ML20215L156

Appeals Denial of FOIA Request.Ref to EA-86-063 Incorrect Since No Investigation Rept Reflecting Findings Available. Explanation of Why FOIA Exemption 5 Pertains to Each Document Requested

ML20215L156
Person / Time
Site:	Comanche Peak
Issue date:	08/04/1986
From:	Heilman R, Weiss E UNION OF CONCERNED SCIENTISTS
To:	NRC OFFICE OF THE EXECUTIVE DIRECTOR FOR OPERATIONS (EDO)
References
FOIA-86-293, FOIA-86-A-138 EA-86-063, EA-86-63, NUDOCS 8610280503
Download: ML20215L156 (3)

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UNION OF CONCERNED SCIENTISTS ieie i.st,....t. - s. aio . ui,i.. ..... nc 2onso . <2o2, aa2.oeoo August 4, 1986 APPEAL OF INITIAL FOIA DECiSON Executive Director for Operations hbM ~M h E hhc83J I

U.S. Nuclear Regulatory Commission Washington, D.C. 20555 O g_f-d RE: Appeal from Initial FOIA Decision, FOIA 86-293

Dear Executive Director:

This is an appeal to a denial of records sought under the Freedom of Information Act (FOIA), 5 U.S.C. 552, in the above referenced matter. The letter denying the FOIA request, dated July 16, 1986, was signed by Donnie H. Grimsley, Director, Division of Rules and Records, Office of Administration.

(copy attached)

Your letter of July 16, 1986 states that the records sought are being withheld entirely pursuant to a B5 exemption claim.

Aside from the general assertion that the documents requested constitute predecisional information and an appendix identifying tne documents, you do not provide sufficient information to permit a meaningful administrative appeal of the denial determination. FOIA requesters are legally entitled to a

, description of each of the withheld documents and a statement of tne logical or factual basis upon which the denial of each document was denied. In the event that you again deny access to tne documents pursuant to this appeal, I would like, at a minimum, a description of each document--its subject matter, authors, factual conclusions--and explanations of why the B5 exemption applies to each document. This explanation has been ruled to be required by the Court of Appeals for the D.C.

Circuit. Mead Data Central Inc. Department of the Air Force, 556 -

F.2d 242, 251 (D.C. Cir. 19777-Your reponse stated that the factual information sought could be obtained from Document EA-86-63 in the NRC Public Document Room. My reading of EA-86-63 disclosed twenty-five pages of material regarding the Commanche Peak violations and civil penalties. Upon investigation with the NRC administrative office I discovered tnat tne reference to EA 86-63 was incorrect, that there is no investigation report reflecting the findings in tne requested documents and that NRC asserts now no factual 8610280503 860004 PDR FOIA WEISS 86-Camlr p A- t ;7bge bbice: 2t, t.imrrli Street. Camlerialgc. Sinamarlmsetts o2238 . (617) 517 5552

L information can be released upon the basis of a determination tnat no reasonably segregable factual material exists. You informed me that the incorrect reference to anotner inspection report resulted from your having copied another FOIA response and neglected to omit that section.

I find this assertion incredible and without merit. In 23 documents concerning draft inspection notes and inspection reports, some segregable portions of factual information must exist. Presumably ~ inspection notes must contain purely factual information for example, descriptions of damage and equipment.

Segregable portions of factual material must be released under FOIA.

Tne purpose of exemption 5 is to allow frank and candid discussion during inter- and intra-agency decision-making.

Exemption 5 is the FOIA adjunct to Rule 26 (b)(3), Federal Rules of Civil Procedure, whien governs access to information during discovery. The Supreme Court ruled, however, that unlike the rule in discovery, an FOIA requester need not make a showing of substantial need to obtain access to information. EPA v. Mink, 410 U.S. 73 (1973). Ratner, because FOIA presumes public access to documents except in narrowly interpreted exempted categories, agencies do not have all the privileges which accrue to a party under Rule 26 (b)(4) of the Federal Rules of Civil Procedure.

