ML20206N224

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Responds to Appeal Re Denial of FOIA Request.Appeal of Documents Re Investigation of Equal Employment Opportunity Complaints Denied.Documents Withheld (Ref FOIA Exemptions 5, 6 & 7).App B Document 47 Inadvertently Withheld
ML20206N224
Person / Time
Issue date: 04/15/1987
From: Chilk S
NRC OFFICE OF THE SECRETARY (SECY)
To: Garde B
GOVERNMENT ACCOUNTABILITY PROJECT
References
FOIA-86-85, FOIA-86-A-223 NUDOCS 8704200427
Download: ML20206N224 (2)
v • d • e


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UNITED STATES l

-8 n . NUCLEAR REGULATORY COMMISSION I' E- I wAswinc7on o.c.zoses

  • April 15, 1987

. OFFICE OF THE

,. SECRETARY l

{ Billie Pirner Garde 1 Government Accountability Project j 3424 Marcos Lane-l Appleton, Wisconsin 54911 ,

Re: F01A-86-A-223(86-85) f I

Dear Ms. Garde:

) This is in response to your letter of November 5,1986,' appealing the '

withholding February 10,of1986 54 documents in whole or in part ofin response Act to y(ourF0IA),

l request under the Freedom Information

5 U.S.C. 552, for information related to the investigation of EE0 i complaints against employees of the Agency's Office of Inspector and Auditor. As set out in our October 21,1986. letter, the documents, or I- portions thereof, were withheld under Exemptions 5, 6 and 7(C) of the -

F0!? in that the docurrents or portions reflected pre-decisional advice, i tctorney-client connunications, or names and identifying details, the j disclosure of which would constitute a clearly unwarranted invasion of 1 personal privacy. Upon review of the list of documents withheld in j their entirety, however, I note that one document, number 47, is noted 4 as withheld when in fact it was processed for release to you. If that i document was not included among those so released, please advise me and

< a duplicate will be provided, i

Exemption 5 of the FOIA, 5 U.S.C. 552(b)(5), permits the withholding of

, information which is both predecisional and part of an agency's j deliberative process. Jordan v. Department of Justice, 591 F.2d 514, 774 (D.C. Cir.1982); Vaughn v. Rosen, 523 F.2d 1136,1143-44 (D.C. Cir.

1975). The documents identified in Appendix B, numbers 23 and 24.

j reflect such advice and recommendations regarding the relevant EE0 matter (s). The documents identified in Appendix B, numbers 20 and 21 _

] are drafts of documents, the release of which would reveal at a minimum

! the pre-decisional process underlying the creation of the final agency i document. As such, they are withholdable under Exemption 5. See,  !

i Exxon Corp. v. DOE, 585 F.Supp. 690, 698 (D.D.C. 1983); RusselT v. g , '

1 Department of the Air Force, 682 F.2d 1045, 1048-50 (D.C. Cir.-1982).

I Document 48 of Appendix B, in addition to qualifying as pre-decisional I advice, also constitutes confidential attorney-client communications i subject to withholding under Exemption 5. See, Mead Data Central -Inc.

j v. Department of the Air Force, 566 F.2d 24 E 252 (D.C. Cir. 1977)

! aff'd, 575 F.2d 932 (D.C. 1978). Finally, all other documents or ' ,

j portions withheld by the October 21 letter reflect names, identifying '

infonnation or personnel matters associated with or generated in  !

! connection with the investigation and resolution of EE0 complaints, i i matters clearly involving privacy considerations warranting protection l j pursuant to Exemptions 6 and 7(C) of the FOIA. Your appeal letter of i

j $ 42 g 7 870415 '

l GARDE 86-A-223 PDR i__.~._____,_____._..__-.___.__.___._._-

Billie Pirner Garde 2 November 5, 1986 provides nc basis upon which to question the characterizations above and identifies no legitimate and overriding public interest warranting the release of the 54 documents or portions properly withheld under 5 U.S.C. 552(b)(5), (6) and (7)(C), and 10 C.F.R.9.5(a)(5),(6)and(7)(111). Accordingly, your appeal of-November 5, 1986 is denied.

