including preparatory materials, contemporaneous notes,  !

post-meeting discussions or analyses, and information submitted i by the Long Island Lighting Company ("LILCO"), relating in any '

way tc a January 14, 1988, meeting involving NRC employees, '

, officials, agents or representatives (including Messrs. Reis, Johnson, Scoto, and Olmstead) and representatives of LILCO (Messrs. Earley, Frielicher, Reveley, and Irwin) concerning matters relating to the Shoreham Nuclear Power Station. Suffolk County also sought copies of all records, not served via the service list in 50-312-OL-03, 05, or 06 dockets, relating in any way to any other comunications during the period March 1987 to the presant between LILCO, including any person acting for or on '

behalf of LILCO, and NRC employees, officials agents Or represen-tatives, which concerned LILCO s request to operate Shoreham at 25 percent power, any Federal Emergency Management Agency review  :

of revisions to LILCO's emergency plan, and any proposed proce-  !

dures of LILCO's emergency plan.

After a request for a clarification of our request, the NRC, l by a letter dated April 8, 1988, under the signature of the 8009090152 800623 PDR FOIA DELAIR88-A-34 PDR  ;

, KIRXPATRICK & l.OCKHART Executive Director for Operations June 23,1988 Page 2 Director of Division of Rules and Records, provided us with r response releasing three documents in their entirety and com-pletely denying one record. We filed our first appeal on May 3, .

1988 etating specif : ally that the NRC had not responded to the '

first part of our request seeking any materials, enntemporaneous notes, post-meeting discussions or analyses, and information submitted by LILCO relating in any way to a January 14, 1988 meeting between LILCO representatives and NRC employees, of fi-cials, agents or representatives. On May 13,1988 the NRC res-ponded with a 1 page document end on May 26, 1988;we' received a. A final response consisting of another one page document and a Specifically, in '.:ha t complete response we denial:ef a >19' thatt were advised page cattacq) .

(1 a 19 page document relating to Shoreham was completely exempt. from disclosure pursuant to "Exemption 5"; and (ii) NRC would neither confirm or deny the existence of any responsive documents.

MRC's Itsy.. 26, 1980 response is procedurally and substan-tively inadequate to meet NRC's bGrden under FOIA. Accordingly, Suf folk County files this appeal, seeking the following relief t

1. That the NRC conduct a new search for responsive mater-tais and fully document its search and its procedures for rain-taining riterials responsive to Suf folk County's request:

2. That the NRC provide Suf folk County with a Vaughn Index covering all responsive, withheld materials; and

3. That the NRC release all responsive material.

4 The NRC Must Conduct a New Search and Provide Af fidavits Describing the Search and its Result The NRC, like all federal agencies, is required to conduct a conscientious, comprehensive and complete search of all of its files in response to a FOIA request, such as that made by Suffolk County, which, "ressonably describes", the materials that are sought. 5 0.8.C. 5 ss2(a)(3) . The courts have repeatedl sized that federal agencies have a "firm statutory duty" y empha- to make good faith and reasonable ef forts to locate all reasonably des-l cribed materials. I'ounding Church of Scientology v. National ,

Security Agency, 610 T.2d 82 4, 837 ( D.C. Cir. 19 7 9) . See also, Cerveny v. central Intelligence Agency, 445 F. Supp. 772, 775 (D.

Colo.1978), and Goland v. Central Inte111oenee Agency, 607 T.2d 3 39, 353 (D.C. Cir. 19 78), cert, denied, 445 U.S. 927 (1980).

k1RKP TRICK 4 LOCKHART Executive Director for Operations June 23, 1988 Page 3 In the instant case it is not conceivable that there are no materials in the NRC's possession or control that relate to the January 14, 1988 meeting between LILCO and NRC representatives and that the only materials since March 1987 relating to any communication between the NRC and LILCO including LILCO's request to operate Shoreham at 25 percent power would consist of a total of six documents. It is our experience that a decision by the NRC ao to whether or not Shoreham should operate at 25 percent power would generate substantial amounts of correspondence, records and other materials well in excess of the amount of material reflected in the partial release or, presumptively, 4

encompassed within the withheld material. Accordingly, we re-quest that the NRC staf f conduct a second search of their records during the appeal period and notify us of the results of that j search.

, Suf folk County also requests that the NRC provide Suf folk l

County with sworn af fidavits signed by all NRC of ficials who have had substantive involvement with the January 14, 1988 meeting i

between NRC and LILCO representatives and, as well, sworn af fida-l vits f rom NRC of ficials who have had substantive involvement in l the NRC's response to the FOIA Request or to this appeal. These af fidavits should attest to the following:

1 The nature of the of ficials' duties and responsibili-ties regarding the response to Suf f olk County's FOI A request or appeal:

2. A description of the of ficials' understanding of the KRC's systes for collecting, reta-ining and retrieving materials related to matters which are the subject of the FOIA Request;

3. A description of the nature and result of their search f or responsive materials.

Recently, the D.C. Court of Appeals has emphasized that an agency bears the burden of establishing that it has conducted a reasonable search.

The agency bears the burden of establishing that any limitations on the search they undertake on a particular rase comport with its obligation to conduct a reasonably thorough investigation. It seems to us clear that the burden of persuasion on this matter is properly imposed on the agency.

KlAKP TRICK 6. LOCKHART i

txecutive Director for Operations June 23, 1988 Page 4 i

McGehen v. Central Intelligence Agency, Slip 0;. pp. 10-11 (D.C.

Ca r. 1983 ) . See also, weisberg v. Department ef Justice, 543 F.2d 300, 311 13.C. Cir. 1976); and Ott v. Lev , 419 F. Supp.

