ML20212M150
| ML20212M150 | |
| Person / Time | |
|---|---|
| Site: | Comanche Peak  |
| Issue date: | 08/13/1986 |
| From: | Chilk S NRC OFFICE OF THE SECRETARY (SECY) |
| To: | Garde B GOVERNMENT ACCOUNTABILITY PROJECT |
| References | |
| FOIA-86-181, FOIA-86-A-112 NUDOCS 8608250393 | |
| Download: ML20212M150 (2) | |
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[ducg'g' UNITED STATES
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NUCLEAR REGULATORY COMMISSION o
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August 13, 1986 CFFICE OF THE SECRETARY Ms. Billie P. Garde, Director Environmental Whistleblower Clinic Government Accountability Project 1555 Connecticut Avenue, N.W.
l Suite 202 IN RESPONSE REFER i
Washington, D.C.
20036 TO 86-A-ll2(86-181)
Dear Ms. Garde:
This letter responds to your July 9,1986 appeal of the denial of documents 2 and 10 in the f:uclear Regulatory Comission's June 10, 1986 response to F0IA 86-181 regarding Comanche Peak. The agency is addressing the remaining thirteen documents in a separate letter to be signed by the EDO.
In response to your appeal, the agency re-reviewed documents 2 and 10.
Based on that review, I affirm the agency's initial action with respect to these documents.
Documents 2 and 10, withheld pursuant to Exemption 5 of the Freedom of Information Act, constitute attorney work-products. There are no segregable factual portions because the factual material is inextricably intertwined with the exempt portions. See Mead Data Central, Inc. v.
Department of the Air Force, 566 F.2d 2T2 256 (D.C. Cir.1977);
Williams v. Department of Justice, 556 F. Supp. 63, 65 (D 0.C. 1982).
Disclosure of this material would reveal "the attornev's tactical and strategic thoughts." Mervin v. FTC, 591 F.2d 821, at 626 (D.C.- Cir.
1978).
Additionally, these documents are withholdable pursuanc to Exemption (5) under the work-product privilege because they were p"Nred in contem-plation of litigation.
In FTC v. Crolier, 462 U.S.15, at 26, the Court held that the " test under Exemption 5 is whether the documdn's would be
' routinely' or 'normally' disclosed upon a showing of relev. ace."
Also such material is discoverable "only upon a showing + hat the party seeking discovery has substantial need" of material 3 which cannot be obtained elsewhere without " undue hardship." Fed. R. Civ. f. 26(b)(3).
Since the rules of civil discovery require a showing of " substantial need" and " undue hardship" upon a request for factual work-product, such material would not be " routinely" or "normally" discoverable, but privileged.
8609250393 860313 PDR FOIA GARDE 86-A-112 PDR
2 This letter represents final' agency action on your July 9, 1986 F0IA Appeal. Judicial review of the denial of documents is available in Federel district Court in the district in which you reside or have your principal place of business, or in the District of Columbia.
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p WASHINGTON, D. C. 20555 JUN 10 1986 Ms. Billie Pirner Garde, Director Environmental Whistleblower Clinic Government Accountability Project IN RESPONSE REFER 1555 Connecticut Avenue, NW, Suite 202 TO F0IA 86-181 Washington, DC 20036
Dear Ms. Garde:
'This is in response to your letter dated March 6, 1986, in which you requested, pursuant to the Freedom of Information Act (F0IA), reconsideration of the Exemption (5) denials in our partial responses of October 25, November 1, and November 22, 1985, to F01A-84-779.
The documents listed on the enclosed appendix have been reviewed, and it has been determined that they will continue to be 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.
Documents 2 and 10 are attorney work-products the disclosure of which would reveal litigation strategy. The remaining documents are drafts.and other documents containing the preliminary advice, opinions, and recommendations of the staff in the deliberative process of determining proper enforcement actions.
regarding the Comanche Peak plant.. Release of this type of information would tend to inhibit the frank and candid exchange of information in future delibera-.
tions and thus would not be in the public interest. -There are no reasonably segregable factual portions because release of the facts would permit an indirect inquiry into the predecisional process of the agency.
Pursuant to -10 CFR 9.9 and 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 persons responsible for the denial of documents 4, 5, 8, 9, 12, 13, and 14 are the undersigned and Mr. James M. Taylor, Director, Office of Inspection and Enforcement. The persons responsible for the denial of documents-1, 3, 6, 7,11, and 15 are the undersigned and Mr. Robert Martin, Regional Administrator, Region IV. The person responsible for the denial of documents 2 and 10 is Mr. Guy H. Cunningham, III, Executive Legal Director.
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Ms. Garde s s The denials by Messrs. Martin, Taylor and myself-may be appealed to the Executive Director for Operations within 30 days from the receipt of this letter. Any such appeal must be in writing, andressed to the Executive Director for Operations, U.S. Nuclear Regulatory Connission, Washington, DC 20555, and should clearly state on the envelope and in the letter that it is an " Appeal from an Initial FOIA Decision." The denials by Mr. Cunningham may be appealed within 30 days to the Secretary of the Connission and should be addressed to the Secretary of the Commission.
