ML20247Q644

Appeals Denial of FOIA Request for Records.Documents Invalidly Withheld as Predecisional.Ack & Fee Info Encl

ML20247Q644
Person / Time
Site:	Pilgrim
Issue date:	03/08/1989
From:	Carreybeaver MASSACHUSETTS, COMMONWEALTH OF
To:	NRC OFFICE OF THE EXECUTIVE DIRECTOR FOR OPERATIONS (EDO)
References
FOIA-88-284, FOIA-88-285, FOIA-88-286, FOIA-88-287, FOIA-88-519, FOIA-89-A-10, FOIA-89-A-11, FOIA-89-A-12, FOIA-89-A-13, FOIA-89-A-9 NUDOCS 8906070003
Download: ML20247Q644 (17)

Text

- - - ---

3- \

=

. pc" y

. THE COMMONWEALTH OF MASSACHUSETTS DEPARTMENT OF THE ATTORNEY GENERAL .

j'

' i f)

, ' M' JOHN W McCoRMACK STATE OFFICE BUILDING oNE A$H9yATON PL ACE BOSTON C21081698

":2!:,%~lT 1 F2:J. OF i:im::. r;;:. cn :c:t )

[9-A-96(/N!f)

/9-A -/d6(//-MS)

March 8, 1989 19- A -MS (f/-Jf(,)

Executive Director of Operations M- H k4 Ur-4 7 U.S. Nuclear Regulatory Commission

• iashington, D.C. 20555

[f-M Nb ((f

.$U h

• fD ~f y RE: APPEAL FROM AN INITIAL FOIA DECISION, FOIA 88-284,88-285, 88-286,88-287, 88-519 ear Executive Director:

This is an appeal pursuant to subsection

'reedom of Information Act, as amended, (a)(6) of the 2.F.R. s 9.29. (5 U.S.C. 552) and 10 On February from the 27, 1989, the Attorney General received NRC's Director a letter of the Division of Freedom of Information and publications

7. Russell, Regional Administrator Services, informing us that William of Region I, withheld from our review 284,88-285, a number of documents responsive to FOIA requests 88-88-286, and 88-287 (please note that the NRC has aggregated A to this appeal, these FOIA requests with FOIA 88-290.) As Attachment 38-286, and 88-287 we've As appended FOIA requests88-284, 88-285, appended the NRC's recent Attachment B to this appeal, we've as well as the NRC's letter responding to these requests, description of records totally withheld under these requests. partially and On February 3, 1989, the Attorney from NRC's Donnie H. Grimsley in which twoGeneral received a letter documents responsive to FOIA request Attachment C to this88-519 were partially and totally withheld. As stated. As appeal, we've appended FOIA 88-519 as Attachment D to this appeal, we've appended the NRC's letter responding to this request, as well description request. of records partially and totally withheldasunder the NRC's this You will note that your agency withheld each has partially or totally of the documents listed on Attachments B and D l

8906070003 090300 l RE A-9 PDR 1

l L_ __ ___

~

i under' the. Exemption 5 claim of deliberative process. This.  !

- appeal is directed to the denial of these documents. In marking l t the applicable exemption, Mr. Russell, the denying official, apparently contends' that the facts in. these documents are inextricably intertwined with predecisional information and that there are no reasonably segregable factual portions because 3 release of- these portions would permit an indirect. inquiry into  !

the NRC's predecisional process. See Attachment B & D at 2.

The Attorney General- believes that, while facts may theoretically be intertwined with predecisional information, Mr.

1

-Russell's apparent contention that factual portions cannot be released without compromising the NRC's predecisional process requires.further review-in light of legal standards as well as the documents for which Exemption 5 is claimed here. Even if a document is pre-decisional, "the privilege applies only to the

' opinion' or ' recommendatory' portion of [a document}, not to factual information which is _ contained in the- document.