Tne determination of whether a document may be exempted under B5 does not turn upon whether it is "predecisional" in nature. The Supreme Court distinguished between deliberative materials and factual or investigative matters. EPA v. Mink, 410 U.S. at 89. Deliberative materials are exempt from public disclosure under exemption 5 to protect candid and frank inter-and intra-agency decision-making but factual and investigative matters must be segregated and disclosed. So, even where a document is' pre-decisional, "the privilege applies only to the

' opinion' or ' recommendatory' portion of (a document], not to -

factual information whien is contained in the document." Coastal States Gas Corp. v. Department of Energy, 617 F.2d at 867.

Tne titles of the undisclosed documents given in Appendix D of your reply, strongly suggest that these documents contain largely factual and investigative materials whien should be di.) closed to a FOIA requester. Inspection notes and drafts presumably report factual information culled during inspections.

For example, documentation on equipment specifications would be factual and disclosable. Surely draft inspection notes and findings contain at least segregable portions of factual material disclosable under FOIA.

I also dispute your assertion that input " drafts" and input reports (items 17-22 of Appendix D) submitted by consultants to your agency are predecisional materials. These reports constitute contractors' final presentations and as such snould be released. They are not intra- or inter-agency documents.

l Tnerefore the B5 exemption protecting candid and frank discussion in intra- and inter-agency documents fails to apply. The i

existence of " professional opinion as to a past event" does not release you from your statutory duty to disclose segregable factual and investigative portions of the requested documents.

Guckian v. General Services _ Administration, No. 75-2156, slip op.

, (D.C. Cir. April 20, 1976).

It is apparent that this FOIA request received a boilerplate denial without a minimally serious effort to comply with the provisions.of the Act. 1 expect a response to this appeal within the allotted twenty (20) days, i

Sincerely, .

L/

Elly . Weiss, General Counsel a

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i Rene E. Heilman

! Union of Concerned j Scientists i

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i1;yn R. Weiss, Esquire M 10 harmon and Weiss 2031 S Street, NW, Suite 430 IN RESPONSE REFER Eashington, DC 20009-1125 TO F0lA-86-293

Dear Ms. Weiss:

This is in f urther response to your letter dated April 21, 1986, in which you recuested, pursuant to the Freedom of Information Act (FOIA),. three categories of records related to equipment qualification at Three Mile Island (TMI-1) and

the subjects discussed at a meeting held April 18, 1986 at the TMI site. ~

l The records identified on enclosed Appendix 0 are responsive to your request.

These records are being withheld in their entirety i of the F01A (5 U.S.C. 552(b)(S)) and 10 CFR 9.5(a)(pursuant to Exemption (5)

5) of the Commission's 4

regulations. These records are either drafts, comments on drafts, input to 1

draf ts, or other notes which reflect the decisional process. They consist of predecisional information compiled by the staff of the Nuclear Regulatory i Commission (NRC) as part of the ongoing review process of an inspection.

Releasing this information would tend to inhibit the frank and candid exchange pf information in future deliberations and would not be in the public interest.  ;

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The factual matter in the records is available in the NRC's Public Document Room as EA-86-63 which was issued,on May 2, 1986.,

Pursuant to 10 CFR 9.9 of the Commission's regulations, it has 'been determined that the information withheld is e'xempt from production or disclosure, and that its production or disclosure is contrary to the public interest. The persons responsible for this denial are the unders'igned and Mr. James M. Taylor, j Director, Office-of Inspection and Enforcement.

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This denial may be appealed to the NRC's Executive Director for Operations i

within 30 days from the receipt of this letter. As provided in 10 CFR 9.11, i

any such appeal must be in writing, addressed to the Executive Director for Operations, 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."

i The staff is continuing to review additional records subject to your request.

We will notify you when this review is completed.

! Sincerely, s'

. s P- // 7 i ..

' Donnie H. Grimsley, Director Division of Rules and Records

{l Of fice of Administration i Enc l'osure : As stated .

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