ML20206D833

Memorandum Rept,Ofc of Inspector & Auditor File I 87-06, Region IV Violation of Foia

ML20206D833
Person / Time
Issue date:	01/15/1987
From:	Kraus C, Mulley G NRC OFFICE OF INSPECTOR & AUDITOR (OIA)
To:	NRC
Shared Package
ML20206D809	List: IA-87-622, Forwards Rept of 861209 Interview W/Ofc of Inspector & Auditor for Review.W/O Encl ML20206D807 ML20206D815 ML20206D823 ML20206D833 ML20206D840 ML20206D844 ML20206D862 ML20206D868 ML20206D877
References
FOIA-87-622 NUDOCS 8811170293
Download: ML20206D833 (6)

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Memorandum  !

i Report  :

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i This Document is loaned to you '

For Official Use Only.  ;

Contents shall not be reproduced.  :

This document must be returned t after it has served its purpose. l l

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SUBJECT:

PFGION IV - VIOLATION OF FREEDOM OF INFOPf4ATION ACT l OIA FILE NO: 1 F7-06 PACKG90llND This inquiry was predicated on an allegation that an employee of Region ly, U.S. Nuclear Regulatory Comission (NRC), had been instructed to destroy documents which ray have been responsive to a Freedem of Infomation Act I din within the NRC. Durino an interview conducted by OIA ato , hFC. a e at egi d him to destrov dr so egien inspection eports alleged these ent to rece ving equest concerning ir.structions were 9 ven su these inspection r s. could not provide other specifics concernireg ' destroy the raft re orts other than to tate he wi directions. cated that egion IV, had so een g ven e same directier. from SUtPARY Thomas J. I'clNTYRE, Office of Legal Policy, U.S. Departnent of Justice (DOJ) was contacted by OIA. PctNTYPE advised there were no crininal previsions conrected with the FOIA. The enly jurisdiction the Federal Courts have under FOIA is to order the disclosure of an agency record, if the record has been destroyed, the court does not have an issue on which to rule. McIntyre knew of no statute that prohibited the destruction of a record subsequent to the

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2-receipt of a FOIA request for that record. He did state that if the NRC had a written policy or procedure that prohibited the destruction of documents subseouent to the receipt of a FO!A request, disciplinary action could be taken against an employee who violated those procedures. -

OIA interviewed Linda L. ROBINSON, Chief, Freedom of Information and Privacy Branch, NRC, who stated that the NRC manuals cevering FOIA do not specifically prohibit the destruction of documents prior to or after the receipt of a FOIA request. She opined that documents should not be destroyed after receipt of a FOIA request; however, this situation is not addressed in the pertinent directives. ROB!NSON further stated that the instant inspection reports were released in r to a request under M which was received by her office Partial responses were forwarded to the requester on The final response to the requester was forwar on O!A's review of NRC Region IV Office Policy Guides revealed a directive entitled "Completeness of Official Files." The directive is identified as Regional Office Policy Guide No. 0206 - Revision 0 and is dated January 28, 1985. Section C of the policy guide contains the Region IV policy relative to the maintenarce and disposition of draft doeurents subsequent to the issuance

of a final document. Section C states:

C. Action All regional staff should becore familiar with, and adhere to, the following procedures:

1. Drafts - Once a final docunent is issued, employees should review the drafts in their possession to detemine if there is i

a reason to keep any of then, such as the draf t containing i substantive infomation on agency actions not contained in final. If no such reason exists, the draft should promptly be disposed of. If an employee detemines that a draft sheuld be kept, the employee shall clearly note on the draft the reason for retaining it. The note and the draft shall then be submit-ted to the file room through the employee's supervisor to assure supervision has knowledge of all substantive iss Jes concerning the record, was interviewed by OIA after being advised of his a nistrative rights and placed under oath. He denied ever instructing any employee in Region !Y to destrov ument(s) which he knew might be subject to an ongoing FOIA request. M further indicated he had never g!Y iven has such instructions knowing that a F0, request was forthcoming. Region conducted training sessions regarding the retention o erial subsequent to the ccepletion of a final document, and that there was a Region !Y policy guide covering this subject, stated it was his practice to ensure that records and docurants under s subordinates' control were maintained in accordance with the Region IV policy.

