ML20238D312

NRC Staff Response to Memorandum & Order Inquiring About Denial of Records Requested Per Foia.* QA Checkoff Lists Described in ES-107D & ES-108D Internal & Not Part of Exam Results Package Provided to Candidates.W/Certificate of Svc

ML20238D312
Person / Time
Site:	05560755
Issue date:	11/13/1987
From:	Woodhead C NRC OFFICE OF THE GENERAL COUNSEL (OGC)
To:	Atomic Safety and Licensing Board Panel
References
CON-#188-5195 SP, NUDOCS 8801040197
Download: ML20238D312 (6)

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November ]3, ]987 9

• DOCKETED USNRC UNITED STATES OF AMERICA -

NUCLEAR REGULATORY COMMISSION '87 NDY 17 P3 :34 BEFORE THE ADMINISTRATIVE JUDGE OFF!CE CF EEURM V 00CKEilN34 St wicf' BRANCH in the Matter of )

)

ALFRED J. MORABITO ) Docket No. 55-60755 l

)

(Senior Operator License for )

Beaver Valley Nuclear Power )

Station, Unit 1) )

NRC STAFF RESPOflSIE TO MEMORANDUM AND ORDER INQUIRING ABOUT DENIAL OF RECORDS REQUESTED PURSUANT TO THE FREEDOM OF INFORMATION ACT

l. INTRODUCTION By Memorandum and Order dated October 16,1987 (Order) the Ad-ministrative Judge directed the NRC staff (Staff) to respond to a question concerning two documents denied to Mr. Morabito by the NRC pursuant to exemptions 5 and 6 of the Freedom of Information Act. The Staff hereby files its response,

11. BACKGRUUND On September 14, 1987 Mr. Morabito filed a " Motion Requesting Judi-cial Review of Records" in which he asked the Administrative Judge to obtain and review certain agency records denied to Mr. Morabito pursuant to exemptions 5 and 6 of the Freedom of Information Act (F10A) and 10 C.F.R. 9.5(a)(5) and (6). The Administrative Judge in the October 16 Order ruled that he had no authority to grant Mr. Morabito's request or to review procedures of other NRC offices, but that in his interpreta-tion of the standards governing operator licensing examinations 8801040197 871113 SECY LIC55 0556 5 Y i

4 (NUREG-1021) It appeared that two documents (checkoff sheets) requested by Mr. Morabito should have been provided. Order at 5. The Order required the Staff to either provide the documents to Mr. Morabito or to file a brief in explanation of the denial of the records. Order at 6. The following discussion explains that the two documents in question are in-ternal agency recordc and are ' encompassed by exemption 5 of FOIA; 10 -C.F.R. 9.5(a), and 10 C.F.R. 6 2.790(a)(5), but that, as a matter of agency discretion, the documents will be released.

Ill. DISCUSSION The Order states that under standard ES-107D and ES-108D of l

NUREG-1021 -, the completed " Written License Examination Quality Assurance Checkoff Sheet" and " Examination Grading Quality Assurance Checkoff Sheet" for an examination must be " filed with the record copy of the examination". Order at 5. In addition, the Order noted that ES-104D requires a copy of the examination to be forwarded to the exami-nation candidate. M. Based on these three standards, the Administra-tive Judge concluded that "...the complete examination package includes the two checkoff sheets and that copies of the entire package must be furnished to the Applicant." id. This is not the case, as explained below.

The examiner standard, ES-104 is entitled " Procedures for Postexamination Activities". ES-104D is entitled " Notification of Results" and states as follows:

-1/. NUREG-1021 is entitled " Operator Licensing Examiner Standards".

The latest revision (Rev. 4) was published in May 1987.

s All notifications regarding final examination results shall be made only after review and approval by the regional admints-trator or his delegate. A copy of the written examination and each c'a ndidate's answer sheet shall be forwarded to the can-didate with either his license or a denial letter. An oral examination report (Form 157A, B, or C) shall be included with the denial letter if a candidate has failed the plant walk-through portion of the operating examination and a copy of the simulator scenario form and examination summary sheet, Attachments 5 and 11 to ES 302, shall be included if the can-didate has failed the simulator portion of the oporating exami-nation. ES-104D, NUREG-1021, Rev. 2, September 1, 1986.

As indicated above, this standard states the items to be provided to ex-amination candidates, i.e. , (1) a copy of the written examination, (2) the candidate's answer sheet and (for those who fall) copies of (3) the oral examination report, (4) the simulator examination summary sheets and (5) the simulator scenario form, but does not include Quality Assurance checkoff sheets. The operator licensing standards ES-107 (entitled

" Pre-Administration Quality Assurance Program for Review of Written Ex-aminations") and ES-108, (entitled " Post-Administration Quality Assurance Program for Review of Graded Examinations") pertain only to internal NRC QA review of the examinations developed by the Staff prior to their administration and internal QA review of the grading of all the written examinations. See: ES-107A and ES-108A.

ES-107 details the procedures for assuring that the examination de-veloped is clear, appilcable to the facility, points are weighted in accord with standards and correctly totaled, certain subjects are covered, the answer key is clear and concise, references are made to available training material, and other matters related to developing an examination which appropriately tests the knowledge of candidates in certain categories.

