ML20217H095
| ML20217H095 | |
| Person / Time | |
|---|---|
| Issue date: | 05/16/1997 |
| From: | Olmstead W NRC OFFICE OF THE GENERAL COUNSEL (OGC) |
| To: | Galante A NRC |
| Shared Package | |
| ML20217H029 | List: |
| References | |
| FRN-62FR46922, RULE-PR-9 AF78-1-003, NUDOCS 9910220051 | |
| Download: ML20217H095 (5) | |
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oFF CE o HE GENERAL counsel MEMORANDUM TO: Anthony J. Galante Chief information Officer FROM: i "f a mstead Associate General Counsel
SUBJECT:
ELECTRONIC FOIA AMENDMENTS OF 1996 This responds to the NRC staff request for an interpretation of which classes of NRC documents are required to be placed online electronically for public access pursuant to newly enacted provisions of the Freedom of Information Act.
In 1996, Congr;~,ss enacted new amendments to the Freedom of Information Act, 5 U.S.C. !i 552, designed to bring Federal policy on openness into step with contemporary technology by requiring agencies to post certain types of records on line electronically.
These Electronic Freedom of Information Act Amendments of 1996 (" Electronic FOIA") seek to make the burden of FOIA lighter both for requesters and agencies, by requiring that the types of records most likely to be in demand' will be available online electronically as a i matter of routine, thereby making it unnecessary to file and process individual FOIA requests. This memorandum addresses what types of documents fall within the scope of the new amendments. Under the Act, those documents generated after November 1,1996, that are subject to the online requirement are to be placed online by October 31,1997 if the agency has the established computer telecommunications means to do so. Otherwise, these documents must be made available by other electronic means.2 The first point to be emphasized is an exception to the law: If the materials are promptly published and copies are offered for sale, there is no requirement of electronic posting.
CONTACT: Peter Crane, OGC Pamela A. UrLan, OGC (301) 415-1634
'Nothing in the new Act, however, requires the NRC to make public documents which I would not normally be disclosed if requested under the FOIA. I 2The legislation does not address the issue of how long the documents must remain j
pdine. In its Winter 1997 FOIA Update, the Deoartment of Justice suggested that an l
agency should continue to maintain the record online for as long as it remains current.
l It specifically asserted that policy statements and administrative staff manuals should remain available until they are replaced by superseding documents or otherwise are no longer in effect.
i 9910220051 991020 I . 1
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, 9 62FR46922 PDR F
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A. Galante 2 Thus the NRC need not (unless it wishes to) post its final adjudicatory decisions (Category A below), since final decisions are promptly published and sold in the yellow "NRC lssuances". Decisions are usually published in the NRC issuances within 45-90 days after issuance, which satisfies the "piompt" publication requirement.:
Unless the exception applies, the law requires online electronic publication of five categories of documents. The categories are:
(A) final opinions, including concurring and dissenting opinions, as well as orders, made in the adjudication of cases:
(B) those statements of policy and interpretations which have been adopted by the agency and are not published in the Federal Register; (C) administrative staff manuals and instructions to mff that affect a member of the public; (D) copies of all records, regardless of form and format, which have been released to any person under paragraph (3) [e, under a FOIA request] and which, because of the nature of their subject matter, the agency determines have become or are likely to become the subject of subsequent requests for substantially the same records; and (E) a general index of the records referred to under subparagraph (D). (This index is not required to be online until December 31,1999.)
Of these five categories, paragraphs (A), (D), and (E) need no explication here." The difficulty is in defining " interpretations" and " adopted by the agency," in paragraph (B), and
" instructions to staff" and " affect a member of the public"in paragraph (C). However, because these terms were part of the Act long before the recent amendments, there is preexisting guidance from the Attorney General on their meaning.
In a February 1975 memorandum on amendments to FOIA enacted in 1974, the Attorney General explained that " interpretations" are " explanations or clarifying applications of laws, regulations, or statements of policy." Only " statements and expressions issued by the head of the agency, or by a responsible official empowered by the agency to make authoritative 8The Atomic Safety and Licensing Board Panel alseady posts its decisions on the World Wide Web. j
'We would note that with the category pertaining to documents frequently sought under the FOIA, the Department of Justice in its Winter 1997 FOIA Update has advised agencies that this encompasses only documents that were generated by the agency.
f Therefore, the NRC is not required to place online those documents possessed by the NRC l
that are subject to frequent FOIA requests but which were generated by licensees or members of the public, i
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p A. Galante 3, 1 L ~ issuance," are considered to be " adopted by the agency."
i-l: The memorandum ~also explained that the adjective." administrative" in paragraph (C)
( modifies both " manuals" and " instructions." The word ." administrative" was added in 1966 L + amendments to the FOlA, as the relevant Senate report explained, to ensure that the public l- : has access only to those manuals and instructions that pertain to administrative matters and
, 'not to those that would hinder law enforcement efforts. Congress did not want agencies to be forced to reveal manuals, instructions, or investigative techniques which could be helpful to wrongdoers.' This provision has been interpreted by the courts to require disclosure of those portions of invetigatory manuals that contain information on investigatory practices L that. is routinely available to the public. Information that if. known to the public would !