750, 752 (E.D. F.:. 1976).

NRC Must Provide Suffolk County with an ndequate Vaughn Index The NRC must provide to Suf folk County an ad6quate Vaughn Index for all responsive material which is paritally or f ully withheld. A proper Vaughn Index musta identify the number of pages comprising the record and identify the type of record (g, letter, memorandum, issue paper, etc.); state the full names and job titles or positions of all authors, to the extent indicated in the record; state the date of the record, to the extent indicated in the record; state the full names and job  ;

titles or po61tions of all addressees, to the extent indicated in the record; state the full names and job titles or positions of any addittenal persons to whom the record was circulated or made l available, to the extent indicated in the record; provide a '

detailed description, set fc *.h in manageable segments, of the ent!.re content of each with. s ti record or portion thereof; and provide an explanation of the SRC's determinat:on that all or a l particular part of a record is covered by the claimed exemption. l vaughn v, Rosen, 484 F.2d 820, 827 (D.C. Cir. ' 97 3 ) , cert I dented, 415 U.S. 977 (197 4 ) . See also, Dellures v. Powell, 642 i l F.2d 1351,1359 (D.C. Cir. 1980 ) .

The Court of Appeals for the D.C. Circuit has indicated that a Vaughn Index should be prepared not only for judicial appeals l but, as well, for administrative appeals. l We agree with Mead Data that the objective of the Vaughn requirements, to permit the requesting party to present its case ef fec-tively, is equally applicable to proceedings within the agency. ,

c Mead Data Central, Inc. v. United States DeMr*= ant of the Air l i Force, 566 F.2d 2 42, 2',1 (D.C. Cir. 1977). By this standard, the  !

reference to the withheld and allegedly exempt responsive mater-  !

' ials in the NRC's May 26, 1988 letter is grossly inadequate. The j May 26 letter does not indicate the number of documents which have been withheld; does not identify the auth:rs or addressees; i

does not describe the documents in any manner whatsoever; and l does not identify or explain the specific exen; tion claimed for the withholding of each such doeuraent.

, K'AKPATRICK k 1.OCKHART Executive Director for Operations June 23,1988 Page 5 In the absence of even a remot61y adequate Vaughn Index, Suffolk County cannot respond substantively to the merits of the NRC's exemption claims. Therefore, Suffolk County reserves the right ta f11e a supplemental appeal with the NRC af ter Suf f o'.4 County's receipt of an adequate and legally proper Vaughn Index.

4 The Exemption Claim 2

i The exemption in 5 U.S.C. 5 552(b)ts) permits an agency to j withhold material that contains information which reflects a j pre-decisional, deliberative process. In order to invoke the 1 (b)(5) exemption an agency must show thatt (1) the withholding

only covers records or parts of records which contain information I that reflects a pre-der'isional, deliberative process, (2) the

records would not be available to a party in litigation with the agency; and (3) the withholding is necessary to protect a valid j, agency interest such as fostering creative debate and discussion,

) or as oiding publication of misleading or unadopted theories, or

! prote.: ting the integrity of def endants' decision-making process.

i Tax R9 form Research Group v. Internal Revenue Sorvice, 419 F.

supp. 415, 422 (D.D.C.1976); National Labor Relations Board v.

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4 Sears ?oebuck 4 Co., 421 U.S.132, 144-153, 95 ;i. Ct. 1504, 44 L.Ed.2d 29 (1975); Reneeot10 tion Board v. Grumman Aircradt

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Eneineerine Corporation, 42' U.S. 168 185-190, 95 8.Ct. 1941, 44 L.Ed.2d 57 (1975); steritne Drue ine, v. Federal Trade Commis-J g, 450 F.2d 494, 704-704 (D.C. Cir. 1971).

Without an adequate index we are handicapped in evaluating whether all parts of all of the documents that are responsive to i our request can be sheltered by this exemption. However, the NRC has not met its burden of specifying, explaining and justifying

!' the application of this exemption to each withheld document.

Furthermore, we remind the NRC that the (b)(5) exemption is not available to protect final legal opinions, or documents that record og esplain an agency's final decision. NLRB v. Sears i poebuck and es., 421 U.S. at 153-54, 95 8. Ct. at 1518.

j I

Segregable, Boa.esempt Portions of the Withheld Documents 4 Must be teleased We also request that the Department review each withheld I document to segregate exempt and non-exempt material, and to I

release the latter. In the instant caso, the Department has

) evidently made no ef fort whatsoever to distinguish the exempt i i f rom the non.esempt satorial within a record and release the  !

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CKPATRICK & LOCXHART Ex;cutive Director f or operations June 23, 1998 Page 6 lotter. Instead, the Department has der.ied many responsive documents in their entirety without explanation. {

i conclusion In summary, we find it dif ficult to believe that so many rcspensive records are exempt either partly or entirely and we further submit that the NRC has not met its burden under the 01oined exemption at Section 552(b)(5) to justify this extra- '

Crdinary withholding.

We expect tc receive an answer to this appeal within 20 l working days of the NRC's receipt of this appeal, as required by 10 C.F.R. $ 9.29(b).

The undersigned will pay charges for search time and cop ,

foOs as provided by 10 C.F.R. $$ 9.33 and 9.35, respectively.ying If scarch and copying to be incurred by the undersigned will exceed l

$2,000, please notify Naima Said at telephone number 778-9149 before this sum is exceeded.

Finally, we request that the NRC's response be as detailed cs possible in order to better enable our client to determine the n:ed for further legal action. ,

6 Sincerely,

k. hk Robert R. Belair l

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