ML20214X345
| ML20214X345 | |
| Person / Time | |
|---|---|
| Site: | Crane  |
| Issue date: | 12/04/1986 |
| From: | Chilk S NRC OFFICE OF THE SECRETARY (SECY) |
| To: | Voigt H LEBOEUF, LAMB, LEIBY & MACRAE |
| References | |
| FOIA-86-682, FOIA-86-A-220 NUDOCS 8612110073 | |
| Download: ML20214X345 (2) | |
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UNITED STATES y'
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Harry H. Voigt, Esq.
LeBoeuf, Lamb, Leiby & MacRae 1333 New Hampshire Avenue, N.W.
Washington, D.C. 20036 i
Re: F0IA Appeal 86-A-220C, Appeal of Denial of 86-682
Dear Mr. Voigt:
This letter responds to your appeal, dated November 5,1986, of the agency's October 15, 1986 denial of your request pursuant to the Freedom of Information
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Act (FOIA) for a single document. The document at 5, sue is the March 26, 1986 Memorandum from James A. Fitzgerald, Assistant Genen.1 Counsel, for Ben B.
Hayes, Director, 01 which stated as its subject: Consultation on Referral to the Department of Justice (Case No. 1-84-022) (Three Mile Island-2:
Investigation of Individual Operator Actions Concerning the Falsification of Leak Rate Data). The agency received your appeal on November 6,198C, and logged it as F0IA Appeal 86-A-220C.
In response to your appeal, the agency re-reviewed the document.
Based on that review, I affirm the agency's decision not to release the document for the reasons stated in the initial decision, that release of this predecisional record would tend to inhibit the open and frank exchange of ideas essential to the deliberative process and would violate the attorney-client privilege. The agency also withholds the document as attorney's work product. These reasons are all embodied in Exemption 5 of the FOIA. See 5 U.S.C. 552 (b)(5).
Moreover, the agency affirms the decision that the withheld record does not containanyryasonablysegregablefactualportionsandisbeingwithheldin its entirety Your appeal letter appears to rest in large measure on a fundamental misapprehension of the nature of the denied document. The c'ocument is not as you maintain a final disposition of an agency. While arguably the decision to refer the matter to the Justice Department and the referral itself may be detennined to be such final dispositions, such a determination would not govern the characterization of the denied document. The legal advice of the IFactual portions are withholdable pursuant to an exemption for attorney-client privilege, and the decision of non-segregability is relevant only to any withholding that would not be based on that privilege.
8612110073 861204 PDR FOIA VOIOT86-A-220 PDR
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agency's lawyers on the subject of whether to refer and what selection of
.infonnation from the report supports the referral, as well on other referral-related matters, to the deciding official in advence of the decision is clearly a predecisional document, the disclosure of which would be likely to " stifle honest and frank comunication within the agency." Ccastal States Gas Corp. v. Department of Energy, 617 F.2d 854, 866 (D.C. Cir.1980).
With respect to the attorney-client privilege embodied within Exemption 5, you assert that the referral to the Justice Department, that is the subject of the withheld memorandum, was a disclosure to a third party. You therefore conclude that the agency has not treated the matter as confidential and thus has waived the exemption. But " disclosure" to the Department of Justice is no more than an extension of the attorney-client relationship. While the agency's lawyers consult with agency officials in the first instance on criminal matters, any criminal proceeding must be brought by the Department of Justice. Accordingly. the confidential facts may be made known to atterneys of that governmental department withcut breaching the confidentiality of those facts. The privilege is not lost because other attorneys are informed of the same facts in the course of the legal work. Mead Data Central, Inc. v.
Department of the Air Force, 566 F.2d 242, 253, n. 24 (D.C. Cir.1977).
