ML20211P279
| ML20211P279 | |
| Person / Time | |
|---|---|
| Site: | Catawba  |
| Issue date: | 04/25/1986 |
| From: | Carr A DUKE POWER CO. |
| To: | Chilk S, Stello V NRC OFFICE OF THE EXECUTIVE DIRECTOR FOR OPERATIONS (EDO), NRC OFFICE OF THE SECRETARY (SECY) |
| References | |
| FOIA-85-584, FOIA-86-A-67 EA-84-093, EA-84-93, NUDOCS 8607230071 | |
| Download: ML20211P279 (6) | |
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Apri1 25, 1986 Mr. Samuel J. Chilk APPK OF MitTWu. FOlA DECISK)N Secretary of the Commission 26 A b1 c t E(gS.NY
-Mr. Victor Stello, Jr.
Executive Director for Operations
. g 9. p U.S. Nuclear Regulatory Commission Washington, D.C.
20555 Re:
FOIA-85-584 Appeal From an Initial FOIA Decision Regarding Enforcement Action EA 84-93
Dear Messrs. Chilk and Stello:
5 Pursuant to the Freedom of Information Act ("FOII."),
U.S.C. S 552(a)(6) and the NRC's regulations, 10 C.F.R.
" Duke") hereby appeals from the S 9.11, Duke Power Company (dated March 26, 1986, which denied
" seventh partial response,"
in part Duke's August 19, 1985 FOIA request for copies of all docyments related to and underlying enforcement Action EA 93 This request has also been the subject of correspondence 1/
with Mr. Dircks, dated October 25, 1985 and December 9, as well as eight partial responses, dated November
- 1985, 4, 1985, December 10, 1985, December 26, 1985, January 7, 1986, January 8, 1986, January 24, 1986, March 26, 1986, and April 1, 1986.
On January 9, 1986, January February.6, 1986, February 7, 1986, and 27, 1986, February 28, 1986, Duke filed respective appeals from the December 10, 1985, "second partial. response," the 26, 1985 " third partial response, the January December 1986 1986 " fourth partial response," the January 8, 7,
1986 "fifth partial response," and the January 24,
" sixth partial response."
On April 9, 1986 the Executive Director for Operations responded to Duke's January 27, 1986 appeal of the " third partial response."
8607230071 860425 PDR FOIA CARRB6-A-67 pop
1
' Masers..Chilk and Stello i.
. April 25, 1986 Pag'e 2 By letter.of March 26, 1986, Mr. Donnie H.- Grimsley e Director, Division of -Rules and Records, Office of Adminis-tration, informed Duke of the NRC's refusal to release irertain "predecisional information" which constitutes " advice, 0 pin-ions and recommendations of the staf f,"
and "the identit ies of confidential sources."
As identified in Mr. Grimsley's' letter, the persons responsible for this denial are Mr. Grimsley, Dr. J. Nelson Grace, Regional Administrator, Region II, Mr. Guy H.
Cunning-ham, Executive Legal Director, and Mr. Gary J.
Edles, Acting Director, Office of Inspector and Auditor.
They based this denial on exemptions 5 and 7(D) of FOIA, 5 U.S.C. SS 552(b)(5) and (b)(7)(D), and the corresponding provisions in the Commis-sion's regulations, 10 C.F.R. SS 9.5(a)(5) and (a)(7)(iv).
Duke objects to the NRC withholding these records on the grounds that neither of the cited exemptions justifies with-holding this relevant information.
Duke's ability to object effectively to the NRC's withholding these documents is, of course, hampered by the fact that Duke is not aware of the exact nature and content of each document withheld.
In most instances the description of the documents withheld is so perfungtory as to prevent' Duke from making a substantive response.
Simply to identify a document as an " Undated Draft," letter, memo, or decision, and to indicate the planned sender and recipient, with not even a hint concerning the subject matter, is a legally inadequate response.
- See, e.g., Mead Data Central v. Department of the Air Force, 666 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 usable description of each document to aid it in determining whether that document is relevant to Duke's bases for challenging the Staff's enforcement action.
Id.
Accordingly, if the NRC continues to withhold any of these documents after this appeal, ~the agency must 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.
-2/
For example, th'is seventh Partial Response includes four draft letters from O'Reilly to Tucker regarding the
" Notice of Violation," two memoranda from Puckett to Axelrad regarding " Severity Level III Violation -- Duke Power Company," and the " Enforcement Panel Meeting Minutes."
No further detail is provided.
~
Massrs. Chilk and stello P
April 25, 1986 Page 3 It is fundamental FOIA law that the " basic policy" of FOIA' "is in favor of disclosure"; thus " Congress carefully struc-tured nine exemptions'from the otherwise mandatory disc 3osure requirements."
NLRB v. Robbins Tire & Rubber Co., 437 U.S.
l 214, 220-(1978).
Furthermore, it is clear that a court will j
carefully consider the nature of each individual document that is withheld, rather than treating documents or files of docu-ments as a whole.
Id. at 229-30.
Accordingly, in responding to this appeal, the 6ffice of the secretary and the Office of the Executive Director for Operations need 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 appropriate in this case 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-I 93, against Duke.
As Duke has explained, the requested docu-ments significantly affect 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 enforce-ment action make it imperative that Duke be able to assess the I
basis for the NRC's actions.
