ML20211G726
| ML20211G726 | |
| Person / Time | |
|---|---|
| Issue date: | 08/25/1999 |
| From: | Randall K NRC (Affiliation Not Assigned) |
| To: | NRC (Affiliation Not Assigned) |
| References | |
| NUDOCS 9909010014 | |
| Download: ML20211G726 (14) | |
Text
ex OFFICE OF NUCLEAR REA CTOR REGULA TION
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Office Letter Transmittal TO:
All NRR Employees
SUBJECT:
NRR OFFICE LETTER NO.104, REVISION 3, " FREEDOM OF INFORMATION ACT REQUESTS" PURPOSE:
This procedure supersedes NRR Interim Guidance for Processing Requests submitted under the Freedom of information Act (FOIA) dated s
June 30,1998, and acts as a supplement to Management Directive (MD) i and Handbook 3.1, which set forth the procedures for processing (FOIA) requests. These guidelines ensure that requests are thoroughly researched and that responses are complete and timely in accordance with the 1996 Electronic FOIA Amendments of the Freedom of information r,., and Title 10 of the Code of Federal Reculations (10 CFR) Part 9.
Revision 3 incorporates the latest changes established by the Office of the Chief Information Officer, OClO.
DIVISION OF ORIGIN:
Division of Program Management, Policy Development and Analysis Staff CONTACT:
KimBerly Randall,415-1236 DATE APPROVED: August 25,1999 O
AVAILABILITY:
Debbie McCain,415-1219
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1 NRR OFFICE LETTER NO.104, Revision 3 I
FREEDOM OFINFORMATION ACT REQUESTS POLICY lt is the policy of NRR to establish and implement guidelines for processing requests submitted under the FOIA. The FOIA requires prompt responses from all Government agencies to specific requests for information. The FO!A provisions have been used by businesses, citizens, and State and local governments to obtain records concerning how the Government conducts the public business. Any person may submit an FOIA request.
OBJECTIVES NRR has the responsibility to do the following: (1) Provide all records subject to the request in NRR's possession, consistent with pertinent directives and guidance; (2) identify other NRC offices that might have records subject to the FOIA request; (3) screen the records before releasing them to ensure that information that should be withheld is properly marked before forwarding it to NRC's FOIA/PA Section, CIO; (4) support the decision to withhold information by citing the appropriate exemption and providing " foreseeable harm" statements, and by j
appropriately handling and safeguarding allegation information; and (5) comply with timeliness i
guidelines a; stipulated in this guidance.
BACKGROUND l
On June 24,1999, the OClO issued the revied MD 3.1 to reflect changes to organizational responsibilities, authorities, and definirig dutics of the senior FOIA management officials. The major changes include requests involving allegation records; a sequirement to explain why records are categorized as " personal records"; clarifying the use of appendices; process I
requests involving records of senior management meetings, foreseeable harm statements, and the changes addressed in the 1996 Electronic FOIA Amendments of 5 U.S.C. 552.
DEFINITIONS Aaency records - A record in the possession and control of the NRC that is associated with l
Govemment business. An agency record does not include such records as -
Publicly available books, periodicals, or other publications that are owned or copyrighted by other than non-Federal sources.
Records solely in the possession and control of NRC contractors.
Personal records in the possession of NRC personnel that have not been circulated or shared with any NRC staff members, were not required to be created or retained by the NRC, were not commingled with agency records and can be retained or discarc'ed at the author's sole discretion, or records of a personal nature that are rd associated with any Government business.
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2 Nonsubstantive information in logs or schedule books of the Chairman or e
Commissioners, uncirculated except for typing or recording purposes.
Appeals - An appeal by an FOIA requester to the agency's denial of information requested, inadequacy of search, or lack of response to an initial request. A requester must file an appeal, within 30 days of the NRC response. The office that denied the records is required to review its decision, consider any new information presented in the appeal letter, and determine whether the information still needs to be withheld. In the case of an appeal for inadequacy of search, the office will conduct another search for records and consider any new information presented in the appeal letter. These decisions will be reviewed by the Director or the Deputy Office Director.
Exemotions - The bases for withholding information from public disclosure. There are nine i
exemptions under which information may be withheld. The four most frequently used in NRR i
are Exemptions 4 (Proprietary),5 (Predecisional),6 (Personal), and 7 (Law Enforcement).