Sincerely,
%l Yy Donnie H. Grimsley, Director Division of Rules and Records Office of Administration
Enclosure:
As stated s
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I F01A-86-181 Appendix 1.
Undated Ltr to Texas Utilities Generating Company, Mr. R. Gray from J. Collins, w/ enclosures: Notice of Violation and Proposed Imposition of Civil Penalty (4 pages) 2.
Undated Notice: Litigation Stragegy for Comanche Peak (3 pages) 3.
Undated Draft Ltr to R. Gary from R. DeYoung re: EA-83-132 (12 pages) 4.
Undated Draft Ltr to R. Gary from R. DeYoung re: EA-83-132 (15 pages) 5.
Undated Draft Ltr to R. Gary from R. DeYoung re: EA-83-132 (6 pages) 6.
11/21/83 Draft Ltr to R. Gary from J. Collins re: NOV (6 pages) 7.
03/06/84 Note to R. Rosano & T. Westerman from R. Hoefling re:
EA-83-132(2pages) 8.
05/14/84 Draft Ltr to R. Gary from R. DeYoung re: EA-83-132 (19 pages) 9.
06/07/84 Draft Ltr to R. Gary from R. DeYoung re: EA-83-132 (11 pages) 10.
08/20/84 Note to Ed Christenbury from Joe Scinto re: Intimidation Issues in the Comanche Peak Proceeding (7 pages) 11.
08/30/84 Memo for J. Axelrad from T. Westerman re: Letter and Order Imposing Civil Penalty (13 pages) 12.
08/31/84 Draft Ltr to R. Gary frcm R. DeYoung re: EA-83-132 (14 pages) 13.
08/31/84 Draft Ltr to R. Gary from R. DeYoung re: EA-83-132 with annotations (14 pages) 14.
08/31/84 Draft Ltr to R. Gary from R. DeYoung re: EA-83-132 with annotations (14 pages) 15.
09/04/84 Draft Ltr to R. Gary from J. Collins re: NOV (4 pages)
(202)2324550 ANMENT ACCOUNTABlUTY PROJECT 2
nnecticur Awnue, N.W., Suite 20 o
036
. gron, Dr. 20 1986 March 6, m
FREEDOM OF INFORMATION
/C', P'N' T ations lictor StelloEx:cutive Director for OperCommission FDrA -r4 ~/ t/
a U.S. Nuclear Regulatory 20555
'WOchington, D.C.
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APPEAL OF FOIA # 84-779 me subsection (a) (6) of the f the
Dear Mr. Stello:
appeal, pursuant toamended (5 U.S.C. 552), osted by the ial of access to records requethe Comanche This isof Information Act as an Project (GAP) regarding Commission's actual den Freedom Government Accountability relating to all Paak nuclear power plant.
d August 23, GAP requested recordstification 84-149, d On October 1, 1984, rsports listed in Board NoOffice of Investigations.
tor of 1984, J.M. Felton, Direcdvised of i
1984, published by the 30, By letter dated Novemberof Rules and Records, a d 8 documents to the p
our review.
i the Divisionavailable for 1985, Mr. Felton forwarde make a disclosure determ -
us.
made On October 15, sting them tosubsequently released to Department of Labor requenation, and those documen ter from Mr. Feltonwithholding of portions advised of the ts were I
of 25, 1985 let and portions 25, 1985 documents, as well as theto FOIA Exemption 7 (D),Th An October Exemption 6 release of 91 documents being withhelduse they containedrelea of 3 documents pursuant FOIA 20 documents pursuant toletter informed us of 12 d the to FOIA Exemption 5 becaand recommendations, anfran ions This informa-would tend to inhibit the entirety pursuantpreliminary advice, opin Robert in future deliberations.Mr. James Taylor, and of such information exchango of informationwas denied by Mr. Felton, tion Martin.
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. 1985, Mr. Felton informed us of iew and of one document, a
By letter dated November 1, i ions and recommenda-5 documents being released for our revdraft containing suant to FOIA Exemption 5hibit the fra tions, which was being withheld pur This informa-because its release would tend to incxchange of infor i
tions.
Mr. Martin.
tion was denied by Mr. Felton and h
1985, Donnie Grimsley, Dire'ctor of t eadvising of 2 d t to FOIA Exemption 5 On November 22, t
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Division of Rules and Records, wro e bming withheld in their entirety pursuant and their disclosurewas denied b b cause they were attorney-work producThe information would reveal litigation strategy.
Mr. Guy Cunningham.
of only those docu-cants withheld pursuant to FOIA ExemptionThis 1985.
We November 22, At a the denied documents.
1985; 5 on November 1, 1985; and 2 on regable portions of the balieve we are entitled to access to minimum there should be reasonably seg
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documents which are releasable.
of your receipt of We expect your response within 20 dayswhether to pursue this i
this appeal so that we can determ ne i
ppeal.
i-matter in court.
Thank you for your attention to th s a Sincerely,
\\W Billie Pirner Garde l
Director, Environmental Whistleblower Clinic l
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