ML20214X321
| ML20214X321 | |
| Person / Time | |
|---|---|
| Site: | Crane  |
| Issue date: | 11/05/1986 |
| From: | Voigt H LEBOEUF, LAMB, LEIBY & MACRAE |
| To: | Chilk S NRC OFFICE OF THE SECRETARY (SECY) |
| References | |
| FOIA-86-682, FOIA-86-A-220 NUDOCS 8612110064 | |
| Download: ML20214X321 (2) | |
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. t"iQ r tir. L A** @. L C19 ' 4 M * * A L f u'll cDfSO*4 NJ LON DON. ENGL A N D November 5, 1986 APPEAL OF INillAL. fula uc.Q6sN Samuel J. Chilk, Esq.
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Secretary e
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U.S.
Nuclear Regulatory Commission
(/J.C.!d // g Q 1717 H Street, N.W.
Room ll35A Washington, D.C.
20555 Re:
Appeal From an Initial FOIA Decision:
roIA-86-682
Dear Mr. Chilk:
This is an appeal f rom an initial decision by the Office of Administration on a Freedom of Information Act
("FOIA") request I submitted on September 12, 1986.
- The, document that has been denied is a memorandum to the Director, Office of Investigations, from James A. Fitzgerald, Office of the General Counsel, dated March 26, 1986, subject:
" Consultation on Referral to the Department of Justice (Case No. 1-84-022): Three Mile Island-2:
Investigation of Individual l
Actions Concerning the Falsification of Leak Rate Data."
l Pursuant i to 5 U.S.C. 5 552.(1982) and 10 C.F.R. 5 9.11 (1986), I hereby appeal the denial of my request.
According to the letter ruling :I received, this memorandum is alleged to be exempt from disclosure because its disclosure purportedly.
"would violate attorney-client privilege and would tend to inhibit the open and frank exchange of ideas essential to the' l
deliberative process."
The. letter ruling cites to 5 U.S.C.
S 552(b) (5) and 10 C.F.R.
S 9. 5 (a) (5), known as Exemption 5.
8612110064 861105 PDR FOIA VOICT86-A-220 PDR f
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, Samuel J. Chilk, Esq.
November 5, 1986 Page 2 The attorney-client privilege embodied within Exemption 5 does not allow the withholding of documents merely because they are the product of an attorney-client relationship.
Attorney-client privilege only extends to confidential information.
If the information has been or is later shared with third parties, the privilege does not apply.
Mead Data Central, Inc.
v.
U.S.
Department of the Air Force, 366 F.2d 242, 253-54 (D.C. Cir. 1977).
Here it is clear that the referral to the Justice Department that is the subject of this memorandum was a disclosure to a third party that constitutes waiver of the privilege.
i In addition, this memorandum is subject to disclosure as a final diaposition of an agency.
See 5 U.S.C.
SS 551(6),
The U.S. Supreme court has expressly ruled that the 552 (a) (2).
final dispositions of matters can never be within the scope of Exemption 5.
See NLRB v. Sears, Roebuck Co., 421 U.S.
132 (1975).
The decision to refer the matter to the Justice Department and the referral itself were such final dispositions that are subject to disclosure.
In light.of these circumstances, I respectfully the document reguest that the initial decision be reversed and made available to me.
Very truly yours, 4
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