ML20154M565

From kanterella
Jump to navigation Jump to search
Partially Withheld SECY-85-159 Discussing FOIA Appeal 84-A-78C Re N Bell FOIA Request 84-795 Concerning Diablo Canyon Nuclear Power Plant.Related Documentation Encl
ML20154M565
Person / Time
Site: Diablo Canyon, 05000000
Issue date: 05/07/1985
From: Malsch M
NRC OFFICE OF THE GENERAL COUNSEL (OGC)
To:
Shared Package
ML20151K691 List:
References
FOIA-85-409, TASK-PINV, TASK-SE SECY-85-159, NUDOCS 8603140333
Download: ML20154M565 (14)
v • d • e


Text

e 1

, ,f

~%,

' ..... ' t ..

May 7, 1985 S' ' S' POLICY ISSUE (Notation Vote)

For: The Commissioners From: Martin G. Malsch Deputy General Counsel

Subject:

FOIA-84-A-78C (APPEAL OF FOIA-84-795)

Purpose:

Background:

By letter dated October 9, 1984, Nina Bell of the Nuclear Information and Resource Service requested copies of the following ' documents under the FOIA:

  • transcripts of Commission meetings in June, July and August on emergency planning and earthquakes at Diablo Canyon; ,

l CONTACT:

l C. Sebastian Alcot, OGC l 634-3224 l

1 l

8603140333 860115 -

PDR FOIA RYAN85-409 PDR

2 e

In a partial response dated October 26, 1984 (copy attached as Attachment 1),

the agency released attachmbnts A-H to SECY-84-291. All other responsivo documents were withheld under exemption 5 of the FOIA as pre-decisional documents reflecting advice and recommendations. The October 26 letter did not, however, respond to Bell's transcript request. By letter dated November 5, 1984, Bell appealed. A copy of the appeal appears as Attachment 2.

In December 1984, Dell joined as a plaintiff in SLOMP v. NRC, D.D.C. No.

84-3884, an action seeking to force the disclosure of the Commission's Diablo Canyon transcripts. During the pendency of the SLOMP case, Bell's appeal was held in abeyance. On February 20, 1985, the SLOMP case was dismissed when the Commission authenticated (minus one page) a copy of the transcripts in plaintiff's possession which had been leaked to a third party. In light of the dismissal of the SLOMP case, Bell's appeal has been re-activated.

. g G

O

q.

~*

. 6 lllf , l b' '. '

Martin G. Malsch Deputy General Counsel Attachments as stated Commissioners comments or consent.should be provided to SECY by c.o.b. Wednesday, May 22, 1985.

Commission Staff Office comments, if any, should be submitted to the Commissioners NLT Wednesday, May 15, 1985, with an information copy to SECY. If the paper is of such a nature that it requires additional time for analytical review and comment, the Commissioners and the Secretariat should be apprised of when commen'ts may be expected. - s DISTRIBUTION:

Commissioners

  • e g-e e

ATTACHMENT 1 1

i r

i

  • S. .

e b

% N

  • h h -

l 007 2 6 IIB 4 ,.

Ms. Nina Bell Assistant Director Nuclear Information and Resou.rce Service 1346 Connecticut Avenue, NW, .4.th Floor IN RESPONSE REFER Washington, DC 20036 TO F01A-84-795

Dear Ms. 9e11:

This is in response to your l'atter dated October 9,1984, in which you requested, pursuant to the Freedom of Infomation Act (FOIA), four categories of dociments regar#ing the Diablo Canyon Nuclear Power Plant.

Copies of the documents listed on enclosed Appendix A are being placed in the NRC (PDR).

~

Documents 1 through 3 listed on enclosed Appendix B contain the pmdecisional legal analyses, opinions, and recomendations of the Office of the General Counsel for the Comissioners' consideration of the effects of '

earthquakes on emergency planning for the Diablo Canyon Nuclear Power Facility. These documents are being withheld from public disclosure pursuant to Exemption (5) of .the FOIA (5 U.S.C. 552(b)(5)) and 10 CFR 9.5(a)(5) of the Cossiission's regulations. Ducument 4 of Appendix B, contains the predecisional advice, opinions, and recommiendattons of the Office of Policy Evaluation to the Comissioners regarding the effects of earthquakes on e.nergency planning for the Diablo Canyon Nuclear Power Plant and is being withheld from public disclosure pursuant to Exesption (5) of the F0IA (5 U.S.C. 552(b)(5)) and 10 CFR 9.5(a)(5) of the Comission's . ,

regulations. The withheld documents do not contain any nasonably segmgable factual portions. .and their release would tend to inhibit the open and frank exchange of ideas essential to the deliberative process.