FOIA reauests - Handwritten, typed, faxed, or e-mailed requests filed under the provisions of the FO!A (5 U.S.C. 552) by any individual for records maintained by agencies within the Executive Branch of the Federal Government.
" Foreseeable Harm Statement"- A written statement describing the actual potential for harm j
that could be caused by a disclosure to justify withholding exempt information when the determination to withhold is discretionary rather than mandatory.
Personal records - Documents of a private or unofficial character that ordinarily pertain only to an individual's personal affairs and do not affect the conduct of agency business. A personal record also includes notes that are prepared by an NRC employee pertaining to agency business that (1) have not been circulated or shared with others in the course of transacting NRC business, (2) are prepared for the individual's own use, (3) were not required to be created or retained by the NRC, (4) can be retained or discarded at the author's sole discretion, or (5) were not used as a substantive part in writing an agency record. (See enclosure).
Perfected reauest - An FOIA request for records that adequately describes the records sought, that has been received by the FOIA/PA Section, and for which there are no remaining questions about the payment of applicable fees, the scope of the request, need for verification of identity, or other matters that preclude processing of the request.
Review time - Period devoted to examining records retrieved in response to a reauest to determine whether they are exempt from disclosure in whole or in part. Review time also includes the period devoted to examining records to determine which FOIA exemptions, if any, are applicable and the identifying records, or portions thereof, to be disclosed.
Record -Information in any format, including an electronic format, such as, any book, paper, map, drawing, diagram, photograph, brochure, punch card, magnetic tape, paper tape, sound recording, pamphlet, slide, motion picture, or other documentary material, regardless of form or characteristics. A record does not include an object or an article such as a structure, furniture, a tangible exhibit or model, a vehicle, or a piece of equipment.
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3 Search time - All time spent looking for records, either manually or using existing computer programs, that respond to a request, including a page-by-page or a line-by-line identification of responsive information within the records.
SusDension -The period of time between the actual date of receipt of an FOIA/PA request and the date the request is " perfected," which does not count as processing time.
Workina davs - Monday through Friday, except legal holidays.
RESPONSIBILITIES AND AUTHORITIES Director / Deputy Office Director implements FOIA procedures for responding to all requests for documents that the e
respective offices originated or for which offices have primary responsibility.
Reviews the denying division's decision when there is an appeal and determines if denial should be sustained or overruled.
Division Directors Review all FOIA requests that are assigned to their divisions.
Agree to the " harm statement" and the exemption recommended by the staff assigned to e
respond to the request.
When Exemption 7A, " investigatory Records,"is involved, ensure that the records denied in total are directly related to the investigation itself.
Signs each FOIA response (after it has been processed by the NRR FOlA coordinator) that contains allegation or safeguards information.
Senior FOIA Official - Chief, Information Management Branch in addition to the duties stated in MD 3.1, Oversees the FOIA program in the office to ensure compliance with pertinent directives e
and guidance.
Reviews and signs each FOIA response to ensure that all exemptions are properly identified; all documents are correctly identified as to their releasibility; records identified i
as responsive to the request appear to be complete; and that the response to the FOIA/PA Section is complete. This review is performed with special attention to allegation-related information, investigative records, records to oe referred to other offices, and other sensitive records to ensure that reviews by appropriate NRC staff members or officials have taken place.
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4 Signs each FOIA response after it has been processed by the NRR FOIA coordinator.
Reviews the NRR FOIA performance report to ensure that NRR FOIA actions are receiving proper attention.
Assigned Staff Member Responding to the FOIA Request l
Within 2 workina days of receipt of an initial FOIA request, provides estimates of the e
time to be expended searching for records and reviewing records snd the number of pages involved, as requested by the NRR FOIA coordinator.
l When told to proceed by the NRR FOIA coordinator, performs a thorough search for all l
e records, including office files, Central Files, Public Document Room (PDR) files, e-mail files, and all applicable computer files or information databases for any records subject to an FOIA request.
Determines whether record (s) or portions of record (s) should be withheld in their entirety or partially withheld from disclosure in accordance with this office letter and MD 3.1.
