ML20198B102
| ML20198B102 | |
| Person / Time | |
|---|---|
| Site: | Catawba  |
| Issue date: | 02/07/1986 |
| From: | Carr A DUKE POWER CO. |
| To: | Stello V NRC OFFICE OF THE EXECUTIVE DIRECTOR FOR OPERATIONS (EDO) |
| References | |
| FOIA-85-584, FOIA-86-A-8, FOIA-86-A-8E 860207, EA-84-093, EA-84-93, NUDOCS 8605210526 | |
| Download: ML20198B102 (4) | |
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February 7, 1986 LL A B W M A N, J R.
FFREY REPEL JIFFERSON D. GRIFFITH,III Mr. Victor Stello, Jr.
Acting Executive Director for Operations APPEAL OF INITIAL FOIA DECISION U.S. Nuclear Regulatory Commission
[h4-g (Q-pp Washington, D.C.
20555 h /d $/O-Q Re:
FOIA-85-584 Appeal From an Initial FOIA Decision Regarding Enforcement Action EA 84-93
Dear Mr. Stello:
Pursuant to the Freedom of Information Act ("FOIA"), 5 U.S.C. S 552(a)(6) and the NRC's regulations, 10 C.F.R. SS 9.11, Duke Power Company
(" Duke") hereby appeals from the "fifth partial response," dated January 8, 1986, which denied in part Duke's August 19, 1985 F0IA request for copies of all documents related to and underlying enforcement Action EA-84-93.1/ By letter of January 8,1986, Mr. Donnie H. Grimsley, Director, Division of
~
Rules and Records, Office of Administration, informed Duke of the NRC's refusal to release certain "predecisional information" which constitutes
" advice, opinions and recommendations of the staff."
As identified in Mr. Grimsley's letter, the persons responsible for this denial are Mr. Grimsley and Dr. J. Nelson Grace, Regional Administrator, Region II. They based this denial on Exemption 5 of FOIA, 5 U.S.C. SS 552(b)(5), and the corresponding provision in the Commission's regulations,10 C.F.R. SS 9.5(a)(5). Duke objects to the NRC withholding these records on the grounds that the cited exemption does not authorize withholding this relevant information.
At the outset it should be noted that Duke's ability to object effectively to the NRC withholding these documents is, of course, hampered by the fact that Duke is not aware of the exact nature and content of each document withheld.
In some instances, the description of the documents withheld is so perfunctory as to prevent Duke from making a substantive l
1_ / This request has also been the subject of correspondence with Mr.
Dircks, dated October 25, 1985 and December 9, 1985, as well as six partial responses, dated November 4, 1985, December 10, 1985, December 26, 1985, January 7,1986, January 8,1986, and January 24, 1986. On January 9,1986 and January 27, 1986, and February 6, 1986, Duke filed respective appeals from the December 10, 1985, "second partial response," and the December 26, 1985 " third partial response," and the January 7,1986 " fourth partial response."
r605210526 860207 PDR FOIA CARR86-A-8E PDR -
~* c Mr. Victor Stello, Jr.
February 7, 1986 Page response.2/ Simply to identify a. document as a draft letter, memo, or report, even when the sender and recipient are named, with no more than a hint concerning the subject matter, is a legally' inadequate response.
- See,
_e.g_., Mead Data Central v.' Department of the Air Force, 566 F.2d 242, 260-61 (D.C. Cir. 1977); Vaughn v. Rosen, 484 F.2d 820, 825-28 (D.C. Cir. 1973),
cert. denied, 415 U.S.
977 (1974).
Duke is entitled to a usable description of each document to aid it in determining whether the document is relevant to Duke's bases for challenging the Staff's enforcement action.
Id. Accordingly, if the NRC continues to withhold any of these documents after this appeal, the agency must identify those documents with greater specificity so as to allow Duke to pursue intelligently administrative reconsideration and judicial review. With this present bandicap in eind, however, Duke hercin provides the legal basis-for this FOIA appeal.
It is fundamental F0IA law that the " basic policy" of FOIA "is in favor of disclosure"; thus " Congress carefully structured nine exemptions from the otherwise mandatory disclosure requirements." NLRB v. Robbins Tire & Rubber Co., 437 U.S. 214, 220 (1978).
Furthermore, it is clear that a court will carefully consider the nature of each individual document that is withheld, rather than treating documents or files of documents as a whole.
Id. at 229-30. Accordingly, in responding to this appeal, the Office of the Executive Director for Operations needs to review the entirety of each document that is withheld, and release those portions that are not themselves independently exempt from disclosure.
2 Disclosure is particularly appropriate.in this case because these documents underlie at least in part the NRC Staff's determination to issue, on August 13, 1985, a Notice of Violation and Proposed Imposition of Civil Penalty, EA 84-93, against Duke. As Duke has previously explained, the requested documents are significant to its ability to determine what actions it wishes to take with respect to EA 84-93.
The complex factual and legal questions at issue in that enforcement action make it imperative that Duke be able to assess the basis for the NRC's actions.
