ML20236X630
| ML20236X630 | |
| Person / Time | |
|---|---|
| Issue date: | 08/03/1998 |
| From: | Hoyle J NRC OFFICE OF THE SECRETARY (SECY) |
| To: | Del Core D AFFILIATION NOT ASSIGNED |
| Shared Package | |
| ML20236X632 | List: |
| References | |
| FOIA-COR98-12A, FOIA-COR98-186 NUDOCS 9808100152 | |
| Download: ML20236X630 (3) | |
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jf UNITED STATES y
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,. NUCLEAR REGULATORY COMMISSION l
WASHINGTON. D.C. 20555 @ 01 l
e August 3, 1998 CHAIRMAN Donald W. Del Core, Sr.
IN RESPONSE REFER Fl (98-186)
Dear Mr. Del Core:
This responds to your letter of July 6,1998, in which you appealed a June 13,1998 denial by Mr. Russell Powell of your request for a fee waivor for records requested in your Freedom of Information Act (FOIA) request dated April 30,1998.
This is to inform you that, pursuant to 10 C.F.R. S 9.29 (c)(2) (1998), I hereby sustain the decision to deny your fee waiver request. I have made this decision after careful review of the record. Your request does not meet the requirements of 10 C.F.R. S 9.41 (1998) regaraing requests for waiver or reduction of fees.
In the initial denial decision, your request for records pertaining to the Operational Safety Team inspection (OSTI) conducted between April 13,1998 and April 24,1998, at the Millstone Nuclear Power Station failed to describe the extent to which you will extract and analyze the substantive content of the records in order to effectively convey the information to the public. Moreover, it was unclear how the records you seek will enhance the public's understanding of the subject.
The initial denial decision advised that since some of the requested records are likely to contain l
material exempt from disclosure pursuant to FOIA Exemption 5 (5 U.S.C. 9 552 (b)(5);
j 10 C.F.R. S 9.17 (a)(5) (1998)) because they contain predecisional information, there is no expectation that the non-exempt information released would be significantly different from information already disclosed at the public meeting. Furthermore, the mere statement of your intent to provide the sought information to public access television or organizations does not demonstrate your ability to ensure broad dissemination to the public. Your request did not provide evidence that public access television stations or organizations are committed to either broadcasting or otherwise facilitating wide dissemination of the infomiation you seek.
Upon review of the reasons for the initial denial and of y. ~ reasons in support of fee waiver, against the entena set forth in 10 C.F.R. 9 9.41 (1998), I have concluded that your request for a waiver of fees was property denied. The reasons you have offered do not satisfy the requirements of the statutory fee waiver standard, specifically, whether release of the g
information "is in the public interest because it is likely to contribute significantly to public
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understanding of the operations or activities of the Govemment and not be primarily in the l
commercial interest of the requester." 10 C.F.R. S 9.41 (c) (1998).
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I considered six factors in my determination as to whether your request satisfies this statutory standard: (1) whether the subject of the requested records concems "the operations or activities of the govemment"; (2) whether the disclosure is "likely to contribute" to an understanding of gch
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2 government operations or activities; (3) whether disclosure of the requested information will contribute to the understanding of the general public; (4) whether the disclosure is likely to contribute "significantly" to public understanding of govemment operations or activities; (5) whether the requester has a commercial interest that would be furthered by the requested disclosure; and (6) whether any such commercial interest outweighs the public interest in disclosure. Sgg,10 C.F.R. 5 9.41 (d) (1998).
In reaching my conclusion on your appeal, I have analyzed the above six factors as they apply to the circumstances of your request. Although the information you have requested concerns the operations or activities of the government, and you do not appear to have an overriding commercial interest in the disclosure, you have not satisfied other relevant factors. To qualify for a fee waiver, you must make an adequate showing that release of the information to you is in the public interest and that you are able to disseminate the information to the public._Sg_e, Oalesby v. Department of the Army,920 F. 2d 57 (D.C. Cir.1990). The mere statement, as presented in your original request letter, that the information will be used to inform and educate' the public on restart issues, was not a sufficient basis on which the agency could grant you a fee waiver. Sag, Oolesby,920 F. 2d at 66, n.11. Moreover, you have made no attempt under factor (3) above to demonstrate that you have both the intent and ability to disseminate the information to the general public. Your statement in your appeal letter that you intend ".,. to discuss with public access channel broadcasting groups, or the groups to which (you) provide technical assistance", does not satisfy this factor. Your letter neither identifies the public access broadcasting groups or other groups to which you intend to release the requested information.
l nor your professional or personal contacts with these entities. The absence of this type of information demonstrates an inability to ensure dissemination to the public. This alone is a sufficient basis upon which to deny a fee waiver request. Larson v. CIA,843 F. 2d 1481,1483 (D.C. Cir.1988).
Your statement in your appeal letter that the records requested "will have significantly different information than the public report provided at the exit meeting, and the written report just recently issued" does not satisfy factors (2) and (4) above. Some of the records responsive to your request are likely to be partially or fully withheld from disclosure pursuant to FOlA Exemption 5 because they contain predecisional information such as drafts, opinions and recommendations. Accordingly, there is no expectation that non-exempt information released would contribute to the public's understanding of govemment operations or activities since the information released would not be significantly different from either the issued OSTI report which is now located ir the Public Document Room (PDR), or the OSTI findings presented at three public meetings by NRC staff, specifically, on May 5,1998 at the public exit meeting at the l
Millstone site, on June 2,1998 at an open Commission meeting, and on July 7,1998 at a public meeting held in Waterford, Connecticut.
Finally, as you may know, some of the records respcnsive to your request are already available in the Public Document Room, e.g., the OSTl report with its attachments, and a question and answer data base that was maintained by the licensee during the OSTI inspection. Any member of the public can view such records free of charge at the PDR and the LPDRs, or can review indexes to these records from remote locations by toll-free on-line access to the PDR or by way of the Intemet through Telnet. Persons without computer access may call the PDR staff on toll-free telephone lines to obtain information about the availabi!ity of NRC records and to order
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copies of records located there. The PDR has an onsite contractor who will copy records maintained at the PDR at nominal rates. The NRC will not waive fees for records that have l
already been made available to the public through its PDR and LPDR systems.
Based upon the above considerations, your appealis denied and the charge of 4 253.26 is reaffirmed. This decision is a final agency action pursuant to 10 C.F.R. S 9.29 (c)(3) (1998).
Judicial review of this decision is available in the United States District Court for the judicial district in which you reside or have your principal place of business or in the District of Columbia.
l Sincerely, John C. Hoyle Secretary of the Commission 1
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