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Provides to the NRR FOIA coordinator within 7 workina days a memorandum transmitting all records subject to the request along with typed chronological listi.ngs of the records as stated in the requesting memorandum. An electronic version of the i
l listings should be sent by e-mail to the NRR FOIA coordinator, as well as any records located that are in electronic format (e.g., e-mail records or letters and memoranda j
i retrieved from Wordperfect files).
l NRC Form 496," Report of Staff Resources for Processing FOIA Requests," indicating e
the actual time spent for search and review must accompany the response.
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Ensures that appendices containing chronological listings of identified records do not l
contain information being withheld in the actual records (e.g., alleger names must be replaced with the word " individual").
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Ensures that FOIA responses contain.ing allegation information are clearly identified'with l
a special blue cover that states: " WARNING-SENSITIVE ALLEGATION MATERIAL."
i Ensures that FOIA requests that capture ongoing or closed allegation-related information e
are coordinated and reviewed by the NRR allegation coordinator before they are i
I submitted to the NRR FOIA coordinator.
When the request involves proprietary information for which the staff has not issued a e
proprietary determination, the staff must supply the transmittal letter and supporting affidavit that accompanied the proprietary submittal. When the proprietary determination has been issued, the licensee / vendor request for withholding and NRC's determination letter are needed. In both cases, copies of proprietary information subject to the request must be provided to the NRR FOIA coordinator even though it may be withheld from public disclosure.
5 Personal records are typically not considered agency records subject to an FOIA e
request. If an employee has responsive records in the office that the employee believes are personal records, these records should be submitted in a separate envelope with a completed consideration checklist (see enclosure).
NRR Allegation Coordinator Reviews all records presented by the staff in response to an FOIA request involving e
allegation-related information and recommends to the NRR FOIA coordinator how those records should be handled, including identifying records that may be released in their entirety, records that should be redacted, and records that should not be released.
Reviews and concurs on proposed FOIA responses that contain or address allegation-related information to ensure these are handled appropriately.
NRR FOIA Coordinator or Alternate Assigns FOIA request to appropriate individual (s)/ organization (s) with instructions on e
providing estimates and performing searches, including office, personal computer, database information, NUDOCS, ADAMS, and Central Files.
e Reviews response for completeness and ensures that records have been screened and properly marked when information is withheld, or partially withheld, and provides a Harm Statement as necessary before transmittal of NRR's response to the FOIA/PA Section.
Prepares a denial memorandum identifying the records to be denied.
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Reviews response and transmits document to the FOIA/PA Section after senior FOIA official review.
Meets with the NRR contact (s) and the FOIA/PA Section to resolve questions of scope e
and specificity. Arranges conference calls with the FOIA/PA Section, the requester, and NRR contact (s), and schedules appointments with the Office of the General Counsel as required.
Prepares NRR's FOIA performance report for distribution to NRR management.
Maintains a filing system for each FOlA request.
BASIC REQUIREMENTS A. For initial FOIA requests All FOlA requests should be considered high-priority actions.
e If an employee receives an FOIA request directly from a requester, the request should immediately be forwarded to the FOlA/PA Section (T-6-D-8).
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6 The division (s)/ contact (s) conducting the search should NEVER contact the requester.
Upon receipt of an FOIA request, the NRR FOIA coordinator will assign and hand e
i carry it to the appropriate division (s)/ contact (s) with a copy to the Branch Chief and the Division Director within 1 workina day, NRR must provide estimates to the FOIA/PA Section within 4 workina days. The e
division (s) has (have) 2 workina days to send estimates by e-mail to the NRR FOIA coordinator who will, in turn, compile all estimates and send NRR's estimate j
by e-mail to the FOIA/PA Section. Estimates are made for search and review time and for the number of pages to be released.
Unless directed to " suspend" the request, NRR must respond to the FOIA request within 10 workina days from the initial date of assignment. The division (s) has (have) 7 workina days to send a response to the NRR FOIA coordinator, who will consolidate and send the response to the FOIA/PA Section within 3 workina days.
If the request is " suspended," the FOIA/PA staff will notify the NRR FOIA e
coordinator, who will advise the division (s)/ contact (s) via e-mail. At this time, the request is suspended and no time counts against NRR for the request.
Once the request is " perfected," the FOIA/PA Section will notify the NRR FOIA e
coordinator who will notify the division (s)/ contact (s) by e-mail. NRR must respond to the FOIA request within 10 workina days from the " perfected" date. The division (s)/ contact (s) has (have) 7 workina days to send a response to the NRR FOIA coordinator, who will consolidate and send the response to the FOIA/PA Section within 3 workina days.
