ML20210S094
| ML20210S094 | |
| Person / Time | |
|---|---|
| Site: | Catawba  |
| Issue date: | 02/28/1986 |
| From: | Carr A DUKE POWER CO. |
| To: | Stello V NRC OFFICE OF THE EXECUTIVE DIRECTOR FOR OPERATIONS (EDO) |
| References | |
| FOIA-85-584, FOIA-86-A-14 EA-84-093, EA-84-93, NUDOCS 8605200432 | |
| Download: ML20210S094 (4) | |
Text
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DUKE Pownn GOMPANY n%*oM."G'n'"J. s..
LEGAL DEPARTMENT hiO*Jo"JaO.s..
P.O. Box 30189
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CHARLOTTE, N. G. 28242 ao m. 2570 w
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"U"Eso"#E*lliIrirw.m February 28, 1986 wiu l=*?.TIAE.sa.
Mr. Victor Stello, Jr.
Acting Executive Director for Operations U.S. Nuclear Regulatory Commission Washington, D.C.
20555 APPEAL OF INiilAL l'Oln Pme"'"
Re:
FOIA-85-584
- O N h$ -$ 9
/apeal From an Initial FOIA Decision h J
3~
Regarding Enforcement Action EA 84-93
Dear Mr. Stello:
i Pursuant to the Freedom of Information Act ("FOIA"), 5 U.S.C.
S 552(a)(6) and the NRC's regulations,10 C.F.R. S 9.11, Duke Power Company
(" Duke") hereby appeals from the " sixth partial response," dated January 24, 1986, which denied in part Duke's August 19, 1985, F0IA request for copies of all documents related to and underlying enforcement Action EA-84-93.1/ By 2
letter of December 26, 1985, Mr. Donnie H. Grimsley, Director, Division of Rules and Records, Office of Administration, informed Duke of the NRC's refusal to release certain "predecisional information" which constitutes
" advice, opinions and recommendations of the staff."
As identified in Mr. Grimsley's letter, the persons responsible for this denial are Mr. Grimsley and Mr. James M. Taylor, Director, Office of Inspection and Enforcement. They based this denial on Exemption 5 of F0IA, 5 U.S.C. S 552(b)(5), and the corresponding provision in the Commission's regulations, 10 C.F.R. S 9.5(a)(5). Duke objects to the NRC withholding these records on the grounds that the cited exemption does not justify withholding this relevant information.
At the outset it should be noted that Duke's ability to object effectively to the NRC withholding these documents is, of course, hampered by the fact that Duke is not aware of the exact nature and content of each EihE 1_ / This request has also been the subject of correspondence with Mr.
Dircks, dated October 25, 1985, and December 9, 1985, as well as six partial responses, dated November 4, 1985, December 10, 1985, December 26, 1985, January 7,1986, January 8,1986, and January 24, 1986. On January 9, 1986, January 27, 1986, February 6, 1986 and February 7, 1986, Duke filed respective appeals from the December 10, 1985, "second partial response," the December 26, 1985 " third partial response," the January 7, 1986 " fourth' partial response," and the January 8, 1986 "fif th partial response."
B605200432 860228 PDR FOIA CARR86-A-14 PDR
Mr. Victor Stello, Jr.
'ebruary 28, 1986 F
Page.
document withheld.
In some instances the description of the documents withheld is so perfunctory as to prevent Duke from making a substantive response. Simply to identify withheld material as " handwritten notations" on a. Duke document twenty-five pages in length 2/, with not even a hint concerning the nature or content of those notations, is a legally inadequate response. See, e.g., Mead Data Central v. Department of the Air Force, 566 F.2d 242, 260-61 (D.C. Cir. 1977); Vaughn v. Rosen, 484 F.2d 820, 825-28 (D.C. Cir. 1973), cert. denied, 415 U.S. 977 (1974).
Duke is entitled to a useable description of each withheld document to aid it in determining whether the material is relevant to Duke's challenge to the Staff's enforcement action.
Id.
However, that is lacking in the sixth partial response.
In addition, Duke is concerned that the withheld documents might not be completely described and/or identified, because an examination of the released documents discloses that some of those documents have not been completely described.
For example, Document V-3 is described as "08/30/84 Letter to A.S. Rosenthal et al. from G.E. Johnson re: Hearing on Safety Issues in the Catawba Proceeding - Accession No. 8409040463.
(1 l
page)." Yet when one locates that document in the Public Document Room, it is found in fact to consist of that one page letter plus ten pages of attachments, the existence of which is not indicated in the FOIA response.
Duke is concerned that the possibility exists that undescribed substantive attachments have been similarly omitted from the descriptions of the withheld documents, and thus its ability to appeal the withholding of those i
documents might have been compromised.
Duke therefore anticipates that when the Office of the Executive Director for Operations reviews each withheld document in response to this appeal, that office will, among other things, confirm the accuracy of each description. And that, if the NRC continues to withhold any of these documents after this appeal, the agency will identify those documents with greater specificity so as to allow Duke to pursue intelligently administrative reconsideration and judicial review. With this present handicap in mind, however, Duke herein provides the legal basis for this FOIA appeal.
It is fundamental FOIA law that the " basic policy" of FOIA "is in favor of disclosure"; thus " Congress carefully structured nine exemptions from the otherwise mandatory disclosure requirements." NLRB v. Robbins Tire & Rubber Co., 437 U.S. 214, 220 (1978).
Furthermore, it is clear that a court will carefully cor. sider the nature of each individual document that is withheld, rather than treating documents or files of documents as a whole.