[ emphasis supplied] Coastal States Gas Corp. v. Dept. of Energy, 617 F.2d 854,-867.(D.C. Cir. 1980). Claims of non-segrability must be. made with the same degree of detail as required for claims of exemption by Vaughn v. Rosen, 484 F.2d 820 (D.C. Cir.

1973). In addition to the Vaughn descriptions, the NRC, through Mr. Russell, should also have described, at a minimum, what proportion of the information in each withheld document is non-exempt and how that material is dispersed through the document.

See Mead Data Central v. Dept. of the Air Force, 566 F.2d 242, 260 (D.C. Cir. 1977). Thus, for instance, the wholesale exemption of hearing notes broadly withheld under FOIA 88-285 is improper because of a lack of required specificity, as is the denial of the so-called " Talking Papers' which were withheld in their entirety under FOIA 88-287 Similarly, in the memo from R. Blough to S. Collins, Attachment E was withheld ander FOIA 88-286 without the degree of detail required by Vaughn.

We also believe it possible that the Commission may have adopted or incorporated by reference discussion or reasoning in these Talking Papers. If so, this would be an additional reason for release in their entirety of the Talking Papers. Additionally, the memo from R. Blough to S. Collins entitled " Enforcement Discretion for Pilgrim Fire Barrier Deficiencies", partially withheld under FOIA 88-284, may have been improperly withheld, given that Exemption 5 does not protect interpretations of l agency regulations (see Coastal States Gas Corp. v. Dept. of Energy, 617 F.2d at 867-68.)

All but one of the FOIA requests referenced above were originally made back in the spring and summer of 1988 --- well before hearings in the current state proceeding involving Pilgrim in which the Attorney General is a party. The NRC's failure to move expeditiously on the Attorney General's FOIA requests, as well as the agency's apparent failure to follow l some of its own regulations (See Attachment E), has seriously

compromised the Attorney General's preparation of the above-referenced state proceeding.

his caso in

' Now, the NRC's last-I minute denial of relevant documents subject not only to long-standing Fo!A requests but also to a valid subpoena duces tecum issued by the Massachusetts Department of public Utilities (see.

Attachment F) again seriously prejudices the Department's investigation into the Pilgrim outge.

As you certainly are aware, the Freedom of Information Act places the burden of justifying nondisclosure on the agency seeking to withhold information. As noted above, the NRC's response to the above-referenced FOIA requests provided information insufficient to make a determination as to whether denial of these documents is proper. Based on the NRC's inadequate response, we simply cannot judge whether the withheld documents require production. We do believe, however, that the agency has not carried its burden, that upon examination of this appeal, you will conclude that the records we have requested have been improperly withheld, and that you will overrule the decision to withhold the documents from the Attorney General's review. If you deny this appeal and fail to adequately demonstrate why this' material is properly exempt, the Attorney General intends to initiate a lawsuit in the appropriate court to compel their disclosure.

As provided in the Freedom of Information Act, I expect to receive a reply to this administrative appeal letter within twenty (20) working days.

Sincerely, p q > % -$%

Douglas G. Carrey-Seaver Assistant Attorney General Utilities Division, 19th Floor public Advocacy Bureau (617) 727-2200 enc 1.

9

% 4 ATTACHMENT A l-

fi.s esg,% -

' UNITED STATES

, f -

NUCLE AR REGULATORY COMMISSION g a tk.  !

WASHINGTON. D C. 20555 May 26,1988 s' ....*

e ACKNOWLEDGMENT l This (FOIA) acknowledges request. receipt of your recent Freedom of Information Act The FOIA number which it has been assigned and the date

.copy it wasof received by this office are noted on the face of your request, a which is enclosed.

)

3 1

We have also enclosed a notice about fees that shows NRC's evaluation of ye, request with regard to assessment of fees. The notice pertains to the present FOIA fee structure (5 U.S.C. 552(a)(4)) and NRC's regulations at 10 CFR Part 9 (52 Fed. Reg. 49350).