. sig'n ificantly impede the enforcement process can be ' withheld. - See, for example, Hawkes v.
I 1RS,467 F.2d 787 (6th Cir.1972), aff'd on other grounds,507 F.2d 481 (6th Cir-.1974).
.The question then becomes one of determining which types of NRC documents fit within these various categories, bearing in mind that current NRC practice has long been to release a large volume of information.' To date, the C*partment of Justice has yet to issue specific guidance to the agencies in implementing these provisions in the context of the new Act.
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- ' 'S. Rep. No.'813, 89th Cong,1st Sess.2 (1965).
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'The following types of documents that are not published in the FederalRegister are
' already routinely released to the public in one or another form (including publication for sale):
- a. Documents originated by SECY -
-- staff requirements memoranda (SRM's) issued as the result of open Commission meetings;
-- orders, opinions, and decisions of the Commission and the Boards relating to adjudicatory matters;
-- all SECY papers, other than those withheld on specified grc unds (adjudicatory, enforcement, investigatory, classified, proprietary, personal privacy, especially sensitive), as well as SRM's and the Commission Voting Record on those papers;
- b. Documents originated by the Office of Enforcement
- List of Civil Penalties
- c. Documents originated by NRR and/or NMSS:
- Inspection Manual
- Bulletins, generic letters -
- d. ' Other Documents
- Branch technical positions
-- Regulatory and Technical Reports
-- NRC issuances
- NRC Regulatory Guides (issued jointly with RES)
-- NUREGS (including draft and final reports and public comments)
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A. Galante 4 We believe that the simplest and most efficient means of implementing the new amendments is to look to the recently enacted Small Business Regulatory Enforcement Fairness Act of 1996 (SBREFA). It requires Federal agencies to provide Congress with an opportunity to review all agency " rules", with " rule" defined so broadly as to incorporate all final agency statements of general applicability (except for "any rule of agency organization, procedure, or practice that does not substantially affect the rights or obligations of non- I agency parties," 5 U.S.C. 9 804 (3)(C)), and all policy statements, as well as agency documents interpreting agency requirements.
In our view, there is no legally significant distinction between the standards of the two statutes: that is, between " affect a member of the public" in the Electronic FOIA amendments, and "substantially affect the rights or obligations of non-agency parties," in the SBREFA. Presumably, the Electronic FOIA amendments are not intended to require posting of documents which have only an insubstantial effect on members of the public.
That being so, application of the Electronic FOIA can piggyback on the SBREFA, with electronic posting of all " rules" sent to the Congress, except for those that are published in the Federal Register.7 This should make it unnecessary to decide on a case-by-case basis whether particular documents fall within the scope of the Electronic FOIA amendments.
The NRC already has in place mechanisms for determining which agency documents are
" rules" for purposes of SBREFA." Each office has a SBREFA coordinator and the online publication requirement could be effectively implemented by directing that for each " rule" that is to be submitted to the Congress, but that will not be published in the Federal Register, the originating office it, to provide a diskette with a electronic version of the document to a specified individual in the NRC. For planning purposes, during the first year SBREFA was in effect (March 29,1996-March 28,1997), the NRC issued 110 " rules" that were not published in the FederalRegister and that would qualify for online publication.
However, only those rules issued after November 1,1996 need to be placed online.
An additional class of documents, not constituting " rules" under SBREFA, must also be placed online under the Electronic FOIA, because they fall within either category (B) or (C).
These are staff requirements memoranda issued by the Secretary of the Commission which provide guidance to the staff. Only those memoranda which are made publicly available and provide policy or legal guidance to the staff need be placed online. We do not read the new law as narrowing in any way agencies' authority to withhold documents under FOIA.
Rather, the law deals with the manner in which documents are made available.
7 The Electronic FOIA Act does not require the agency to place on line final rules and j policy statements that are published in the Federal Register as these are already available on J line through other means.
'A list of which classes of agency documents are rules for purposes of SBREFA is set forth in Attachment 1 to the June 25,1996, memorandum from James M. Taylor, Executive Director for Operations, to Office Directors entitled, "Small Business Regulatory Enforcement Fairness Act".
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A. Galante 5 CONCLUSIONS
- 1. Because the NRC's adjudicatory orders are promptly published and offered for sale, the NRC is not legally required to place these documents online, but may wish to do so as a matter of policy.
- 2. The agency is required to place online those " rules" that are not published in the Federal Register but must nonetheless be transmitted to the Congress pursuant to the provisions of the Small Business Regulatory Enforcement Fairness Act. The NRC is also required to place online those publicly available staff requirements memoranda that establish agency policy or provide policy or legal guidance to the NRC staff.
- 3. The NRC is required to place online documents generated by the NRC which have been or are expected to be, requested frequently pursuant to the Freedom of Information Act.
The NRC is also required to place online an index of these frequently requested documents.
cc: EDO CFO ADM SECY ASLBP OPA IG
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