When told to proceed by the FOIA coordinator, search office files, personal files, j
and all applicable computer files or information databases for any information subject to the FulA request.
E-mail records must indicate the name of the author, the name of the recipient, and their respective offices.
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Records should be grouped by (1) records being released in their entirety, (2) e records already available in the PDR, (3) records to be referred to other offices / agencies / companies, and (4) records being withheld in part and withheld in their entirety.
The NRR FOIA coordinator should be given a memorandum transmitting all records subject to the request along with typed chronologicallistings of the records as stated in the requesting memorandum. An electronic version of the listings should be sent by e-mail to the NRR FOIA coordinator, as well as any records located that are in electronic format (e.g., e-mail records or letters and memoranda retrieved from Wordperfect files).
7 NRC Form 496," Report of Staff Resources for Processing FOIA Requests,"
e indicating the actual time spent for search and review must accompany the
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if records being withheld in part and withheld in their entirety exist in the same e
document, those portions proposed to be withheld should be bracketed in red and the applicable FOlA exemption should be noted. Ensure that the division director agrees with the exemption (s) quoted and the harm statement before sending them to the FOIA coordinator. Provide a " sanitized"(marked with red brackets) and "unsanitized"(unbracketed) copy of the documents, when practical, for any other changes that may need to be made to the bracketing.
Although personal records are typically not considered agency records subject to an e
FOIA request, if an employee has responsive records in the office that the employee believes are personal records, these records should be submitted in a separate envelope with a completed consideration checklist (see enclosure).
B. For Referrals and Appeals There is no need to provide estimates to process referrals and appeals.
NRR nas 8 workina days to respond to an FOlA referral or an appeal. The division (s) has(have) 5 workino days to prepare and provide the response to the NRR FOlA coordinator. Respcases to appeals and their harm statements must be 1
approved by the Director or the Deputy Office Director.
C. Allegations in addition to the Special Procedures for Processing Allegation Records stated in MD 3.1, the following also applies:
e Records containing allegation information must be coordinated with the NRR j
allegation coordinator. The NRR allegation coordinator will perform all reviews relating to allegation information and will determine which records are releasable, not releasable or partially releasable.
Allegation records provided in response to an FOIA request should have all exempt information bracketed and appropriate exemptions identified. This bracketing should also be applied to electronic records created by NRR that are responsive to an FOIA request (e.g., a database report). In redacting allegation-related j
documentation, the following types of information must be considered in the bracketing process:
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Descriptive information that is specific enough in circumstances e
such that it could lead a knowledgeable individual to infer who the alleger is (i.e., fingerprinting information). Examples include:
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Alleger notification of management References to condition reports or other trackable reports i
generated by the alleger I
References to specific work activities, procedure usage, or
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other information that could narrow the pool of' individuals who could be the alleger Personal privacy information of individuals accused of wrongdoing.
Appendices created to support the records submitted by divisions will not contain any information being withheld in the actual records (e.g., allegers' names must be replaced with the word " individual").
Before releasing the records or appendices to the FOlA/PA Section, the NRR FOIA e
poordina+or will ensure that the appendices and documents are reviewed and that supporting concurrences have been obtained from the NRR allegation coordinator and the NRR senior FOIA official.
j D. Exemptions Exemption 1: Classified Information Exemption 1 includes those records "(a) specifically authorized under crite.n:a established by an Executive order to be kept secret in the interest of national defense or foreign policy and (b) are In fact properly classified pursuant to such Executive order."
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Exemption 2: Internal Rules and Practices Exemption 2 includes that information "related solely to the internal personnel rules and practices of an agency."
Exemption 3: Information Exempted by Statute Exemption 3 includes those records "specifically exempted from disclosure by statue, provided that such statue (a) requires that the matters be withheld from the public in such a manner as to leave no discretion on the issue, or (b) establishes particular criteria for withholding or refers to particular types of matters to be withheld."
Exemption 4: Proprietary information Exemption 4 includes " trade secrets and commercial or financialinformation obtained from a person and privileged or confidential" referred to in MD 3.1 as " confidential business or proprietary information."
9 Exemption 5: Predecisional Information Exemption 5 involves " interagency or intragency memoranda or letters which would not be available by law to a party other than an agency in litigation with the agency."
Exemption 6: Personal Privacy information Exemption 6 involves " personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy."
