ML20209D082
| ML20209D082 | |
| Person / Time | |
|---|---|
| Issue date: | 04/21/1987 |
| From: | Chilk S NRC OFFICE OF THE SECRETARY (SECY) |
| To: | Garde B ENVIRONMENTAL WHISTLEBLOWER CLINIC, GOVERNMENT ACCOUNTABILITY PROJECT |
| References | |
| FOIA-86-215, FOIA-87-A-4 NUDOCS 8704290173 | |
| Download: ML20209D082 (2) | |
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,o s$$$ny" April 21, 1987 Ms. Billie Pirner Garde, Director Environmental Whistleblower Clinic Government Accountability Project Midwest Office 3424 Marcos Lane IN RESPONSE REFER Appleton, Wisconsin 54911 TO 87-A-4(86-215)
Dear Ms. Garde:
This letter is a partial response to your January 13, 1987 Freedom of Information Act (FOIA) Appeal 87-A-4CE (P6-215). On December 9,1986, Donnie Grinsley, Directnr of the Division of Rules and Records, notified you that you were being denied certain of the allegation management documents you had requested on March 24, 1986 under F0IA.
Several agency officials were responsible for the initial denials, and therefore, under 10 C.F.R. 6 9.15(a),
responses to your appeal are due you from both my Office and the Office of the Executive Director for Operations. This letter covers documents which are the primary concern cf Comission-level offices. These documents were listed as numbers 4, 8, 9,11, and 13 in Appendix D of Mr. Grimsley's December 9 response to you.
In response to your appeal, these five documents have been reviewed. On the basis of that review, I affirm the initial decisions to withhold the documents. Four of the documents are copies of a draft, together with comments on that_ araft, of an intraagency document governing the management of allegations. The fifth document is an intraagency document evaluating the then current system for managing allegations. All five documents were essential parts of the deliberative process which led to a revision of that system. Therefore, these items "compris[e] part of the process by which governmental decisions and policies are fonnulated." See NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 150 (1975).
Release of these documents could
" stifle honest and frank comunication within the agency", see Coastal States Gas Corp. v. Department of Energy, 617 F.2d 854, 866 (D.C. ITr.1980), and thus "injurl ej the quality of agency decisions". See NLRB v. Sears, 421 U.S.
at 151. Therefore, under Exemption 5 of 5 U.S.C. TTS2(b) and 10 C.F.R.
6 9.5(a), these documents are exempt from disclosure. Moreover, the fifth document, the internal evaluation of the then current system for managing allegations, is exempt under the critical self-evaluation privilege which Exemption 5 incorporates. See Washington Post Co. v. United States Air Force, 617 F. Supp. 602, 604 (D.D.C.1985); Ashley v. Department of Labor, 589 F. Supp. 901, 909 (D.D.C. 1983), quoting NLRB v. Sears, 421 U.S. at 151 n.18.
These documents do not contain any reasonably segregable portions which could be released, since the few portions which discuss publicly known facts or paraphrase established law and policy are either inextricably intertwined with exempt portions, see Neufeld v. IRS, 646 F.2d 661, 665-66 (D.C. Cir.1981), or 8704290173 870421 PDR FOIA CARDE87-A-4 PDR l
Ms. Billie Garde 2
so "relatively small" in proportion, and "so 'intershersed with exempt material that separation by the agency and policirg by the courts would impose an inordinate burden." Lead Industries Association v. OSHA, 610 F.2d 70, 86 (2nd Cir.1979); see also Doherty v. United States Departnent of Justice, 775 F.2d 49, 53 (2nd fli;.13H5) (existence of some exempt material in documents largely exempt does not require district court to undertake burdensome task of) analyzing some 300 pages of documents line-by-line).