This standard provides for various levels of review of the examination by the Staff. ES-107D states that:

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s When the review is completed, the " Written License Examina-tion Quality Assurance Checkoff Sheet" (which lists the pro-cedures described above), should be approved by regional section chief, and filed with the record copy of the examin'ation.

The " record copy" of the examination is the " master copy" retained in agency files along with the QA checkoff sheet concerning the preparation of the examination, described previously. See: 10 C.F.R. 5 2.4(q).

Thus, the " record copy" of the examination is not the copy provided with the " examination results" to individual candidates, but, rather, the agen-cy's record copy.

ES-108 pertains to an internal NRC QA review of all the grades for all the candidates for a particular examination to check for errors in grading, comparison of responses and grades, indications of cheating or collusion, review of borderline cases, review of overall performance to I ascertain problems in the facility training program or wording of ques- j i

tions, or in other areas. This review is to be done by the Staff examin-er and a supervisor. ES-108D states that:

When the QA reviewer has completed his review, the "Exami-nation Grading Quality Assurance Checkoff Sheet," ES-108 Attachment 1, should be approved by the regional section chief and filed with the record copy of the examination.

Again, the " record copy" of the examination is the master copy of the examination in the agency files. The grading QA review encom, ses all the examination results, not just the answers of one candidate, and this review is filed with the record copy of the examination as part of the file for the examination itself, not as part of the file for an Individual candidate, in summary, the Commission's Administrator of Region I and the Di-rector of the Division of Rules and Records properly determined the QA

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g checkoff lists to be exempt from public disclosure under the Freedom of Information Act. Since these checkoff lists pertain to the Staff's QA pro-cedures for development of examinations and consistent, accurate grading they are not required to be provided to candidates pursuant to ES-104 as part of the package of examination results. Nevertheless, the agency has discretion to release documents which are exempt from disclosure. This discretion has been used in considering Mr. Morabito's appeal of the deni-al of records. The Staff has been informed that the Executive Director l-of Operations has recently decided, after considering Mr. Morabito's ap-l peal, to release all the documents requested including the checkoff sheets, as a matter of agencv discretion, except for some portions . con-cerning personnel matters protected by exemption 6 of the FOlA. Thus, it appears that Mr. Morabito's " Request for Judicial Review of Records" filed September 14, 1987, is now moot, and his FOIA request has been sub-L stantially granted.

in regard to the documents to be released, the Staff notes that, in its view, neither the checkoff sheets nor the other documents (concerning examiner certifications) are relevant to the issues of Mr. Morabito's exam-ination answers to be decided in this proceeding. These documents are related more to internal NRC operator licensing procedures which the Ad-ministrative Judge has ruled to be beyond the scope of his Jurisdiction.

Memorandum and Order, LB P-87-23, 26' NRC (August 25, 1987) slig. _

op. , p. 5; Order at 3, 6-7.

IV. CONCLUSION For the reasons explained above, the QA checkoff lists described in ES-107D and ES-108D are internal agency records, and are not part of b . _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _

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- the examination results package routinely provided to candidates as de-scribed in ElS-104.

Respect ful !y sutml t ted,'

/

Col 1een P. Woodhead Counsel for MC Staff -

Dated at Bethesda, Maryland i this 13th day of Novenber,1987 i l

I

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- A.____- --_i.______.__._____.m___m_.____. _.____-_.__ __ _______._.___ __ _. ____ __.- .. ..

c D0tKETED UAHC UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION 87 NOV 17 P3:34 BEFORE THE ADMINISTRATIVE JUDGE OFFICE Cf %iainey 00CKEllNG A ',[idylC['

BRANCH In the Matter of )

)

ALFRED J. MORABITO ) Docket No. 55-60755

)

(Senior Operator License for )

Beaver Valley Nuclear Power )

Station, Unit 1) )

i CERTIFICATE OF SERVICE l hereby certify that copies of "NRC STAFF RESPONSE TO MEMORANDUM AND ORDER INQUIRING ABOUT DENIAL OF RECORDS REQUESTED PURSU-ANT TO THE FREEDOM OF INFORMATION ACT" in the above proceeding.

have been served on the following by deposit in the United States mail, first class, or as indicated by an asterisk through deposit in the Nuclear Regulatory Comml;sion's internal mail system, this 13th day of November,1987:

Charles Dechhoefer, Esq. Alfred J. Morabito Administrative Judge 685 Tulip Drive Atomic Safety and Licensing Board New Brighton, PA 15066 U.S. Nuclear Regulatory Commission Y/ashington, D.C. 20555*

Atomic Safety and L? censing Board Jay Gutierrez U.S. Nuclear Regulatory Commission Regional Counsel Washington, D.C. 20555* USNRC, Region 1 631 Park Avenue Atomic Safety and Licensing Appeal King of Prussia, PA 19406*

Board Panel U.S. Nuclear Regulatory Commission Docketing and Service Section Washington, D.C. 20555* Office of the Secretary U.S. Nuclear Regulatory Commission Dr. David L. Hetrick, Professor Washington, D.C. 20555*

Department of Nuclear and '

Energy Engineering University of Arizona Tucson, Arizona 85721 N12+2 Colleen P. Woodhcad Counsel for NRC Staff l

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