ML20210N290

Responds to Appeal of Denial of FOIA Request for Documents Re Plants.App a Documents Partially or Completely Withheld (Ref FOIA Exemption 5)

ML20210N290
Person / Time
Site:	Fermi
Issue date:	09/25/1986
From:	Chilk S NRC OFFICE OF THE SECRETARY (SECY)
To:	Puntenney J SAFE ENERGY COALITION OF MICHIGAN
References
FOIA-86-244, FOIA-86-A-149 NUDOCS 8610060448
Download: ML20210N290 (3)

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orrice or THE September 25, 1986 SECRETARY Ms. Jennifer E. Puntenney Executive Director Safe Energy Coalition of Michigan P.O. Box 331 IN RESPONSE REFER Monroe, MI 48161 TO 86-A-149(86-244)'

Dear Ms. Puntenney:

This letter responds to your August 19, 1986 appeal of documents in the Nuclear Regulatory Commission's July 16, 1986 response to FOIA 86-244.

In response to your appeal, I affirm the agency's initial action.

The documents or portions of documents withheld pursuant to Exemption (5) of the Freedom of Information Act (F0IA) contain the predecisional legal analyses, opinions, and recommendations of the staff and are also part of the agency's predecisional process concerning draft documents. The purpose of the deliberative process privilege is to " prevent injury to the quality of agency decisions." NLRB v. Sears Roebuck & Company, 421 U.S. 132, 151 (1975).

Disclosure of these predecisional documents and portions of documents would be likely to " stifle honest and frank communication within the agency." Coastal States Gas Corp. v. Department of Energy, 617 F.2d 854, 866 (D.C. Cir.1980).

Documents 1, 3, 4, 5 and 6 as listed in the July 16, 1986 response are also withholdable under Exemption (5) as draft documents. The withheld documents or portions of documents contain no reasonably segregable factual information as any factual material is inextricably intertwined with exempt portions.

Additionally, document 2 on Appendix A is being withheld pursuant to the attorney-client privilege incorporated in Exemption (5) of the F0IA.

Exemption (5) of the F0IA prohibits the disclosure of " confidential communica-tions between an attorney and his client relating to a legal matter for which the client has sought professional advice." Mead Data Central, Inc. v.

Department of the Air Force, 566 F.2d 242 at 252. This privilege applies to both facts and opinions given by an attorney to his client based upon those facts, see, e.g., Schlefer v. United States, 702 F.2d 233 at 245; Brinton v.

Department of State, 636 F.2d 600 at 605. Disclosure of this information would thereby constitute a clear violation of the attorney-client privilege.

Finally, 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 disclosure is contrary to the public interest.

This letter represents final agency action on your July 16, 1986 F0IA appeal.

Judicial review of the denial of documents is available in Federal District 8610060448 86092S 1 TE A-1 M N

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I Court in the district in which you reside or have your principal place of residence or business, or in the District of Columbia.

4 Sincerely,

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i' Gr 1 Sam id.Chil l Secretary of the Commission J

Attachment:

Appendix A d

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1. 10/9/85 Memorandum from Guy H. Cunningham to James Taylor, et al. Portions of the memorandum, the handwritten annotations, and the attachment denied under Exemption (5).

(Portion of memorandum released.)

2. 3/19/85 Memorandum from Guy H. Cunningham to Victor Stello, " Review of OI Report 3-85-013" (denied in entirety under Exemption (5) as, information covered by the attorney-client privilege).

3. Undated Draft proposed memorandum with attached draft' memorandum from Guy H. Cunningham to James Taylor, et al. (Drafts denied in entirety under Exemption (5).)

4. Undated Draft memorandum from Guy H. Cunningham to William F. Dircks with attached draft memorandum from William F. Dircks to the Commission. (Draft denied in entirety under Exemption (5).)

5. Undated Draft report on Reportability of Inadvertent (print date, Criticality at Fermi 2 under 10 CFR 50.72.

9/18) (Draft denied in entirety under Exemption (5).)

6. Undated Draft memorandum to the Commissioners,

" Fermi 2 OI Report." (Draft denied in entirety under Exemption (5).)