This letter represents finel Agency action on your January 13, 1987 F0IA Appeal of the derials of the documents numbered 4, 8, 9,11,, and 13 in Appendix 0 of Donnie Grimsley's December 9,1936 notice to you. Judicial review of the denial of documents 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, l
hincerely f
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GOVERNMENT ACCOUNTADILITY PROJECT 1555.Comecticut Avenue N.W.. Suite 202 Wohngton, D.C. 20036 Government Accountability Project (202)232-8550 i Midwest Office 3424 North Marcos Lane Appleton, WI 54911 (414) 730-8533 s_nuary 13, 1987 Donnte H. Grimsly, N
N D2eector, Division of Hules and Hecords
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Appeal from an Initial F01A Cec:t,lon of FOIA 86-215.
Dear Mr. Grimsley; This is an apfca] p :r suant tn of i n f u r.r.c. t i o n A c t s r L ; c. c t i o n a ( 6 ) of the Freedom r2 c c.rf t.d e a r?
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'<ntal to e l e a :, "
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.u c ui:. ? n t s, rtquected by the Go v e r nm e-n t Ac cauntabill ty Proj e r ;.
By letter dated De ember 9,
'986, you i nf ormed re:vrds s ubj e c t to ca
" q u e r. t doctribad i n (.; p e ndi: us that
.litheld in their attrety er being ur t r.
part unJer because they c o r.t a i n F 0IA E*:empt io n 5, interagency r:o t available through discovery during litigation.
Disclosure of or intraagency records that are
.predicisional information would tend tc inhibit the open ano f r a rd e: change of ideas essential to the deliberative And where records held in their entirety, the facts areprocess.
i ne:< t r i cably intertwined with the predecisional information.
We believe we are e n i. i t l e d to the release of the documents being withheld.
We expect your response to this days of your receipt so that we can determineappeal within 20 working this matter further in'the courts.
whether to pursue Thank you for your c o n s i d e r a t i o n o. this appeal.
Sinccrely, P4 1-l i i c. Pirner Goede b i s e t t. o r, L nv i r o nt,,e n t a l r.
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INFORMATION ACT (FOIA) REQUEST N ees.f DEC 9 26 i
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PART 4. -RECORO/RELE ASE D)$ A NOT LOCATIO ESee c^ecaed bores-No egency records subpoet to the equest move beee located l
No._a, a g., reco, s -, to m_es,.. bo.~...d Agency recor$3 35.thect to ?e 'ebest t*at 3 e ident#4d e ACCead a 1717 H Street. N W. Wask.ngton. OC 3 e aeSadv 3.mlabee for psblic irupac*ce and CoCyng e tee NAC Pwblic Occw* eat e:.
V Agency we, autHect to the request that are idenM m Appendam are beang made D r
A Room,1717 H Street N W, Waeangton. OC. e a foeder under the F,OIA mu-cier and reawester name. 've&able for putAC ' uoecton and copyvig in the NR I
I The noeproorg'aay womon of t e propcsaH3 h
9 that you Sg*eed TO aCCeC1 tri 8 '94ohone Con ersatson w'h a member of my r# e ac* be.eg made evalab60 w
for pubhc aripoec.
and Coying at t*e NRC Pubbc Occu~rt Room.1717 H Street NW Was9gtoe. OC. in a foeder wnder the FOtA nur,ber and requecer ra-o
[nclosed e eformatson on how you PPav obtae eccess to and the Charges for Copying records D! aced e the NRC pun < Occut ent Room.1717 H Street N
.. Wasnington O Agency records subject to the rootest are enclosed Any ecchc4cee Pa ge 'o' Coces of the records Drown and pay"ont procedwres are noted in the Record $ subr ct to the roQvest beve been 'e's-ed to another Fe$eral egency'es' for revew and deoct resoorse to you.
