ML20245L244
| ML20245L244 | |
| Person / Time | |
|---|---|
| Issue date: | 01/09/1989 |
| From: | Davis A NRC OFFICE OF INSPECTION & ENFORCEMENT (IE REGION III) |
| To: | Black D ROBINS, KAPLAN, MILLER & CIRESI |
| Shared Package | |
| ML19316F536 | List: |
| References | |
| NUDOCS 8905050343 | |
| Download: ML20245L244 (3) | |
Text
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January 9. 1989 Mr. David L. Black Robins, Kaplan, Miller,
'a Cirest
.1800 International Center 900 Second Avenue South Minneapolis, MN.55402-3394
.SU8 JECT: 3M REQUEST TO KITHH0LD FE8RUARY 25, 1988, SATTELLE REPORT FROM PUBLIC 015CL0$LRE
Dear Mr.. Black:
9 This is in response to your letter dated October 12, 1988_ requesting reconsideration'of my prier opinion. that no adequate basis to withhold the.
- above-captioned document from public disclosure was provided.
Your letter provided a considerably scre detailed elucidation of 3M's views on this matter then the previous correspondence to us on this subject, and we have conducted a careful legal and technical review of the Battelle Report (Report) and your October 12 L988 letter.,
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For the reasons set forth below, we have concluded that the Report may.not be. entirely withheld from public disclosure. However, some of the infomation in the Report if, interpreted conservatively, could be viewed as expressing evaluations and recomunendations, in contrast to factual descriptions and
. statements, and will be withheld on that basis.
These are noted.in.-thu marked-up Battelle Report.-: The -views-expressed in this letter F-have been.phoroughly reviewed and represents the final agency action on your request.
DISCUSSION:
The NRC is.sware of the past history and continuing legal development of the Self-critical Analysis Privilege as it relates to cases involving the Freedom of Information Act (F0!A). As such, we ' agree with your basic arguments and history of the privilene on pages four and five of your October 12th letter.
Our problem, however, "s with the applicatica of that privilege to the subject Report.
Based upon the affidavit in the March 4,1988, withholding request, we understand that 3M soeght Batte11e's assistance in response to Section III.E.
of the January 25, 1988 erder that the NRC issued to 3M. Thus, the study was not "self-initiated," but we do not believe that NRC's decision should be made solely on this basis.
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Mr. David L. Black January 9 1989 Setting aside "the question of whether the study was self-initiated, we believe that the February 25, 1988 Report is not, in and of itself, a critical analysis of 3M's manufacture and distribution of Po-210 static ella;nators.
Rather, it is primarily a factual presentation describing what devices were examined, and the results cf those examinations.
If 3M is conducting a ~self-critical analysis l
of its manufacture and distribution of Po-210 static eliminators, the Report I
could be a part of the fact-finding aspects of such a study.
3M also argues, in part, that the Report should be withheld because 3N's contract w' th Battelle " prohibits use or presentation of such infomation in disputes. litigation or other legal action." We believe that this is a matter between Battelle and 3M and should not be a factor in deciding whether NRC must release or withhold the Report. Although NRC did not object to the selection of Battelle to conduct independent studies for 3M, NRC did not require 3M to select Battelle.
Accordingly, while we are not inclined to say that 3M has established its l
burden of proving that the Report is part of a Self-Critical Analysis, we agree that 3M sight be engaged in such an analysis.
Therefore, we will assume that the privilege exists.
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The next quest 1on goes to the scope of the privilege. The several courts that
' have dealt with this privilege have stated that even when it is applicable, it f
is limited and it could not possibly encompass the report in its entirety.
The privilege applies, if at all, only to evaluations and recommendations; it does not apply to factual descriptions and statemer.ts. See, e.g., Granger v.,
National RR Passenger Corp., ~116 F.R.D. at 509 (privilege applied to portions of rerort entitled " Accident Analysis" and "Cosmittee Reconnendations." but not j
those entitled "Cause" and ' Contributing Factors"); Gillmand v. United States.
53 F.R.D. 316, 319 (S.D.E.Y.1971) (government ordered to produce portions of statements from hospital personnel that discuss. incident itself); Penky v.
Oregon State Boa'rd of Higher Education, 99 F.R.D. at 507 (statistical and descriptive portions or report ordered released). At a minimum, then, the FOIA requester in the case at hand is entitled to those portions of the subject Report that contain factual descriptions of what the laboratory did and observed.
This requirement to release segregable portions of the subject Report stems, of course, not only from recognized limitations of the self-critical analysis privilege, but also from F0IA itself, see 5 U.S.C.
SectionSS2(b).
j Accordingly, with these above f' actors in mind, the NRC technical staff has reviewed the subject Report and marked and identified those portions that we believe might represent protectable opinions and conclusions of Battelle.
These portions we are willing to withhold from public disclosure as privileged.
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Mr. David L. Black January 9,1989 We are'pfanning to release the remaining portions of the Report to the FOIA requester os January 25, 1989. As requested. we will also withhold thosa portions of your October 12, 1988 withholding of the report. to the extent they relate to information in i
Report considered withholdable.
Stacerely.
Ortainel eigmod hp b
.i. Bert Drvss A. Bert Davis Regional Administrator
Enclosures:
s stated cc w/ enclosures:
D. Lewis, Shaw, Pittman, Potts,
& Trowbridge
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