This letter represents the final Agency action on your November 5,1986 FOIA appeal. Judicial review of this decision is available in the Federal District Court in the District where you reside or have your principal place of business, or in the District of Columbia.

Sincerely, i [~

Secretar of the Con ssion i

I i

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GOVERNMENT ACCOUNTABILITY PROJECT 1555 Connecticut Avenue, N.W., Suite 202 Washington, D.C. 20036 (202)232 8550 February 10, 1986 FREEDOM OF INFORMATION ACT REQUEST FREliOOM OF fMemtMAgeN ACT REQUEST Director Office of Administration h -[6.pf Nuclear Regulatory Commission /J Washington, D.C. 20555 6' O*M-h To Whom It May Concern Pursuant to the Freedom of Information Act U.S.C. 9552, the Government Accountability Project ("FOIA"),)S

(" GAP" requests copies of any and all agency records and information, including but not limited to notes, letters, memoranda, drafts,

. minutes, diaries, logs, calendars, tapes, transcripts, summaries, interview reports, procedures, instructions, engineering analyses, drawings, files, graphs, charts, maps, photographs, agreements, handuratten notes, studies, data sheets, notebooks, books, telephonc messages, computations, voice recordings, computer runoffs, any other data compilations, interim and/or final reports, status reports, and any and all other records developed in the investigation of all EEO complaints filed by employees of the Office of Inspection and Auditor against employees of the office of Inspection and Auditor.

This request includes all agency records as defined in 10 C.F.R. $9.3a(b) and the NRC Manual, Appendix 0211, Parts 1.A.2 and A.3 (approved October 8, 1980) whether they currently exist in the NRC official, " working", investigative or other files, or at any other location, including private residences.

If any records as defined in 10 C.F.R. $9.3a(b) and the NRC Manual, supra, and covered by this request have been destroyed and/or removed after this request, please provide all surrounding records, including but not limited to a list of all records which have been or are destroyed and/or removed, a description of the action (s) taken relevant to, generated in connection with, and/or issued in order to implement the action (s).

sr.

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GAP requests that fees be waived, because " finding the i

information can be considered as primarily benefitting the

general public," 5 U.S.C. $552(a)(4)(a). GAP is a non-profit, i

non-partisan public interest organization concerned with honest and open government. Through public outreach, the Project promotes whistleblowers as agents of government accountability.

j We are requesting the above information as part of an

! ongoing monitoring project on the adequacy of Region II and the

' NRC's efforts to protect public safety and health at nuclear

power plants.

4 I

For any documents or portions that you deny due to a specific FOIA exemption, please provide an index itemizing and i

describing the documents or portions of documents withheld. The

index should provide a detailed justification of your grounds for claiming each exemption, explaining why each exemption is t relevant to the document or portion of the document withheld.

l This index is required under Vaughn v. Rosen (I), 484 F.2d 820 (D.C. Cir. 1973), cert. denied, 415 U.S. 977 (1974).

We look forward to your response to this request within ten days.

i

Sincerely,,

t .

Billie Pirner Garde Director i Environmental Whistleblower Clinic

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Ms. Billie Pirner Garde Government Accountability Project Midwest Office IN RESPONSE REFER 3424 Marcos Lane TO F01A-86-85 Appleton, WI 54911 0CT 1 1986 l

Dear Ms. Garde:

l

, This is in partial response to your letter' dated February 10, 1986, in which you 1

. requested, pursuant to the Freedom of Information Act (FOIA), records developed )

in the investigation of all EE0 complaints filed by employees of the Office of Inspector and Auditor against employees of the Office of Inspector and Auditor.

The documents listed on enclosed Appendix A and portions of the documents listed i on enclosed Appendix C are being placed in the NRC Public Document Room,1717 H Street, NW, Washington, DC 20555, in folder FOIA-86-85 under your nar.e.