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l PART ll.A-INFORMATION WITNHELD FROM PUBLIC' DISCLOSURE i
1 Cena.n eformaton m the rocces ed recors e bens ethe +d troen pobhc d.sc c%re ow want to the FCIA exer rtcna descrted e and for the r e
[ tiors B. C. and D. Any reeased poroons of the documeets for escts or+r part of the record a being ethheed are bemg rnede evela the NRC PutWic Document Room.1717 H Street. N W. Weemgtoe. DC. e a foeder nder t"e FOIA n6mter and re@eeter neme u
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1 MhQf6 FREEDOM Or INFORMATION ACT RESPOh FO'A NuYBE ASI OATE PAGT 118 - APPLICABLE FOIA E XEMPTIONS Recort$$'subr ct*to the request that ar3 described in the enclosed Appendices
_ are being withheld in their entirety or m part under FOIA e
E3ery;ons and for the reasons set forth below pursuant to 5 U.S.C. 552ibt and 10 CFR 9 54a) of N AC Regulations.
t The instiheid informaten a propedy clanfied pu suant to E=ecutive Order 12356 IExEMPTION 1) r
- N arthhead eformation resates soledy to the internal perscneen rutes and procedures of NRC iEXEVPTION 2
3 N asehead eformaDon a specAcattv esempted from pubic disclosu e by statute endcred f ExEVPTiCN J r
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$ec ca 141 ta$ of tee AtomC Emergy Act wh.ch Croba ts Pe d;sciosu e of Rest icted Data or For~er'= ses"cted Data a2 U S C 2?612165 r
' Sectnon 147 of the Atomic Energy Act which prohibits tee disciosu e of Unclassen d Safeguards informaten i42 U S C 2167L r
e a N er% eld ieformation s a trace secret or Commerc:al or traec.al eformatioe f*at 5 De ng withheid for !*e -easontsi endicated EuEVPTION al The efformat30n e Conssdered to be Confdenttal business proordfary) inforn aten The esformaton e cons.de ed to be proprietary enformaton pursuant to to CFR 2 790iditil t
N e'ifornaation was submitted and reCerved in Confidence from a fortegn source purs ant to 10 CFR 2 '3C s 2?
$ N we-hheld information consists of interagency or intraagency records that a'e not avaslable through disco.e's during letigaten Osclosure of credecesonal inforN? ion wud tend to enhabit IPS open and feark escPaage of sdeas esseat$ to the deisberative process Where rec r s s'e ethhead in their eeterety, the facts are enestnCaoN cturtwared Mth the orodocisenat informaten There also e's no reasonab8v segregabie factual portens because the reiease of the facts would permrt an eusrect esquery into the predecessonas process of the agency iEXEMPTION 5) 6 N moeibeid erformanon e eiemeted from pubhc d'sciosure beca se its disclosu e would result in a cleady onwarranted invasion of personal prwacy (EXEMPTION 61 r
7 N wr.aaeid informaton coesists of mestigatory records c:mcded for ta* eeforcemeat purocses and is beieg mtheerd for the reasontsi indicated IEXEMPTION 76 Danemre would inter ere mth an enforcement proceeding because it Could reveal the scoDe. direction and 'ocus of enforceraent e' forts and thus Could r
possety aflow (Bem to tame acten to sne d potential wrcegdoing or a volaten of NRC requ'ements from evestgators IEEEYPTION 7tAH Dawure would Constitute an n*arraaled envas.oe of pe'soca' Dnvacy IEXEMPTION 7'Cu e
, N eWormation consets of names of indeviduals and o!Per erformation the disclosu e of *bsch would revea <eatettes of Con 6dential sources ' EXEMPTION 7tOH r
PART 11 C-DENYING OFFICtALS Pu suses e 10 CFR 9 9 and or 915 of t*e v S Nuciear Regulatory C;r-m ssion regulatons. n has been determined that tN irformaten et* head e esempt from producten or dscies<e r
e and that as production or deciosu e is contrary to the pube.c interest The persons rescormb6e for tee deniat a e thcme or' oats identAed teio* as denying offic+s and the Director r
Onriumces of Ri.aus and Records, Othee of Admenstraten, for any den.a s that may be appeased to the Executive Director for Operations 'tooi DENYING OFFICIAL TITLE CFFICL RECORDS DEN ED.