Exemption 5 Exemption 5 permits an agency to withhold " inter-agency or intra-agency memorandums or letters which would not be available by law to a party other than an agency in litigation with the agency." 5 U.S.C. SS 552(b)(5); cf.
10 C.F.R. SS 9.5(a)(5).3[ Mr. Grimsley's January 8th letter withholds twelve 2 / For example, Document U-6a is an undated document described as " Draft memo from Puckett to Axelrad,
Subject:
Severity Level III Violation -
Duke Power Company. (2 pages)."
3 / To the extent the NRC's regulations attempt to exclude more under Exemption 5 than the statute itself allows to be excluded, the regulations are void. As discussed in the text, infra, the cases interpreting the scope of Exemption 5 of FOIA focus on the function served by the document within the agency. The NRC's regulations, J
'Mr. Victor Stello, Jr.
Februa*y 7, 1986 Page separate documents pursuant to Exemption 5, as identified on Appendix U to that letter.4/ One judicially recognized limitation on the scope of Exemption 5 requires that at least three of these withheld documents 5/ be released pursuant to F0IA because these documents represent the NRT s
" working law"; they are interpretations or guidelines with precedential weight that the agency follows, thereby affecting the public, and thus must be disclosed.
E.g., NLRB v. Sears, Roebuck & Co., 421 U.S.
132, 152-53 (1975); Schiefer v. United States, 702 F.2d 233, 237 (D.C. Cir. 1983);
Taxation With Representation Fund v. IRS, 646 F.2d 666, 682-84 (D.C. Cir.
1981); Exxon Corp. v. FTC, 466 F. Supp.
1088,1097-98 (D.D.C.1978), af f'd, 663 F.2d 120 (D.C. Cir. 1980).
These documents, withheld pursuant to Exemption 5, appear to be memoranda which set forth the agency's views on whistleblower protection and enforcement actions in general, or as applied to the Director's Decision in the matter of Duke Power Company. As such, these documents must be viewed as setting forth the standard which was followed by the agency and therefore should b,e disclosed.
- Additionally, all twelve of the documents in Appendix U that are being withheld pursuant to Exemption 5 should at the very least be released in redacted form, with all factual information contained therein revealed.6/
g, on other grounds,ITT World Communications v. FCC, 699 F.2d 1219,1236 (D.C. Cir.1 rev d U.S.
, 104 S. Ct. 1936 (1984);Z/ Coastal States Gas Corp. v. DOE, 617 F.2d 854, 867 (D.C. Cir.
1980); Exxon Corp. v.
FTC, 466 F. Supp. at 1097-99 (D.D.C. 1978).
Yet the January 8th letter, in contrast to the preceding partial responses, does not even contain the usual bare, conclusory assertion that "there are no reasonably segregable factual portions" of these documents.8/ In order for the NRC's FOIA response to y
however, permit withholding a document solely because the document was prepared for internal use within the agency.
See 10 C.F.R. S 9.5(a)(5)(1). Notwithstanding this regulation, a document must be disclosed if it meets the legal standards in the statute as interpreted by the courts, and discussed herein.
4 / Documents U-1 through U-6d.
5 / Documents U-2, U-4a, and U-6a.
6 / For example, at least part of Document U-3, entitled " Memo from O'Reilly to DeYoung... Attachment, Appendix A, RIII [ sic?] Communications Concerning Welder 'B' Issue" would appear to consist primarily, if not exclusively, of factual information that must be disclosed.
7 / In ITT World Communications, the Court of Appeals had decided consolidated appeals concerning, inter alia, the Sunshine Act, a District Court injunction against ultra vires agency actions, and the FOIA. The Supreme Court reversed the Court of Appeals on the Sunshine Act and ultra vires' issues, but did not review the FOIA issue.
8 / Compare the second, third, and fourth partial responses to this FOIA request dated December 10, 1985, December 26, 1985, and January 7,1986.
' Mr. Victor Stollo, Jr.
February 7,1986 Page,
withstand judicial scrutiny, all segregable factual portions must be released, with any assertedly exempt information specifically described.
See, e a, Mead Data Central v. Department of the Air Force, 566 F.2d at 260-62; Vaughn v. Rosen, 484 F.2d 820, 825-28 (D.C. Cir. 1973), cert.
denied, 415 U.S. 977 (1974). Accordingly, on this administrative appeal, the Office of the Executive Director for Operations should correct this deficiency in the FOIA response; all segregable factual material contained in the twelve withheld documents must be released.
Conclusion As demonstrated above, none of the documents withheld by Mr. Grimsley's January 8,1986 response fall under the claimed exemption from disclosure.
Duke therefore submits that production of this information is compelled by the Freedom of Information Act.
Sincerely Albert V. C
, Jr.
Assistant naral Counsel cc: Chairman Nunzio J. Palladino Commissioner Thomas M. Roberts Commissioner James K. Asselstine Commissioner Frederick M. Bernthal Commissioner Lando W. Zech, Jr.
Mr. Samuel J. Chilk Mr. James M. Taylor Ms. Jane A. Axelrad Mr. Donnie H. Grimsley