The documents are being withheld in their entirety.

Pursuant to 10 CFR 9.15 of t$ Comission's regulations, it has been detamined that the information withheld is exempt from production or disclosure and that its production or disclosum is contrary to the public interest. The person nsponsible for the denial of documents 1 through 3 is Mr. James A. Fitzgerald, Assistant General Counsel, Office of the General Counsel. The person responsible for the dental of docisnent 4 is Mr. John E. Zerbe Dimetor, Office of Policy Evaluation.

  • "'c ' > ................... ..................... ......................

'*""=*> ................... ..................... .....................

Cats) .................. ..................... ..................... ..................... ..................... .................... .................

  • u*** *-***'

cic r o w nie n o,eo. u c w o u o OFFICIAL RECORD COPY

.' h E$ y N S Ms. Nina Bell ..

This denial may be appealed to the Comission within 30 days from the receipt of this letter. Any such appeal must be in writing, addmssed to the Secretary.of the Comission, U.S. Nuclear Regulatory Comission, Washington, DC 20555, and should clearly state on the envelope and in the letter that it is an " App.eal from an Initial FOIA Decision."

The NRC has not cogleted its' review of the documents subject to items 1 and 4 of your request. We will respond as soon as that review is completed.

Sincerely.

gGnedi J.M.Feucre J. M. Felton, Director Division of Rules and Records

. Office of Mministration

~

Enclosures:

As stated DISTRIBUTION

  • DRR Rdg DRR Subj
  • PGNorry ECShomaker s

PDR MSweerley LRobinson l SDIsaacs j MTenagiia i

i i

  • CONCURRED BY PHONE l

i l

, , , , , , , ADM:DRR ADM:DR AD' . R OGC OPE

.... m ........ ..............

S015AAc.5/.sh. ...l. Robinson... ... .$Tena9.W..........................

I t.o n . . . . .*.MS we a noy . . . . . .................

l * * " > . .('. .(84' , ,,,,,, ,,,,i gg e.4. . . . . . . .1. 9. . . 8 4. . . .. .. 1.0/.w3.4. . . .. . . .t onea4.. .. . . .

' ae ro=u re no. e.waeu mae OFFICIAL RECORD COPY c u.s.am issG

84-795 Appendix A

1. Attachments A - H to SECY-84-291 Attachment A - 11/3/80 Memo for John McConnell from Brian K. Grines re: Request for FEMA Assistance to Review Effects of Earthquake and Volcanic Eruption on State / Local Emergency Plans Attachment B - 11/24/80 Letter to Bart D. Withers from R. A. Clark re: Effect of Volcanic Eruption on Energency Responses at Trojan Nuclear Plant Attachment C - 12/23/80 Letter to Bart D. Withers from Neale V.

Chaney re: Revise Emergency Plan with Respect to the Effects of Volcanic Eruptions from Mount St. Helens Attachment D - 2/7/83 Letter to Bart D. Withers from Robert A. Clark re: Volcanic Eruptions Around Trojan Attachment E - 4/23/81 Letter to Robert A. Clark fron Bart D. Withers re: Trojan Radiological Emergency Plan Evacuation Analysis Report Attachment F - 9/83 Yarious Tables--Initiating Condition and Emergency Action Levels Attachment G - Letter to Willian Dircks from Lee M. Thomas rer Local '

Plans Related to the Trojan Commercial Nuclear Power Station dated 7/6/82 Attachment H - 2/23/83 Memo for Dave McLoughlin from W. H. Mayer re:

Findings and Determinations for Portland General Electric's Trojan Nuclear Power Plant O

i APPENDIX 8

1. - February 10, 1984 SECY-84-70, February 10, 1984 memorandum to the Commissioners from B. Plaine, General Counsel,

Subject:

Consideration of the complicating Effects of Earthquakes on Emergency Planning at Diablo Canyon, 6 pp.; Attachment 1, paper entitled "OGC Analysis," 9 pp; Attachment 2, June 22, 1982 memo-randum to the commissioners from W.

