ML20154P021
| ML20154P021 | |
| Person / Time | |
|---|---|
| Issue date: | 06/30/1983 |
| From: | Ahearne J NRC COMMISSION (OCM) |
| To: | Jamarl Cummings NRC OFFICE OF INSPECTOR & AUDITOR (OIA) |
| Shared Package | |
| ML20081D710 | List: |
| References | |
| FOIA-84-61 NUDOCS 8809300092 | |
| Download: ML20154P021 (4) | |
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/'f at:vy'o UNITED STATES 3C
! A NUCLEAR REGULATORY COMMISSION W ASHIN GT ON, D.C. 20655 June 30, 1983
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MEMORANDUM FOR: James Cumings Director, OIA John Ahearne FROM:
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SUBJECT:
COMMISSIONAMONONYOURCONDUCTINTHEAPPLEGATEFOIA MATTER s
As I depart the NRC, the Comission position on tr.is remains murky. For your possible future use,, the following is my position:
(a) I originally voted with the Comission majority to support the Chaiman's letter to you of June 2?,1983.
(b) Based upon listening to your appeal (which, in retrospect I should have done earlier--it is poor practice to discipline without first discussing the potential penalty with the individual involved). I changed y position.
(c) I concluded that the appropriate Comission position would be to tire you to take management action to correct the situation and report .,5 action to the Comission (if such action had already been taken, it would be so reported). ,
(d) No disciplinary action was justified. ,
cc: Chaiman Palladino Comissioner Gilinsky Comissioner Roberts Comissioner Asr.elstine
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- LIMITED DISTRIBUTION
y\/- 55 ADDITIONAL, VIEWS OF COMMISSIONER AHEARNE Iti my experience over the last several years, there have been. numerous prcblems at the Comission level because of differing approaches to scope and
. differing interpretations of legal questions involved in responding to FOIA requests. For example, as I noted in voting on a request in 1981:
"As this case clearly illustrhtes, completely independent review by each office leads to inappropriate results.... *
"The lack of coordination has created an anomalous result. Each office has a set of documents concerning the draft Indian Point Order. One set was released under the original decision, another set was released at a later time, and two offices still have not cone.eded they are covered by this request. We need better cocrdi-nation.
"OGC should be tasked to work with Secy on future requests. First, there should be better coordination with the staff.... Second, there should be more guidance to the Comission offices.... Finally, in cases such as this one where it is obvious offices are taking different approaches, some effort should be made to achieve a uniform response." .
The staff requirements memo for that SECY included a direction to OGC:
"The Comission requested OGC to assure improved coordination with Staff and Comission offices as to future FOIA requests for Comissioner office documents."
There have been a number of instances where questions were raised about whether a document was an agency document or about the basis for withholding.
At various points in time I was told that OGC was working on some guidance (such as a list of appropriate bases for withholding). However, I have not received'anything on this subject. -
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Second, this will not be the first time agency credibility has been called into question due to inept handling of an FOIA request. For example, in ;
November 1981 we received a request from GAP concerning SECY-81-588 (dealing with investigative jurisdiction of IE and OIA--the inside/outside paper).
The NRC's initial response released the SECY paper, withheld a short memo from me to OIA asking for its comments on the paper, and failed to list two OIA documents which "could contribute to public perceptions of discord within the NRC" (SECY-82-140 at 3). GAP's FOIA appeal included the following -
statement:
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"Even more astounding, the index does not refer to any response by i OIA. It is inherent:y unbelievable that an office would neglect entirely to coment on a proposal that would prevent its staff of largely criminal investigators from conducting criminal investiga-tions. -
"In conclusion, we are seriously concerned that the Comission may not have dealt in good faith with this FOIA reouest. Your response to this administrative appeal will determine whether we initiate a complaint under 5 U.S.C. Sec. 1206(e)(1)(C) for an investigation'of
' arbitrary and capricious withholding of information', as well as possible disciplinary action."
The SECY apparently was released becauce it had already been obtained and released by Congressman Moffett's Office.1 I withheld my document because I was told (in early December) the OIA response was going to be withheld and I understood the SECY was to be withheld (my memo quoted from the SECY l paper). I was not aware of either Congressman Moffet';'s release or NRC's relecse of the SECY until t..a appeal. With respect to 01A's documents, OIA )
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When I asked who g w e Congressman Moffett the paper and whether he was cautioned not to release it I was told Secy, OCA, OIA and EDO "were unaware of the manner in which the Congressman's office may have obtained a copy."
Memorandum from S. Chilk to me dated April 19, 1982.
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,s ' ,,- l identified two documents in a November 30, 1981 memorandum from J. Cummings !
l to J. Carr which were to be listed but withheld. However, "the documents were apparently overlooked in coordinating the initial agency response." l Secy 82-140 at 2-3.
As I noted on my vote sheet, "I can understand how a skeptical outsider might l
conclude there was a conspiracy to conceal inormation."
Thus, as in addressing this case, we should keep in mind the context. The NRC also should address the general problems which exist in handling F0!A requests.
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