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' , 1 OIA interviewed subseouent to his' visedofhik~. -

administrative r ts and being placed under oath, stated he has never. ~

been instructed to destroy any docu he knew to be the subject of a

• current or forthcoming FOIA request. stated that to the bes,t of his knowledge, documents were maintained on IV in accordance wi Region Polic." Guide regarding the maintenance of official records.

mvide no infomation th.? would substantiate the allegation ma William L. BROWN, Pegional Counsel, Recion !Y, NRC, was interviewed by OIA after being advised of his administrative rights and being placed under oath.

BROWN advised that once a document has been prepared in final fonn and released Region !Y employees should destroy draft versions of the document as well as other extraneous raterial. If an employee believes some documents should be retained, this can be accomplished by following the region policy and having the documents placed in the region filing system. BROWN also stated that any document, regardless of its location, i.e., in the files or in work areas, is reachable under FOIA once the region is aware of the existence of the FOIA request. BROWN is one of the primary individuals dealing with FOIA ratters in the region, and he indicated that it has never been brbught to his attention by any member of the region staff that instructions had been oiven to destroy documents which may have been respoi sive to a FOIA request.

Specifically, BPOWN indicated frequently is assigned to respend to FO!A requests. BROWN found o be very sensitive to the FOIA requirements and he often solicited PROWN's assistance in release determinations on documents relative to FOIA requests. BPOWN could provide no infomation that would substantiate the allegation made byM .

M in the testimony taken on indicated he may have recorded the date of his discussion wit relative to the 11eged destruction of documents in his records, n January 12, 1987, was recuested to review records available to him in atternpt to locate any notations relative to this matter. M subsequentl advised he could not locate any notations relative to his discussion with CONCLUSION This investigation did not substantiate the allegation that the inspector was instructed by his supervisor to destroy documents responsive to a FOIA request.

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ar es .kraus, liv gator Office of Inspector and Auditor dk $ tw h Georg( A. Kulley, Jr., Assistant Director for Investigations Office of Inspector and Auditor Attachments: -

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1. Extract of ranscriptdatedMarchl'9,'19867concernihgth5'a11egattin'asD ly l' stated by .  ?>

ated December 5,'1986

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Report of Interview of -

2.

INTYRE

3. Copy of Hemorandum dated December 23, 1986.

Subject:

Discussion of FOIA Manual Violation, concerning a discussion between Linda L. ROBINSON, Chief, F0IA Branch and Anthony WA.RD, Investigator, CIA

4. Copy of Regional Office Policy Guide No. ?06 - Revision 0, dated January 28, 19P.5 '

5. Transcript of Interview of anrotated, dated December 9, 1986

6. Transcript of Interview of BROWN, annntated, dated December 0, 1986

7. Transcript of Interview of annotated w/ addendum, dated December 9, 1986 J

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~, q U.S. nucle AR REGULATORY COMMitsl0N Of fice of Inspector and Auditee o... i, n....._Deeember 10, 1986 Feport of Interview Thomas J. ficINTYRE Office of Lecal Policy)U.S. Dep,*rtrent of Justice, was nterviewed concerning criminal 1/nctions associated with the Freedom of InformationAct(FOIA).TFc!NTYPE stated there were no criminal provisions in I

, the FOIA. The only juri~sdictionM he federal courts have pertaining to the F0!A is to order the discles responsetoaFOIArequest.lg.eofartagencyrecordthathadbeenwithheldin Mc!NTYPE reccrd of its own volition W if ther#noted e wasthat if the agency no longer a record, disclosed i.e., the the record ha been dqtstroyed, then the court would no longer have an issue to rule on, cINTYPFJnew of no statue that prohibited the destruction of a record su sequent te receipt of a FOIA request for that record.

l kc!NTYR noted that if the NRC has a written policy or procedure which spec-ified tie conduct of employees upon receipt of F0tA requests, the NRC night be able to take disciplinary action against an employee who violated those precedures.

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4 m Dece,b4( 5, ( $ 6 Bethesda, Maryland , , , , 187-06

. 1 A ist . Director /0IA e.,,,,,,,,, Deechber 10. 1986

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