Exemption 5 Exemption 5 permits an agency to withhold " inter-agency or intra-agency memorandums or letters which would not be avail '
able by law to a party other than an agency in litigation withS 9.$(a)(5).3 the agency'."
5 U.S.C.
S 552(b)(5); cf. 10 C.F.R.
Mr. Grimsley's March 26th letter witEEolds sixteen separate documents pursuant to exemption 5, as identified in Appendices BB and CC to that letter.
One judicially recognized AA, limitation on the scope of exemption 5 requires that any of these withheld documents which contain the NRC's " working law,"
i.e., interpretations or guidelines with precedential To the extent the NRC's regulations attempt to exclude
-3/
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 I
agency.
See 10 C.F.R. S 9.5(a)(5)(i).
Notwithstanding this regulation, a document must be disclosed if it meets the legal standards in the statute hs interpreted by the courts and discussed herein.
'~-
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- s Massrs. Chilk:and Stello April 25, 1986 Page 4 weight that the agency follows, must be released.
E.g.,
NLRB
- v. Sears, Roebuck & Co.,
421 U.S.
132, 152-53 (1975); Schlefer
- 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. 197,8), aff'd, 663 F.2d 120 (D.C. Cir. 1980).
Given the minimal descriptions that the NRC has provided of these withheld documents, Duke is unable to determine which, if any, of them fall under this exception to exemption 5 of FOIA.
We ask that the Commision Staff review Appendices BB and CC and release any documents that set forth the AA, agency's view on whistleblower protection in general or as applied to the Director's Decision in the matter of Duke Power Such documents would be viewed as setting forth the Company.
standard that was followed by the agency and therefore should be disclosed.
Additionally, all sixteen of the documents in Appendices BB and CC that are being withheld pursuant to exemption 5 AA, thould at the very least be made public in redacted form, with all factual information contained therein revealed.-
E.g.,
ITT World Communications v. FCC, 699 F.2d 1219, 1236 (D.C. Cir.
1983), gev'd on other grounds, U.S.
, 104 S. Ct.- 1936 (1984);' 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).
The conclusory assertion in the ' March 26th letter that "there are no reasonably segregable factual judicial scrutiny.giciently precise and detailed to withstand -
portions" is insuf Mead Data Central v.
See, le..,
566 F.2d at 260-62; Vaughn v.
Department of the Air Force, Rosen, 484 F.2d 820, 825-28 (D.C, Cir. 1973), cert. denied,
-4/
In ITT World Communications, the Court of Appeals had decided consolidated appeals concerning, inter 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.
5/
For example, item 6 in Appendix AA, a " Summary of comments and actions taken on Enforcement Draft Letter,"
and item 14 in Appendix AA, consisting of a draft letter from O'Reilly to Tucker attaching a draft Notice of Violation, would appear to consist primarily of factual information that must be disclosed.
The same would apply to item 2 in Appendix BB, a memo from Van Doorn to Jones on " Description of Actions Taken Relative to Atomic Safety and Licensing Board Partial Initial Decision Requirements for Catawba Nuclear Station."
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' Massrs. Chilk and Stello
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April 925, 1986 Page 5 977 (1974).
Accordingly, on this' administrative 415'U.S. the Office of the Secretary and the Office of'the
- appeal, Executive Director for Operations should correct this All segregable factual deficiency in the FOIA response.
material contained in the sixteen documents withheld pursuant to exemption 5 must be released.
Exemption 7(D)
Clause (D) of exemption 7 of FOIA protects.
the identity of a confidential source and, in the case of a record compiled by a criminal law enforcement authority in the course of a criminal investigatior.,
or by an agency conducting a lawful national security intelligence investigation, confidential information furnished only by the confidential source.
5 U.S.C. 5552(b)(7)(D); cf. 10 C.F.R. 59.5(a)(7)(iv).
Two documents in the NRC's Seventh Partial Response were withheld under the authority of section 7(D).
The first, item 1 in
" Handwritten Memo from Alleger to l
Appendix AA, is a two-page Duke requests that those portions of Resident Inspector."
this memorandum other than the alleger's name and other j
details which might reasonably lead to the disclosure of his identity be released.
This memorandum was not part of a record compiled "by a criminal law enforcement authority in the course of a criminal investigation," or by an agency conducting a " lawful national security intelligence invest-igation."
Accordingly, the factual information furnished in this memorandum is not protected.
l same rationale applies to item 1 in Appendix BB, a
The memo from VanDoorn to Todd on 29, 1983 portion of September"Information Relative to QC Welding Inspector Concerns (Case No. 26022)."
Here again, all factual information in this document other than the identity of the source (assuming that the source was promised confidentiality) and other identifying details should be released.
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- s Massrs. Chilk and Stello April 25, 1986 Page 6 conclusion As demonstrated above, none of the documents withheld by Mr. Grimsley's March 26 response fall under either of the claimed exemptions from disclosure.
Duke therefore submits that production of this information is compelled by the Freedom of Information Act.
Sincerely, hl
)
~
Albert V.
Carr, Jr.
Assistant General Counsel cc: Chairman Nunzio J.
Palladino Commissioner Thomas M.
Roberts Commissioner James K. Asselstine Commissioner Frederick M. Bernthal Commissioner Lando W. Zech, Jr.
e Mr. James M.
Taylor Ms. Jane A. Axelrad Mr. Donnie H. Grimsley 3
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