ML20198B111
| ML20198B111 | |
| Person / Time | |
|---|---|
| Site: | Catawba  |
| Issue date: | 05/05/1986 |
| From: | Stello V NRC OFFICE OF THE EXECUTIVE DIRECTOR FOR OPERATIONS (EDO) |
| To: | Carr A DUKE POWER CO. |
| Shared Package | |
| ML20198B117 | List: |
| References | |
| FOIA-85-584, FOIA-86-A-8, FOIA-86-A-8E EA-84-093, EA-84-93, NUDOCS 8605210529 | |
| Download: ML20198B111 (3) | |
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IIAY 5W Albert V. Carr, Jr., Esquire Duke Power Company Legal Department IN RESPONSE REFER P.O. Box 33189 TO F01A-86-A-8 Charlotte, NC 28242 (F01A-85-584)
Dear Mr. Carr:
This is in response to your letter dated February 7,1986, in which you appealed Mr. D. H. Grimsley's letter dated January 8, 1986, which denied-in-part your Freedom of Information Act (F0IA) request for documents regarding Enforcement Action No. EA-84-93 concerning the Catawba Nuclear Station.
Acting on your appeal, I have carefully reviewed the record in this case and have. determined, for the reasons stated below, that most of the previously withheld documents will continue to be withheld from public disclosure pursuant to Exemption (5) of the F0IA (5 U.S.C. 552(b)(5)) and 10 CFR 9.5(a)(5) of the Commission's regulations.
Therefore, your appeal is partially granted and partially denied.
Portions of documents U-1, U-3, and U-6 are transmittals of draft documents and are now being made publicly available and are enclosed.
Portions of document U-4 are now being made publicly available and are enclosed.
2 The remaining portions of documents U-1, U-3, and U-6 are draft documents which are clearly predecisional because they were prepared prior to and in the course of reaching final agency decisions. These documents describe prelimi-nary staff thinking and, therefore, contain preliminary advice, opinions, and recommendations which were subsequently changed during the preparations of the final agency decisions. As such, these drafts do not reflect final agency positions. Exemption (5) was intended to permit the agency's withholding of such documents to preserve the free and candid internal dialogue necessary for the careful formulation of a Justice, 591 F.2d 753, 774 (gency decisions.
(See Jordan v. Department of D.C. Cir. 1978) and Coastal States Gas Corp. v.
Department of Energy, 617 F.2d 854, 866 (D.C. Cir.1980)).
Segregation and disclosure of the factual information contained in these documents would reveal the staff's evaluations of which facts were important and thereby expose to public scrutiny their thought processes. Thus, the entire docu-ments may be withheld (See Russell v. Department of the Air Force, 682 F.2d 1048 (D.C. Cir. 1982)). Consequently, I have determined that the release of these documents would adversely affect the agency's deliberative process.
8605210529 860505 PDR FOIA CARR86-A-8E PDR
r Mr. Carr The remaining portions of document U-4 and documents U-2 and U-5 are internal agency advice and opinion memoranda which were predecisional to the issuing of the enforcement action and the Director's 2.206 Decision in the matter of Duke Power Company.
It is that publicly available Director's Decision which is the NRC's " working law" document and not these preliminary and predecisional documents. Exemption (5) shields from mandatory disclosure records generated in the deliberative process that precedes most decisions of government agencies.
(See Jordan v. Department of Justice, 591 F.2d 753 (D.C. Cir.1978)). Thus, the exemption protects not only communications which are themselves deliberative in nature, but all communications which, if revealed, would expose to public view the deliberative process of an agency.
(See Montrose Chemical Corp. of California v. Train, 491 F.2d 63 (D.C. Cir. 1974)).
In Jordan, Judge Wilkey articulates the policies behind the Exemption (5) protection of the deliberative process. He states:
There are essentially three policy bases for this privilege.
First, it protects creative debate and candid consideration of alternatives within an agency, and thereby, improves the quality of agency policy decisions. Second, it protects the
'public from the confusion that would result from premature exposure to discussions occurring before the policies affecting it had actually been settled upon. And third, it protects the integrity of the decision-making process itself by confirming that " officials should be judged by what they decided [,] not for matters they considered before making up their minds." (591 F.2d at 772-3 (footnote omitted)).
Consequently, I have determined that the release of these documents 4
would adversely affect the agency's deliberative process.
As you requested, for those items where it is possible, a more detailed description of the document has been included on the enclosed appendix.
This is a final agency action. As set forth in the F0IA (5 U.S.C.
552(a)(4)(B)), judicial review of this decision is available in a district court of the United States in either the district in which you reside, have your principal place of business, or in the District of Columbia.
Sincerely, W
ctor Stello J.
p Executive Director for Operations
Enclosures:
As stated
o F01A-86-A-8 APPENDIX U 1.
07/13/84 Memo from O'Reilly to DeYoung,
Subject:
Section 2.206 Request on Catawba filed by Robert Guild w/ enclosure:
Changes to letter to Mr. Guild.
(2 pages) (Released covermemorandum) 2.
09/12/84 Memo from Puckett to Axelrad,
Subject:
Severeity Level III Violation - Duke Power Company (
References:
ASLBP #81-463-060: NRC 01 Case No. 2-83-038; And Inspection Report Nos.
50-413/84-79and50-414/84-34).
(1page)
^
3.
11/05/84 Memo from O'Reilly to DeYoung,
Subject:
Enforcement Action Request, Duke Power Compnay (1 page) w/ enclosure: Draft letter to Ms. Garde (5 pages) and Attachment, Appendix A, RII Communications Concerning Welder "B" Issue. (1 pages)
(Releasedcovermemorandum) 4.
12/13/84 Memo from O'Reilly to Taylor,
Subject:
Proposed Catawba Enforcement Action (2 pages) w/ enclosures:
a.
08/30/83 Evaluation of Violations Involving Escalated Enforcement Action. (3 pages)
(Released) b.
12/13/84 Memo from Region II Enforcement Panel to O'Reilly,
Subject:
Proposed Civil Penalty.
(3 pages) 5.
04/26/85 Memo from Grace to Taylor,
Subject:
Proposed Enforcement Action and 2.206 Response on Harassment at Catawba.
(2pages) 6.
Undated Routing slip with attachments:
(Released) a.
Draft memo from Puckett to Axelrad,
Subject:
Severity Level III Violation - Duke Power Company.
(2 pages) b.
Draft letter to Duke Power Company,
Subject:
Notice of Violation Involving Illegal Protected Activity Discrimination.
(5 pages) c.
Draft Notice of Violation to Duke Power Company.
(2pages) d.
Draft Report Nos. 50-413/84-79 and 50-414/84-34 Catawba 1 and 2.
(14 pages)
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