Finally, on review we have determined that the document is exempt from release as attorney work product. Attorne y work product is exempt from mandatory disclosure without regard to the status of the litigation for which it was prepared. FTC v. Grolier, 462 U.S.19 (1983). The work product privilege applies to documents prepared in anticipation of litigation and does not turn on whether litication actually ensued. Kent Corp. v. NLRB, 530 F.2d 612, 623 (5th Cir.1976), cert. denied 429 U.S. 920 (1976). See aTso 462 U.S. at 31 (Brennan & Blackmun, J.2. concurring) (" Worse yet, [tFe requester] could gain t
insight into the agency's when suits are brought...) general strategic and tactical approach to deciding At least with respect to governmental agencies, it is clear that the attorney work product exemption survives the extinction of any litigation for which it was prepared. 462 U.S. at 27-28.
This letter represents final agency action on your F0IA Appeal 86-A-?"
Judicial review of the denial of the subject document is available in i n
.i district court in the district in which you reside or have your principal place of business or in the District of Columbia, Sincerely,
' Sa el J. Ch11k Secretary of the Comission
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LE8OEUF, LAMB, LElBY & MAcRAE a saavutasm, mcwomo enorcssioniL coneonar.ows 1333 Ncw HAMPSHIRE AVENUE, N.W WAsHtNGTON, D C 20036 (202) 457 7500 TELEX 440274 FAC S I M I L E: 202 457-75ta Ngwv0mm.NY BOSTON.MA S A LT L A
- C CITY. U T SOUTM PORT. CT R A L C t G =, % C A L B A N Y, N Y S AN F na %CISCO. OA N E WAR M. NJ L esog.r.. Au s. L Ele Y & MACRACfUM)
E DiSON, N J LON DC%. C N G LA N D September 12, 1986 Director, Office of Administration SEEDOM OF INFORMATION U.S.
Nuclear Regulatory Commission eCI REQUEST FOIA-ab-t,Jz Washington, D.C.
20555 Freedom of Information Act RequestM & 9-/S-26 Re:
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Dear Sir:
Attached hereto is a memorandum to the Commissioners from Ben B.
Hayes, Director, Office of Investigations, dated April 11, 1986.
This document states that a copy of the Report of Investigation of Individual Operator Actions Concerning the Falsification of Leak Rate Test Data (1-84-022) was forwarded to the Department of Justice for possible action regarding certain operators who were the subject of that report.
Pursuant to the Freedom of Information Act, 5 U.S.C.
S 552 (1982) and 10 C.F.R.
S 9.8 (1986), I hereby request copies of:
1) correspondence, memoranda, or other documents to or from the Department of Justice and the Nuclear Regulatory Commission relating to this referral to the Department of Justice; and 2) all telephone logs, memoranda, notes or other documents reflecting conversations between the Department of Justice and the Nuclear Regulatory Commission regarding the Same.
I agree to pay up to $50 for copies of these materials.
If the charges exceed that amount, please contact Marlene Stein at 457-7500 to receive authorization for additional amounts.
Very truly yours, QA44-
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l OCT 15 26 harry H. Voigt, Esquire LeBoeuf, Lamb, Leiby & MacRae 1333 New Hampshire Avenue, NW IN RESPONSE REFER Washington, DC 20036 TO F0!A-86-682
Dear Mr. Voigt:
This is in partial response to your letter dated September 12, 1986, in which you requested, pursuant to the Freedom of Information Act (F0IA), two categories of records relating to a memorandum to the Comissioners from Mr. Ben B. Hayes dated April 11, 1986, regarding the Report of Investigation of Individual Operator Actions Concerning the Falsification of Leak Rate Test Data at the Three Mile Island plant.
The record identified on enclosed Appendix A is being withheld pursuant to Exemption (5) of the F0IA (5 U.S.C. 552(b)(5)) and 10 CFR 9.5(a)(5) of the Comission's regulations. This record is a two-page memorandum to the Director, Office of Investigations, from James A. Fitzgerald, Office of the General Counsel.
Release of this predecisional record would violate the attorney-client privilege and would tend to inhibit the open and frank exchange of ideas essential to the deliberative process.
The withheld record does not contain any reasonably segregable factual portions and is being withheld in its entirety.
Pursuant to 10 CFR 9.15 of the Comission'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 person responsible for this denial is Mr. James A. Fitzgerald, Assistant General Counsel for Adjudications and Opinions.
