ML20197E077
| ML20197E077 | |
| Person / Time | |
|---|---|
| Issue date: | 04/09/1986 |
| From: | Chilk S NRC OFFICE OF THE SECRETARY (SECY) |
| To: | Ryan M INSIDE N.R.C. (MCGRAW-HILL PUBLICATION) |
| References | |
| FOIA-85-409, FOIA-86-A-46 NUDOCS 8605150160 | |
| Download: ML20197E077 (2) | |
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UNITED STATES 8
f, NUCLEAR REGULATORY COMMISSION g
WASHIN GTON, D.C. 20555
%.....gh OFFICE OF THE SECRETARY Ms. Margaret L. Ryan Chief Editor Inside NRC McGraw-Hill h - A -'[f, Suite 1200 gg yog 1120 Vermont Avenue, N.W.
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Washington, D.C.
20005
Dear Ms. Ryan:
This letter responds to your February 14, 1986 and March 10, 1986 letters appealing the NRC's January 15, 1986 and February 27, 1986 responses to your Freedom of Information Act ("FOIA")~
request, FOIA 85-409.
In your June 7, 1985 letter you requested all notation votes of the Commission during the first five months of 1985 and the underlying SECY and related staff papers.
The agency in its January 15, 1986 and February 27, 1986 responses to your request, inter alia, denied the request for notation vote sheets as predecisional under Exemption 5 of FOIA, except for those notation vote sheets that Commissioner Asselstine released discretionarily.
In your February 14, 1986 and March 10, 1986 appeal letters you indicate that you believe the agency invoked the exemption incorrectly as to the withheld vote sheets, because they repre-sent final agency action.
For the reasons discussed below, the vote sheets do not represent final agency action.
FOIA requires that "[e]ach agency having more than one member shall maintain and make available for public inspection a record of the final votes of each member in every agency proceeding."
5 U.S.C. 552(a)(5).
" Agency proceedings" are defined by the Administrative Procedure Act as rulemaking, adjudication, and licensing.
5 U.S.C.
551(5)(7) and (9).
The Commission complies with this requirement by conducting public affirmation and vote sessions for its final decisions in rulemaking, adjudicatory, and licensing proceedings.
Each Commissioner has usually submitted a vote sheet on an affirmation item prior to the affirmation session.
Before the affirmation session, the vote sheets, with any attached comments, are circulated to the rest of the Commissioners.
The Commissioners use this process to make their tentative positions known to each other and as a way of informing one another on the particular item.under consideration.
Regardless of the content of his vote sheet, a Commissioner is free to reconsider his tentative position at any time before the 8605150160 860409 PDR FOIA RYAN86-A-46 PDR i
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affirmation session.
Thus, the vote sheets the Commissioners submit are predecisional as the final vote takes place at a public affirmation and vote session.
Commissioner vote sheets on notation vote papers are also predecisional for similar reasons.
Notation vote sheets and any comments the Commissioners attach to those sheets are predeci-sional because the final agency decision, if there is one, is reported in a SECY memorandum.
Commissioner vote sheets are circulated in the manner described above and a SECY memorandum is drafted.
A draft SECY memorandum is circulated to each Commissioner and to other affected offices.
A Commissioner's position can change during this process.
Accordingly, the release of the predecisional vote sheets would tend to inhibit the open and frank exchange of ideas essential to the deliberative process.
The vote sheets also contain no reasonably segregable factual portions, because the release of any facts therein would reveal the deliberative process.
See Mead Data Central, Inc. v. U.S. Dept. of the Air Force, 566 F.2d 242 (D.C. Cir. 1977); Professional Review Org. v.
U.S. Deat. of Health, 607 F.Supp. 423, 427 (D.D.C. 1985).
Therefore, t.1e Commission has determined that release of the vote sheets is not in the public interest and the vote sheets should continue to be withheld in their entirety under the " deliberative process" privilege incorporated in Exemption 5 of FOIA, 5 U.S.C.
S 552(b) (5) and Commission regulation, 10 CFR S 9.5 (a) (5).
Since the Commission now has ruled on your appeals and because you indicated in your appeal letters that you filed a separate l
FOIA "in order to learn... the subject [ matter} of the votes, and whether an item was passed or rejected by a vote," this letter represents final agency action on your February 14, 1986 2
and March 10, 1986 FOIA appeals.
Judicial review of this deci-sion is available in federal district court in the district in which you reside or have your principal place of business, or in the District of Columbia.
S".ncer ly,
/Q, _
Samuel Chilk Secretar of the Commission
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