Dircks, EDO, Subjects Emergency Planning and Natural Hazards, 2 pp.; enclosure to Attachment 2, paper entitled " Basis for Consideration of Natural Bazards in Emergency Planning," 5 pp.;

Attachment 3, January 13, 1984 memorandum to N. Palladino from W.

Dircks, EDO Subjects Emergency Planning and Seismic Hazards, 6 pp.; Attachment 4, draft commission order, 3 pp.

2. July 18, 1984 SECY-84-291, July 18, 1984 memoran-dum to the Commissioners from H.

Plaine, Gene?al Counsel,

Subject:

Diablo Canyts - Commission Decision on the Netd to Consider the Compli-cating affects of Earthquakes on '

Emergency Planning, 13 pp.; Attach-ment 1, paper entitled " Analysis, ,

Views of the Parties and OGC's Analysis of Them," 24 pp.

3. August 3, 1984 Memorandum to the Comissioners from M. Malsch, Deputy General Counsel,

Subject:

Diablo Canyon -

Order on Effacts of Earthquakes on Emergency Planning, 1 p; Attachment, draft commission order, L 11 pp.

4. Attachment 2 to SECY-84-291,0PE coments regarding consideration of earthquake effects on emergency planning for the Diablo Canyon facility, 3 pp. -

- w- - - __----.-_-

,w -

O 9

p 4 8

L

  • e ATTACIU4ENT 2 l .

t Y

4 #

Nucear In"ormaion anc Resource Service n-1346 Connecticut Avenue NW. 4th Floor. Washington, O C 20036 (202)235 7552 November 5, 1984 Samuel J. Chilk, Secretary U.S. Nuclear Regulatory Commission Washington, D.C. 20555 James A. Fitzgerald Assistant General Counsel ,

office of the General Counsel Nuclear Regulatory Commission.

Washington, D.C. 20555 John E. Zerbe, Director Office of Policy Evaluation Nuclear Regulatory Commission Washington, D.C. 20555 Re: Appeal from an Initial FOIA Decision FOIA 84-795

Dear Sirs:

This letter is an appeal of the partial denial of a request made by the Nuclear Information and Resource Service (NIRS) pursuant to the Freedom of Information Act, 5 U.S.C. 552(s)(6), and NRC '

regulations at 10 CFR 9.11. The hand-delivered request, dated October 9, 1984, asked for:

1. All transcripts of closed Commission meetings held during June, July, and August of 1984 concerning the complicating effects of earthquakes on emergency preparedness at the Diablo Canyon plant;
2. SECY-84-70;
3. 3ECY-84-201; and 4., Copies of all drafts of the Commission's final order CLI-84-12, and closely related documents. ,

That request was partially denied, granted and not responded to on October 26, 1984 by Mr. J.M. Felton. This letter appeals the l denial of the following documents:

1. SECT-84-70, February 10, 1984 and four attachments;
2. SECY-84-291, July 18, 1984 and two attachments; and A
3. August 3, 1984 Memorandum to the Commissioners from M.

Malsch. 0GC and one attachment. .

This letter also se,rves notice of appeal for the failure to respond to the request for transcripts of the Commission's meetings as identified above.

In denying the documents, Mr. Felton's letter relied on the exemption for intra-agency memoranda. 5 U.S.C. 552(b)(5).

However, given the lack of information in Mr. Felton's danial, it is impo s s ib le for NIRS to determine whether the documents withheld fall within that exemption. While the letter states that the denied documents contain " pre-decisional advice, opinions, and recommendations" they are not described with the requisite specificity. Thus, it is impossible to determine whether the exemption was properly applied. As a requestor obviously does not have the ability to review denied documents to allow it to argue that the denial was improper, the D.C. Circuit

- has squarely held that the burden is "specifically pisc[ed] on the Government" to establish that the withheld material is exempt

  • from the requirement of disclosure. Moreover, it held that this

. burden cannot be met by " sweeping and conclusive citatio~n of an exemption".