This denial may be appealed to the Secretary of the Comission within 30 days from the receipt of this letter. Any such appeal must be in writing, addressed to the Secretary of the Comission, U. S. Nuclear Regulatory Commission, Washington, DC 20555, and should clearly state on the envelope and in the letter that it is an " Appeal from an Initial F0IA Decision."
The review of additional records subject to your request is continuing. As soon as our review is completed, we will notify you.
Sincerely, Q$
Donnie H. Grimsley, Director Division of Rules and Records Office of Administration
Enclosure:
As stated A
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Re:
F01A-86-682 APPENDIX A 3/26/86 Memorandum for Ben B. Hayes from James A. Fitzgerald, subject:
Consultation on Referral to the Department of Justice (Case No.
1-84-022) Three Mile Island-2:
Investigation of Individual Operator Actions Concerning the Falsification of Leak Rate Data.
(2pages)
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April 11,1986 MEMORANDUM FOR:
Chaiman Palladino Comissioner Roberts Comissioner Asselstine Comissioner Bernthal Comissioner u FROM:
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Office of Investigations
SUBJECT:
THREE MILE ISLAND NUCLEAR GENERATING STATION, UNIT 2:
INVESTIGATION OF INDIVIDUAL OPERATOR ACTIONS CONCERNING THE FALSIFICATION OF LEAK RATE TEST DATA (1-84-022)
Enclosed is a Report of Investigation concerning the captioned subject. At the Comission's direction, the staff reviewed all available material and infomation concerning the falsification of Reactor Coolant System (RCS) leak rate test data ' it TMI-2. Based on that review, OI was requested to conduct an investigation of ten individuals-who hold or held NRC Reactor Operator or Senior Reactor Operator licenses at NRC licensed facilities to aid in deter-mining whether licensing action should be taken regarding these individuals.
In keeping with the Comission's directive, this investigation did not delve into issues of corporate and management responsibility, in that those issues I
were adjudicated and considered resolved as a result of the action taken by the Department of Justice. As such, this investigation was structured to address the narrow issue concerning the involvement of individually licensed operators in the manipulation of the RCS leak rate tests. To properly under-stand the background and history of this subject, it is recomended that this-Report be reviewed in conjunction with OI Case No. 1-83-010, which was issued on August 15, 1984.
The investigating agent has concluded that Booher, Cooper, Congdon, and Olson were involved in the intentional manipulation of test results. This headquar-ters is in complete agreement with the agent's conclusions regarding these individuals. With respect to Miller, however, the investigating agent felt that there was insufficient direct evidence to prove that Miller was aware of or involved in the manipulation of leak rate tests. The agent's conclusion notwithstanding, a review of the testimony and documentary evidence by head -
quarters indicates a compelling weight of evidence to support a conclusion i
that Miller was at least aware of the manipulation of test results taking
- place on his shift, if not actually involved in.them in a supervispry capacity.
' While there is some evidence indicating that Illjes, Faust Frederick, McGovern, and Guthrie were involved in test irregularities or took actions which 4
i I
The Commission 2
April 11, 1986 invalidated test results, there is insufficient evidence for the case agent or this headquarters to reach a conclusion as to their involvement in the intentional manipulation of tests.
In addition to the issue of actual manipulation of leak rate tests, there were reasonable grounds to believe that Booher, Cooper, Olson, Miller, and Illjes made willful material false statements during the NRC investigation.
It is, therefore, our intention to provide a copy of this Report to the Department of Justice for pro 3ecutive consideration relative to Title 18 USC 1001 and Section 223(a) of the Atomic Energy Act.
In conjunction with this investigation, the staff prepared detailed evaluation reports and recommendations for these individuals based on the investigative r
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findings. The staff's conclusions are consistent with those of 01.
Neither this memorandum nor Report may be released outside the NRC without the permission of the Director. 01.
Enclosure:
As stated cc w/ encl:
L f. Stello, Jr. E00 (3)
C. White, 01:RI T. Murley, RI 9-W
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