If a notice about fees requires no action by you, the NRC will respond to your request as soon as possible. However, because of the existing backlog of cases and the time needed to search for' records subject to your request, there may be some delay in our response.

If you have any questions about the status of your request, you may telephone the staff member whose name and telephone number are identified-below.

F0!A-88-284 Nina Tons (301) 492-8993 Sincerely,

'- No Li . L.. Robin n,, CMab Freedom of Information and Privacy Acts Branch

' Division of Rules and Records Office of Administration and Resources Management

Enclosures:

As stated

e est No.

~

\

i

/ ,,* n ,,* \ , FOl A'/W .) J V i

!' ,

• UNITEo STATES 00$' ' -

' ' 1 NUCLE AR REGULATORY COMMISSION M M/ ,n

..... FEES FOR FREEDOM OF INFORMTION ACT (F0!A)

Requester 9 ko Va r-

~

Pursuant tcuthe TOTT, 5 U.5 bt.ca Jn

'. your FOIA request has been e(f. 557(a)T4), and the NFs regulations,10 CFR below.

If the NRC estimates fees will exceed $25.00, the estimated fees in the Coments section of this form or by a separate notice sent as Mptoas you as soon as possible, unless your F0!A request states your w estimated.-

review, and duplication of records which are respons lCrequest for records for a nonco_mercial use by a representative of an t

educational or noncorcercial scientific institution, or an individual who ,

r Privacy Act and the FOIA records on the individu exceed 100 pajes.

,s

[' records A request for records for a noncomercraTuse, which requires the pa for records responsive which exceed to your request that exceeds two hours and for 100 pages, fased on information in your request. the NRC categorized the request  !

disagree with the noted categorization, please tele letter to notify the NRC of your disagreement with the categorization. Please provide a written explanation of your intended use of the etcords within 20 days from th (notice.

If you do not telephone tN NRC employee within five days the NRC will presu e you agree with the noted categorization and will process your reque,st in acco categorization.

If you disagree but do not provide a written explanation within 20 and will close the file on the the date of this notice, yourNRC FOIAwill presune that you have no further interest in th request.

explanation in the future. You may submit a new request with the ne:i sufficient explanation of your intended use of thePlease requested provide a r

written explanation of your intended use of the records within 20 days from the d notice.

If the NRC does not receive a written explanation within that time, the NR

~ presume request. that you have no further interest in the records and will close the file on C0tHENTS You may submit a new FO!A request with the necessary explanation in the

'5ignature Chief F eedom of Information and Privacy Acts Branch ~

~

, ,h . -

g-u, '

F......Io j

,  ; UNITED STATES t4 , 7, NUCLE AR REGULATORY COMMISSION

{. t W ASHINGTON. O C. 20555 3 4

/

May 26, 1988 ACKNOWLEDGMENT I

-This acknowledges receipt of your recent Freedom of Information Act (FOIA) request. The FOIA number which it has been assigned and the date it was received by this office are noted on the face of your. request, a copy.of which is enclosed.

t We request havewith alsoregardenclosed to assessment a notice about fees that of fees.- The shows NRC's evaluation notice pertains to the- of y present FOIA fee structure-(5 U.S.C. 552(a)(4)) and NRC's regulations at 10 CFR Part 9 (52 Fed. Reg.' 49350).

If a notice about fees requires no action by you, the NRC will respond to your request as-soon as possible. However, because of the existing backlog of cases and the time needed to search for records subject to your request, there may be some delay in our response.

1 If you have any questions about the status of your request, you may telephone the staff member whose name and telephone number are identified below.

F0!A-88-285 Nina Toms (301) 492-8993 Sincerely,

~i. &

Li L Roh! r. CMaf. ...

Freedom of Information and Privacy Acts Branch

' Division of Rules and Records Office of Administration and ,

Resources Management

Enclosures:

As stated {

l

d Reden %.