APPELLATE OFFICIAL Mva b.0 2s 6 h M i 8 b ? M 6 81d %}r D S 5
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=s PART 18 D-APPEAL RIGHTS The dental by each denyvig officialidentined ir part li.C may be appealed to the Appeitate Official identified in that section. Any such appeal must be in wnting and rnust be made unthin 30 days of recript of this response. Appe86s rnust be addressed es appropriate to the Executive Oirector for Operations or to the Secretary of the Comfrussion, U S. Nuclear Regulatory Commission. Washington, DC 20565, and should clearfy state on the envelope and in the letter that et is an " Appeal from an inrtial FOIA Decision."
Ec Fomas ass (P-s 8 U.S. NUCLEAR REGULATORY COMMISSIOh easi FOIA RESPONSE CONTINUATION
Re: F0!A-86-215 APPENDIX C OATE DOCUMENT DESCRIPTION 1.
07/03/85 Note from C. Abbott to R. Brady regarding the Recommended Change to Draft Manual Chapter 0517 " Management of Allegations" (1 page)
le: F01A-86-215 APPEN0lX 0 (Documents to be Withheld in their Entirety under Exemption 5) 1.
Memo, 12/18/85, Taylor, IE, to Dircks, E00,
SUBJECT:
ANALYSIS OF VENDOR INVESTIGATIONS REFERRED TO THE OFFICE OF INVESTIGATIO written note to Dick Brady, NRR, from Tom Rehm, dated 12/20.
2.
Note, 6/27/85 Brady, NRR, to Fox. IE, et al RE:
(Please note that the enclosure is missing from this copy.ORAFT OF 0517 ON A See 4., below. )
3.
Handwritten note, 7/8/85, Bob 0'Connell, NMSS, to Dick (Brady) four marked-up pages of draft 0517
, attaching 4.
Note, 7/18/85, Lieberman, OELD, to Brady attaches 2., above with its enclosure, ma,rked up by 0ELO.NRR, COMMENTS 5.
Draft Manual Chapter 0517, 1/9/86, dated 1/28/86.
with hand-written NOTE TO ME (Brady),
6.
Oraft Manual Chapter 0517, 1/9/86, page, " Marked up. Ma rk 's comments. "with hand-written note on front cover Note,1/10/86, to Dick (Brady) from initials (Mark Williams) providin 7.
comments on 0517 and attaching a marked up draft of 0517.
- 8. Draft Manual Chapter 0517, undated, from Dick Hoefling, OELD, comments on 0517, with handaritten note, " Received 2/7/86 08"
- 9. Memo 9/19/84. Dircks, E00, to Of fice Directo e
- 10. Note, 2/24/85, to Shropsire et al from R. Brady, DRAFT MANUAL C I
MANAGEMENT OF ALLEGATIONS.
Feb 24, 1986.
This document probably should have been dated.
1 i
- 11. Note, 3/17/86, K. Cyr, UELD, to R. Brady, NRR, ORAFT MANUAL
- 13. OlA Report, " Review of NRC's Allegations Management System" M 1985 l
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GOVERNMENT ACCOUNTABluTY PROJECT 1555 C6mnecticut Avenue, N.W., Suite 202 Washington, D.C. 20036 (202)232-8550 March 24, 1986 FREEDOM OF INFORMaMN ACT REO'Nc-Kr. Donnie H.
Grimsley, Director bT8 d/$
Division of Rules and Records h j J-d$ -[6 Office of Administration U.S.
Nuclear Regulatory Commission Washington, D.C.
Dear Mr. Grimsley:
In light of the NRC's treatment of our March 6, 1986 appeal of FOIA 85-365 as untimely, we request that you not only reconsider the release of all documents specifically denied under your initial response, but also treat 86-183 as an entirely new request for the time period of May 13, 1985 to the present.
As you know, the FOIA does not specify how many days a requestor is allowed in which to file an appeal of initial agency denials.
We look forward to your response to this request within ten days.
Sincerely, 6
Billie P.
Garde BPG:43427 i
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