Exemption 7: Investigatory Records Exemptions 7(A) through (F) involve " records or information compiled for law enforcement purposes, but only to the extent that the production of such law enforcement records or information"-
"(A)
Could reasonably be expected to interfere with enforcement proceedings.
"(B)
Would deprive a person of a right to a fair trial or an impartial adjudication.
"(C)
Could reasonably be expected to constituts an unwarranted invasion of personal privacy.
"(D)
Could reasonably be expected to disclose the identity of a confidential source, including a State, local, or foreign agency or authority or any private institution which furnished information on a confidential basis, and, in the case of a record or information compiled by a criminallaw enforcement authority in the course of a criminalinvestigation or by an agency conducting a lawful national security intelligence investigation, information i
furnished by a confidential source.
"(E)
Would disclose techniques and procedures for law enforcement investigations or prosecutions, or would disclose guidelines for law enforcement investigations or prosecutions if such disclosure could reasonably be expected to risk circumvention of the law.
"(F)
Could reasonably be expected to endanger the life or physical safety of any individual."
Exemption 8: Records of FinancialInstitutions Exemption 8 involves matters that are " contained in or related to examination, operating, or condition reports prepared by, on behalf of, or for the use of an agency responsible for the regulation or supervision of financialinstitutions."
Exemption 9: Oil and Gas Well Data Exemption 9 involves " geological and geophysical information and data, including maps, concerning wells."
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10 EFFECTIVE DATE This office letter revision is effective immediately.
REFERENCES Code of Federal Reaulations 10 CFR Part 9, "Public Records."
10 CFR 2.790, "Public inspections, exemptions, request for withholding."
United States Code Freedom of Information Act, as amended (5 U.S.C. 552).
NRC Management Directives 3.1. " Freedom of Information Act," Volume 3, Part i 3.2, " Privacy Act."
3.4, " Release of information to the Public."
8.8, " Management of Allegations."
Enclosure:
As stated cc:
W. Travers, EDO S. Reiter, CIO (Acting)
M. Knapp, DEDR J. Funches, CFO F. Miraglia, DEDE P. Norry, DEDM H. Miller, RI L.Reyes,R!!
J. Caldwell, Rlli E. Merschoff, RIV SECY OGC (5)
PUBLIC m
Encloauro
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Personal Record Consideration Checklist I,
. consider the attached record (s) identified on the enclosed appendix, which fall under FOIA
, to be m " personal" records" not agency records. If you determine these records to be " personal" records, I do I do not object to their release. In submitting these records,it is my understanding that providing copies of these records to the FOIA/PA Officer and OGC for review does not automatically 1
make these records " agency records." Should these records be deemed " personal" records and I have indicated that I object to their release, the records will be returned to me by the FOIA/PA Officer. I have answered the questions below and when necessary, provided explanations.
YES NO Creation - Was the document created by an agency employee on agency time, with agency materials, at agency expense? (If not, then it very likely is not an " agency record," on that basis alone.)
Content - Does the document contain " substantive"information?
(If not, then it very likely is not an " agency record," on that basis alone.) Does it contain personal as well as official business information?
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Purpose-Was the document created solely for an indisidual employee'spersonalconvenience? Alternatively,towhatextentwas b
it created to facilitate agency business? -
Distribution - Was the document distributed to anyone else for any reason, such as for a business purpose?
How wide was the circulation?
Use - Did the document's author actually use it to conduct agency business (i.e., prepare an agency document)?
If yes, to what extent dici others use it?
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YES NO Maintenance - Was the document kept in the author's possession?
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Was it placed in an official agency file?
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. Disposition - Was the document's authorfree to dispose ofit at his personal discretion?
What was the actual disposal practice?_
l Control - Has the agency attempted to exercise " institutional i
control" over the document through applicable maintenance or disposition regulations?
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Did it do so by requiring the document to be created in the first
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i Segregation - Is there any practical way to segregate out any personal information in the document from official business information?
Revision - Was the document revised or updated after the fact for record-keeping purposes?
Author's Signature / Title / Office //Date 4
FOINPA Officer Signature /Date OGC Signature /Date Approve Approve Disapprove Disapprove
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(continued)
FOIA-APPENDIX PERSONAL RECORDS NO.
DATE DESCRIPTION /(PAGE COUhT) 1 l
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