All of the documents identified on enclosed Appendix B and portions of the

documents identified on Appendix C are being withheld pursuant to the F0IA
Exemptions identified for each document on the appendices.

With regard to the information withheld pursuant to Exemption (5) of the F0IA i (5 U.S.C. 552(b)(5)) and the Comission's regulations at 10 CFR 9.5(a)(5), 1 4 documents 23 and 24 of Appendix B are being withheld under the deliberative l l process privilege. They reflect predecisional advice, opinions and recomen- i dations of the General Counsel's Office to the Commission concerning a matter i under investigation. Release of this information would tend to inhibit the i open and frank exchange of ideas essential to the deliberative process, j Documents 20 and 21 of Appendix B are draft documents and therefore also withholdable. Additionally, document 48 of Appendix B is being withheld under the attorney-client privilege. It contains confidential connunications between )

i an attorney and his client, the Comission, on a legal matter for which the  ;

Comission has sought professional advice.

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Tr.e information being(withheld pursuant to Exemptions (6) and (7)(C) of theF0IA

9.5(a)(6) and (7)(111) consists of names and identifying details the i disclosure of which would constitute a clearly unwarranted invasion of personal privacy.

Recently, action by another agency has precipitated a re-evaluation of l documents otherwise responsive to the request which have previously been i withheld from another requester. Once the re-review is complete, we will

! provide such additional documents, if any, that are determined to be subject to release under the F0IA.

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Ms. Garde Pursuant to 10 CFR 9.15 of the Commission's regulations, it has been determined that the information withheld is exempt from production or disclosure and that its production or disclosere is contrary to the public interest. The person responsible for this denial is C. Sebastian Alcot, Senior Attorney, Office of the General Counsel.

This denial may be ap)ealed to the Secretary of the Commission within 30 days from the receipt of t11s letter. Any such appeal must be in writing, addressed to the Secretary of the Commission, U.S. Nuclear Regulatory Commission, Washington, DC 20555, and should clearly state on the envelope and in the letter that it is an " Appeal from an Initial F0IA Decision."

Sincerely,

! 40 Donnie H. Grimsley, Director Division of Rules and Records Office of Administration

Enclosures:

As stated l

DISTRIBUTION: ,

DRR subj DRR rdg PGNorry .

JBartlett LRobinson DGrimsley SSchuyler F'06' ,

  • Concurred with changes noted l
    • See Previous Concurrence 1 0FC :**ADM:DRR  :*0GC  :  :  :  :  :

NAME :DGrimsley :SSchuyler  :  :  :  :  :

Dr.TE :10/16/86 :10/17/86  :  :  :  :  :

OFFICIAL RECORD COPY

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APPENDIX A RELEASABLE DOCUMENTS No. Date Description

1. 10/25/85 Letter from Bequai to Presberry re Shea EEO I complaint (1 page) j
2. 2/26/86 Letter from Cummings to Fitzgerald re: Sharon F.

Connel l y (1 page) l

3. 2/13/86 Letter from Cummings to Fitzgerald re: Sharon F.

Connelly (1 page)

4. 2/18/86 Letter from Fitzgerald to Cummings re Request for copy of document (1 page)
5. 2/14/86 Memorandum from aloot to Chairman Palladino and and Commissioners re: Lisa Shea EEO file (1 page)
6. 11/27/85 Memorandum from Alcot to Chairman Palladino and <

Commissioners re: Scheduling problems (1 page) l

7. 2/26/86 Letter from Cummings to Fitzgerald re Sharon R.

Contial l y (1 page)

8. 1/9/86 Routing and Transmittal Slip (1 page)
9. 12/19/83 Copy of Routing Slip w/ attachment, xerox copy of negatives (2 pages)
10. 11/22 Copy of Memorandum of Call from Carol to Sharon re: call from Presberry (2 pages) 11 3/5/86 Letter from Fitzgerald to Greenspun re:

Report concerning review of EED complainant records (1 page)

12. 2/21/86 Letter from Fitzgerald to Cumminos re: Copies of transcripts (1 page)  !
13. 11/8/78 Memorandum f rom Tucker to EED Counselors re: Rights of the ADO in Complaints of  !