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j WASHINGTON, D. C. 20555 9, g

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..... JUL 16 19g8 Docket No. 50-341 Ms. Jennifer E. Punter.ney Safe Energy Coalition of Michigan P.O. Box 331 IN RESPONSE REFER Monroe, MI 48161 TO F01A-86-244

Dear Ms. Puntenney:

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This is in further response to your letter dated March 24, 1986, in which you requested, pursuant to the Freedom of Information Act (F0IA), three categories of records related to the Fermi 2 plant.

The documents listed on the enclosed Appendix D are drafts, records that contain information covered by the attorney-client privilege, or records that constitute advice, opinions and recommendations of the staff, as noted on the appendix. This information is being 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. The portion of the document which is indicated on the appendix to be released is being made available for public inspection and copying at the NRC Public Document Room (PDR), 1717 H Street, NW, Washington, DC 20555, in the PDR file folder under the above number and your name and in the NRC Local Public Document Room, Monroe County Library System, 3700 S.

Custer Road, Monroe, MI 48161.

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 disclosure is contrary to the public interest. The person responsible for this denial is Guy H. Cunningham, III, Deputy General Counsel.

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Ms. Puntenney

. s This denial may be appealed to the Secretary of the Commission within 30 days from the receipt of this 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,

0%E' sf ZL Donnie H. Grimsley, Director Division of Rules and Records Office of Administration

Enclosure:

As stated t

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I F0lA-86-244 Appendix D l

1. 10/9/85 Memorandum from Guy H. Cunningham to James Taylor et.al. Portions of the memorandum, l the handwritten annotations, and. the attachment i denied under Exemption (5)) (Portion of memorandum I released)

2. 3/19/85 Memorandum from Guy H. Cunningham to Victor Stello,

" Review of OI Report 3-85-013" (Denied in entirety under Exemption (5) as information covered by the lawyer-client privilege)

3. Undated Draft Proposed memorandum with attached draf t memorandum from Guy H. Cunningham to James Taylor et.al (Drafts denied in entirety under Exemption (5))

4, 0% dated Draft memorandum from Guy H. Cunningham to William F. Dircks with attached draft memorandum from William F. Dircks to the Commission (Drafts denied in entirety under Exemption (5))

5. Undateu Draft Report on Reportability of Inadvertent (print date, Criticality at Fermi 2 under 10 CFR 50.72 9/18) (Denied in entirety)

6. Undated Draft memorandum to the Commissianers, " Fermi 2 OI Report" (Denied in entirety under Exemption (5))

SAFE ENERGY COALITION OF MICHIGAN P.O. BOX 331 MONROE,. MICHIGAN 48161

h. arch 24, 1986 Freedom 'of Information Officer . WFORMATf0N

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U.S. Nuclear Regulatory Commission EMU Washington, D.C. 20555 FoI A -36 a4 </

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Dear Sir /Ms.:

Pursuant the Freedom of Information Act. 5 USC 552 et Seq. as amended, the Safe Energy Coalition of Michigan hereby request material as described belows (1) All internal memos and meeting minutes, and notes regarding De-Edison' Company and the Fermi 2 nuclear power plant located in Monroe County, Michigan , since fuel loading on March 20, 1985.

(2) All internal memos and correspondence regarding the Office of Investigations report and conclusions on the Fermi 2 July 2nd, 1985 criticality incident (3) All internal memos and correspondence regarding the report and conclusions from the Office of Investigator and Auditor investi-gation on the July 2nd, 1985 reactor criticality / out-of-se-quence control rod incident i

j Pursuant, 5 UsC 552 (a) (4)(A), we hereby request waiver of all fees in connection with this request "because furnishing the informa-tion can be considered primarily benefitting the general public." If any fees are to be charged in connection with this request, please notify us in advance for approval at the above address or at this telephone number 313-477-3W1 or 313-477-1670. This advance notice shall not be necessary if the fees are to be less than $ 15 00 in total.

We look forward to your response within ten (10) business days after you receive this request, as specified in the Act. (FOIA). Thank l you for your help in this matter. I Sincerely, y i 3 (/d @, h ' -

&c- 8 kn/im.nz

'Jenni'fer E. Puntenne I

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