Thus, we require that when an agency seeks to withold information it must provide a relatively detailed justification, specifically identifying the reasons why a particular exemption is relevant and correlating those claims with the particular part of a withheld , ,

document to which they apply. Mead Data Central. Inc.

v. U.S. Danartment of the Air Force, 566 T.2d 242, 251 (D.C. cir. 1977).

Mr. Felton's letter contains none of the information required by the court in Mead Data. The denied documents listed above are identified only by date, author, recipient, and title. No

" detailed justification" is included despite the fact that Section b(5) of the Act does not provide a blanket exemption for all pre-decisional agency memoranda. The' exemption does not apply, for example, to statements of law or policy; statements of final agency action; or statements by agency superiors to subordinates explaining the reasons for decisions. Taxation With Renresentation v. 111, 646 F.2d 666, 676-21 (D.C. Cir.

1981). It does not apply to instructions to staff that affect a member of the public; an agency's " working" or " secret" law; or positions on issues taken by the agency formally or informally, even if at the time of preparation it was pre-decisional. Sig g4g2 Coastal States Gas.Coro. v. Denartment of Enerty, 617 T.2d at 866; Federal Onen Market Commission v. Merrill, 443 U.S. at 360 n.23; and M11] v. Sears. Roebuck & Co., 421 U.S. at 151-53.

I The cit & tion of Exemption 5 is, in essence, " executive" privilege, which protects advice, recommendations, had opinions which are part of th's deliberative, consultive, decision-making process of government. Egg EL&} v. Seara..toebuck.&.co., 421 U.g. at 151-53. In Egggg , th e Cour t held that memoranda that explained the general counsel's decision ggi to file complaints are final administrative decisions that must be disclosed, because Exemption 5 does not apply to final opinions or dispositions. According to the D.C. Circuit, "as a general principle * *

  • action taken by a responsible decision-maker in an agency's decision-making process which has the practical effect of disposing of a matter before the agency is ' final' for purposes of the FOIA." B rittal .Mv e r.s v . Lig. 598 F.2d at 25.

Without, of course, having seen the documents which have been denied, it can be assumed that they constitute the agency's decision to dispose of the issue of the complicating effect of earthquakes on emergency planning at the Diablo Canyon nuclear plant.

- If it is predecisional at the time of preparation but is " adopted formally or informally as the agency position on an issue or is used by the agency in dealing with the public," it ceases to be exempt. Coastal. States. Gas.Cornaration v. Denartment.of Enarty, 617 F.2d at 866. The Supreme Court recognized a distinction between pre-decisional documents, which are exempted, and post-decisional documents which are not exempted. The Court noted that it would be reluctant to consider " statements of policy and interpretations which have been adopted by the agency" and " instructions to staff that affect a member of the public" to be exempt under Exemption 5. Egggg, supra at 151-153. This is consistent with numerous court interpretations that the FOIA's Exemption 5 does not exist to protect an agency's " secret law."

The public has a right to know, under the FOIA, how the agency interprets the laws as they are written, in particular emergency planning at Diablo Canyon.

The Felton letter does not identify the specific portionsNon- of the -

documents that allegedly are covered by the exemption.

exempt materials must be segregated from exempt materials and disclosed "unless they are inextricably intertwined with exempt portions." Maad tats, gggga, at 260. Where an agency decides not to segregate non-exempt material, it must provide a detailed justification of that decision. 11. at 261. Mr. Felton's letter provides no information as to why exemption b(5) applies to any one of the entire documents, or why non-exempt portions were not disclosed.

NIRS urges that you review.the-withheld documents and decide to disclose them. If you do not, the NRC must provide a detailed justification for the denial of each document or the portions of each document being withheld. I look forward to your response within the twenty working days allowed by law.

4 In addition I would note that the Commission has n o tt yet fully responded to my request. No specific additional period of time has been stated within which a complete response will be provided, as required by NRC regulations 10 CFR 9.9(c) & (d) and 9.13.  ? urge the Commission to reach a timely decision in this matter taking into consideration the importance of the issues contained within the requested documents.

Since y, Nina Bell '

Assistant Director ec: File M

G 9

e 0

6 a 8

y------- - - _ _ _ ._ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ __ _ __ _ _ _ _ _ _ _ _ __

h

. e.

e e

ATTACHMENT 3 k

e S

e e

Retrieved from "https://kanterella.com/w/index.php?title=ML20154M565&oldid=3350604"