Di scriminati on (2 pages), w/ attachments

  • Copy of FPM Letter 713-42, dated 3/13/78 (5 pgs) l
14. 7/25 Handwritten note from Lisa to Ron res schedule of audit (1 page)
15. 1/17/86 Note from Itzkowitz to Alcot re: Attached (1 page) 16 3/21/86 Letter from Alcot to Morrisette re: Messinger submission (1 page)

.' . i

17. Undatad Copy cf NRC OIA Chart (1 page)
18. 10/13/78 Copy of NRC OIA Organization Chart (1 page) 19, 7/84

! Copy of NRC Form 259 (1 page)

20. Undated Annotated copy of OPM Policy Statement On And Definition of Sexual Harassment (1 page)
21. 12/12/75 Memorandum from Mayer to Brady re Attached copy of " Memo of Understanding," w/ copy of " Memo" (3 pages) l
22. 9/27/82 Memorandum from Bird to All O&P Staff Members re: Security of official Personnel Folders, w/

attachment (2 pages)

23. 9/29/82 Staffing & Position Branch PROCEDURES FOR FILES MAINTENANCE & CONTROL (23 pages)
24. 9/18/85 Memorandum from Kerr to Shea, subject:

Discrimination Complaint (3 pages)

25. 9/26/85 Memorandum from Fitzgerald to Connelly re EED Counselor's Report (1 page)
26. 10/28/85 Letter from Kerr to Whom It May Concern re Tasks of D. Presberry (1 page)
27. 11/12/85 Memorandum from Bentson to Norry, subject:

" Security of Official Personnel Folders" (1 page)

28. 12/5/85 Note from Rosenthal to Shea re: EED complaint (1 page)
29. 12/9/85 Memorandum f rom Connelly to Presberry, subject:

"Your Request For An OIA Performance Appraisal Summary" (1 page)

30. 12/5/05 Note from Rosenthal to Shea re: EEO complaint (1 page) -
31. 12/6/85 Note from Shea to Rosenthal re Telephone call and meeting (1 page)
32.  !

12/17/85 Memorandum from Tucker to Shea, i subject: " Discrimination Complaint Investigation" 1 (1 page) i i

33. 12/30/85 Memorandum from Connelly to Presberry , subject:

"Lisa Shea EED Matter" (1 page) 1 l

_ _ _ _ _ _ _ _ _ _ _ _ _ - - - - ' ~

34, 1/28/06 Copy of U.S. NRC OPA Release No. 86-9 re: Connelly and Edles (1 page)

35. 1/28/86 Memorandum from Palladino to Connelly re; Administrative leave (1 page)
36. 1/10/86 Note from Shoemaker to Tucker re: Date change (1 page)
37. 3/27/86 Copy of NRC Announcement No. 43 re: Connelly (1 page)
38. 3/27/86 Memorandum from Palladino to Connelly re:

Termination of administrative leave (1 page)

39. 1/30- Copy of 4 newspaper articles discussing 4/30/86 Sharon Connelly (4 pages) 4/3/86
40. 1/10/85 Memorandum from Smith to Shea, subject:

" Notice of Final Interview With EED Counselor" (1 page)

41. 9/23/85 Letter from Kerr to Presberry re: Enclosed official authorization (1 page)
42. 9/23/85 Letter from Kere to Whom It May Concern re Investigation of Shea complaint (1 page)
43. 12/11/85 Memorandum f rom Alcot to Chairman Palladino and Commissioners, subject: " Sexual Harassment, Retaliation And Appropriate Agency Corrective Action" (6 pages), w/ attachment (27) pages. l
44. 1/29/86 Handwritten note f rom Walter to NJP (1 page)
45. 11/27 Undauthored handwritten note to Sharon and Geroge Messinger (1 page)
46. Undated Handwritten name of D. Presberry and address (1 page)
47. Undated Unauthored handwritten notes re ADO's and l Messinger (1 page)