I_d. at 229-30. Accordingly, in responding to this appeal,*the Office of the i
Executive Director for Operations needs to review the entirety of each document that is withheld, and release those portions that are not themselves independently exempt from disclosure.
Disclosure is particularly app opriate in this.;ase because these documents underlie at least in part the NRC Staff's determination to issue, on August 13, 1985, a Notice of Violation and Proposed Imposition of Civil Penalty, EA 84-93, against Duke. As Duke has explained, the requested 2 / Document X-1A.
Mr. Victor Stello, Jr.
February 28, 1986 Page -
documents are significant to its ability to determine what actions it wishes to take with respect to EA 84-93. The complex factual and legal questions at issue in that enforcement action make it imperative that Duke be able to assess the basis for the NRC's actions.
Exemption 5 permits an agency to withhold " inter-agency or intra-agency memorandums or letters which would not be available by law to a party other than an agency in litigation with the agency." 5 U.S.C. S 552(b)(5); cf. 10 C.F.R. S 9.5(a)(5).3/ Mr. Grimsley's January 24th letter withholds three separate documents or portions of documents pursuant to Exemption 5, as identified on Appendix X to that letter.4/ A judicially recognized limitation on the scope of Exemption 5 requires that at least one of these withheld documents 5/ be released pursuant to FOIA because that document represents the NRCTs " working law":
it provides interpretations or guidelines with precedential weight that the agency follows, thereby affecting the public, and thus must be disclosed.
E.g., NLRB v. Sears, Roebuck & Co., 421 U.S.
132, 152-53 (1975); Schiefer v. United States, 702 F.2d 233, 237 (D.C. Cir.1983); Taxation With Representation Fund v. IRS, 646 F.2d 666, 682-84 (D.C. Cir. 1981); Exxon Corp. v. FTC, 466 F.
Supp.
1088,1097-98 (D.D.C.1978), aff'd, 663 F.2d 120 (D.C. Cir.
1980).
This document, withheld pursuant to Exemption 5, appears to be a memorandum which sets forth the agency's view on whistleblower protection in general and as applied to Duke Power Company.
As such, this document must be viewed as setting forth the standard that was followed by the agency and therefore should be disclosed.
Additionally, all three of the documents in Appendix X should at the very least be released in redacted form, with all factual information contained therein revealed.6/ E.g., ITT World Communications v. FCC, 699 F.2d 1219,1236 (D.C. Cir.1983), rev'd on other grounds, U.S.
3 / To the extent the NRC's regulations attempt to exclude under Exemption 5 more than the statute itself allows to be excluded, the regulations are void. As discussed in the text, infra, the cases interpreting the scope of Exemption 5 of FOIA focus on the function served by the document within the agency. The NRC's regulations, however, permit withholding a document solely because the document was prepared for internal use within the agency.
See 10 C.F.R. S 9.5(a)(5)(f). Notwithstanding this regulation, a document must be disclosed if it meets the legal standards in the statute as interpreted by the courts and discussed herein.
4 / Documents X-1, X-1A, and X-2.
-5 / Document X-2, "IE:ES Notes on ERA Section 210 cases and ASLB 6/22/84 PID Duke Power Co. (4 pages)."
re:
6 / For example, Document X-1, entitled " Synopsis of Duke's April 22, 1985, letter re:
Catawba 2.206.
(1 page)," would appear by definition to consist primarily, if not exclusively, of factual information that must be disclosed.
l
)
l Mr. Victor Stello, Jr.
February 28, 1986 Page 104 S. Ct. 1936 (1984);7/ Coastal States Gas Corp. v. DOE, 617 F.2d 854, 867 (D.C. Cir.
1980); Exxon Corp. v. FTC, 466 F. Supp. at 1097-99 (D.D.C.
1978). Yet the January 24th letter does not even contain the usual bare, conclusory assertion that "there are no reasonably segregable factual portions."!/ In order for the NRC's FOIA response to withstand judicial scrutiny, all segregable factual portions must be released, with any assertedly exempt.information specifically described. See, e a, Mead Data Central v. Department of the Air Force, 566 F.2d at 260-62; Vaughn v. Rosen, 484 F.2d 820, 825-28 (D.C. Cir.1973), cert. denied, 415 U.S. 977 (1974).
Accordingly, on this administrative appeal, the Office of the Executive Director of Operations should correct this deficiency in the FOIA response; all segregable factual material contained in the three documents withheld pursuant to Exemption 5 must be released.
As demonstrated above, none of the documents withheld by Mr. Grimsley's January 24, 1986 response falls under the claimed exemption from disclosure.
Duke therefore submits that production of this information is compelled by the Freedom of Information Act.
Sincerel,
e bert V arr, Jr.
Assistan. eneral Counsel i
AVCjr/cir cc: Chairman Nunzio J. Palladino Commissioner Thomas M. Roberts Commissioner James K. Asselstine Commissioner Frederick M. Bernthal Commissioner Lando W. Zech, Jr.
Mr. Samuel J. Chilk Mr. James M. Taylor Ms. Jane A. Axelrad Mr. Donnie H. Grimsley 7 / In ITT World Communications, the Court of Appeals had decided consolidated appeals concerning, ir.ter alia, the Sunshine Act, a District Court injunction against ultra vires agency actions, and the FOIA. The Supreme Court reversed the Court of Appeals on the Sunshine Act and ultra vires issues, but did not review the FOIA issue.
! / Compare the second, third, and fourth partial responses to this FOIA request, dated respectively December 10, 1985, December 26, 1985, and January 7, 1986, each of which contained this assertion.
.