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i APPENDIX B: WITHHELD RECORDS l

No. Date Description

1. None Unauthored, handwritten Memo / Record of Discussion re: Performance appraisal of employee (3 pages)

Exemption (6)

2. 10/82-9/85 Copies of employee's performance appraisal (13 Pages)

(Exemption (6)

3. None NRC Form 286 " Record of Disclosure" (Personnel Security Files) w/ annotations (5 pages)

Exeraption (6)

4. 9/85 Employee's Monthly Time Report (3 pages)

Exemption (2)

5. None Excerpt from affidavit of employee re: EEO complaint (5 pages)

Exemption (6), (7)(C)

6. 12/5/85 Letter from W.L. Glenn, Jr. to D. Presbury re:

Enclosed affidavit (1 page), w/ copy of affidavit of employee (37 pages)

Exemption (6), (7)(C)

7. 10/7/85 Affidavit of Lisa Shea (57 pages)

Exemption (6),(7)(C)

8. 10/29/85 Affidavit of EEO Counselor re: Employee EEO complaint (66 pages) l Exemption (6),(7)(C) -
9. 12/6/85 Affidavit of NRC employee re: EEO complaint I (74 pages) 1 Exemption (6),(7)(C) l l
10. 9/85 File of handwritten and typewritten notes re: l EEO complaint and performance appraisals l concerning Agency employees (84 pages) l Exemption (6),(7)(C) i
11. 1/27/86 Transcript of interview with L.Shea- re:

EEO complaint (186 pages)

Exemption (6),(7)(C)

12. 1/10/85 Memorandum from Kerr to Shea, subject:

" Complaint of Discrimination" ( 1 page) l Exemption (6) )

13. 5/21/85 Copy of DOL "Raqusst for Exanination And/Or Trcstmsnt ro: NRC cuployse ( 1 paga) Ex. (6)
14. 9/18/85 Memorandum from Connelly to Kerr, subject: "EEO Counselor's Report" ( 1 page) Ex.(7)(C)

. 15. 1/10/86 Copy of " Settlement Agreement And Release" botween the NRC and agency employee (2 pages)

Ex. (6),(7)(C)

16. 9/4/85 Computer printout of OIA employee promotion chart (2 pages), w/ attachment: List of promtions from APS (2 pages) Ex. (6)
17. 1985 Portions of L. Shea's personal calendar pages (7 pages) Ex. (6)
18. 10/28/85 Handwritten notes from interview of employee re:

EEO complaint (21 pages) Ex. (6)

19. Undated Handwritten notes of investigator re:

Educational background of employee (4 pages) Ex.

(6)

20. Undated Notes and drafts of 1986 OIA Audit Plan (7 Pages) Ex. (5)
21. Undated Draft NRC OIA Organization Chart , w/

annotations (1 page) Ex. (5)

22. 1/15/86 Memorandum from N. Palladino to G. Messinger re: ,

Detail (1 page) Ex. (6) l

23. 1/6/86 Memorandum from Aloot to Chairman Palladino and Commissioners Roberts, Aselstine, Bernthal and Zech re: Shea EEO documents ( 1 page) Ex. (5) 24, 3/14/86 Memorandum from Aloot to Hagee and Davis re:

Shea request for a meeting (2 pages) Ex. (5)

25. 1/8/86 Memorandum from Connelly to Chairman Palladino and Commissioners Roberts, Asselstine, Bernthal and Zech re: Shea EEO complaint (1 page)

Ex.(7)(C)

26. 4/23/86 Memorandum from n. Palladino to V. Stello re; Assignment of Messinger (1 page) Ex. (6)
27. 9/20/85 Memorandum from S. Connelly to Chairman Palladino re: EEO Complaint and Lisa Shea

. (2 pages) w/ attachment, 9/18/85 Memorandum from Connelly to Kerr re: EEO Counselor's Report (1 page) Ex. (6),(7)(C)

28. 9/13/85 Memorandum from N. palladino to W. Dircks re:

Complaint of Discrimination, w/ attachments (8 pages) Ex. (6),(7)(C) l l

29. 8/16/85 Typewritten notes re; Meeting of 7/22/85, subject: Promotion Discrimination (3 pages) Ex.

(6),(7)(C) 30.12/18/85 Letter from Aldrich to Fitzgerald re: EEO complaint (2 pages) Ex. (6),(7)(C)

31. 10/8/85 Memorandum from L. Shea to G. Bendit re: i Grievance (2 pages), w/ attachments: Memoranda '

from Collins to Shields re: Grievance meeting (3 '

pages) Ex. (6),(7)(C)

32. 9/10/85 Copy of Shen EEO complaint, w/ annotations (6 Pages) Ex. (6),(7)(C)
33. 12/16/85 Copy of Memorandum from Connelly to Rosenthal re: Investigation of EEO complaint (2 pages)

Ex. (7)(C) )

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34. 10/8/85 Memorandum from Shea to Kerr re: Transfer (1 page) Ex. (6)
35. 11/27/85 Memorandum from Collins to Fox re: Reassignment of Employee (1 page) Ex. (6),(7)(C) 1
36. 12/5/85 Memorandum from A. Rosenthal to J. Roe re: EEO i complaint of L. Shea (1 page) Ex. (7)(C)
37. 9/18/85 Memorandum from Connelly to Kerr re: EEO Counselor's report (1 page) Ex. (7)(C)
38. 9/16/85 4 copies of Memorandum from Smith to Kerr re:

EEO Counselor's report ( 3 pages each), 1 copy with attachments:

Appendix B and 9/16/85 Annotated version of No. 29 annotated list of promotions (1 page) Ex. (6),(7)(C) l I

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39. 9/18/85 Memorandum from Connelly to Kerr re: ERO Counselor's report (1 page) Ex. (6),(7)(C)
40. 9/20/85 Memorandum from Messinger to Connelly re: REO Counselor's report (1 page) Ex. (6),(7)(C)
41. 11/27/85 Letter from Connelly to Presberry re: EEO complaint (1 page) Ex. (7)(C)
42. 9/19/85 Memorandum from Smith to Olmstead re: Request to act as employee representative pursuant to 29 CFR 1613.214 (B) (1 page) Ex. (6),(7)(C)
43. 8/20/85 Note from Shea to Smith re: Career Promo-tions (1 page) Ex. (6)
44. 11/27/85 Note to R. Levi re: Summary of Interview (1
  • 45. 3/5/86 Msmorsndus fron Aloot to Fitzgarald ro: Trano-aittal of transcript extracto (1 psco) Ex. (6)
46. 2/11/86 Lsttor from Fitzgerald to Greenspun re: Report p*) Ex.concerning (7)(A) EEO complainant records (2 page
47. 3/27/86' Memorandum from Palladino to Edles re:

Termination of detail (1 page)

48. 1/14/86 Memorandum from Aloot to Chairman Palladino, subject: " Factors To Consider In Selecting An Appropriate Penalty In Employee Misconduct Cases" (2 pages) Ex. (5)
49. 7/26/85 Letter from of issues Gauthier to Lisa re: Verification (1 page) Ex. (6),(7)(C)
50. 8/20/85 Letter from Gauthier to Lisa re: Response to request (1 page) Ex. (6),(7)(C) l

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l APPENDIX C PARTIALLY WITHHELD DOCUMENTS No. Date Description

1. 12/9/85 Copy of EEO form " Notification of Rights of Alleged Discriminating Official (ADO)"

(1 page) Ex. (7) (C)

2. 1/22/86 Letter from Aldrich to Fitzgerald re:

Receipt of transcripts (1 page) Ex . (6)

3. 1/15/86 Letter from Fitzgerald to Aldrich re:

Enclosure of transcripts (1 page) Ex. (6)

4. 12/17/85 Memorandum from Tucker to Connelly re:

Investigation of EEO complaint (1 page)

Ex. (7) (C)

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