FO! A- d'/' d b"

[ . g*h' i l' .<

UNITE O STATES Date NUCt E AR REGUL ATORY COMMISSION dY s., ...*.vf/ , FEES FOR FREEDOM OF INFORMATION ACT (FO!A) REQ Requester 9 L04) v W' ~t ' 7 Pursuant toghe FOIA, 5 U.S.C.62(a)(4), and the NRC's regulations,10, CFR 52 FR 45 9 33 your below.FOIA request has been evaluated for proper categorization for payment of

, as not estimated fees in the Coments section of this form or b i sent as hietoasyou as soon as possible, unless your FO!A request states your willin estieted.

A request for records for a comercial use, which requires the paynent of costs f review, and duplication of records which are responsive to your request.

A request for records for a noncommercial use by a representative of the new educational or noncommercial scientific institution, or an individual who requests Privacy Act and the F0!A records on the individual in a Privacy Act system of re requires 100the payment of costs for the duplication of records responsive to you exceed pages.

[ A for request for records for a noncommercial use, which requires the papnent of co records responsive to your request that exceeds two hours and for duplica records which exceed 100 pages.

Based on inferration in your request, the NRC categorized the request as noted ab '

disagree with the noted categorization, please telephone within five days from the letter to notify the NRC of your disagreement withPlease the provide catego a written notice. explanation of your intended use of the records within 20 days from the date o If you do not telephone the NRC etnployee within five days the NRC will presur.e you agree with the noted categorization and will process your reque,st in accordance with categori:ation.

If you disagree but do not provide a written explanation within 20 days the date of this notice, the NRC will presume that you have no further interest in the e and will close the file on your FO!A request. You r.ay submit a new request with the nec explanation in the future.

'Your F01A request cannot be categorized for payment of fees because you have not sufficient explanation of your intended use of the requested records. Please provide a written explanation of your intended use of the records within 20 days from the date of notice.

If the NRC does not receive a written explanation within that time, the NRC wil

. presume that you have no further interest in the records and will close the file on your request.

You may submit a new FOIA request with the necessary explanation in the future CO*ENTS Signature Chief Freedom of Information and Privacy Acts Branch YY =M

_ _ _ _ _ _ _ _ _ _ _ - - - - - - - ~ ~ ~ _

1. %^ UNITED sT ATEs j ,: .

[ . 'f . .- q NUCLE AR REGULATORY COMMISSION

- 3 j vvA5HINGTON, O C 205$5 May 26, 1938 ACKNOWLEDGMENT This acknowledges receipt of your recent Freedom of Information Act (FOIA) request. The FOIA number which it has been assigned and the date it was receivstd by this office are noted on the face of your request, a copy of which is enclosed.

We have also enclosed a notice about fees that shows NRC's evaluation of you request with regard to assessment of fees. The notice pertains to the present F0IA fee structure (5 U.S.C. 552(a)(4)) and NRC's regulations at 10 CFR Part 9 (52 Fed. Reg. 49350).

If a notice about fees- requires no action by you, the NRC will respond to your request as soon as possible. However, because of the existing backlog of cases and the time needed to search for records subject to your request, there may be some delay in our response.

If you have any questions about the status of your request, you may telephone the staff member whose name and telephone number are identified be low.

F01A-88-236 Nina Toms (301)492-8993 Sincerely,

'- En

'in

. L.. ReMas , Chie b Freedom of Information and Privacy Acts Branch

' Division of Rules and Records Office of Administration and Resources Management

Enclosures:

As stated

q k

[ . ...yI*, FOIA.//

0$'

> fe

[ l' UNITED STATES A' Df #

. 2 } NUCLE AR REGULATORY COMMISSION.

FEES FOR FREEDOM OF INFORMATION ACT (FOIA) REQU Requester w ~'

b%

Pursuant tb the FOIA, 5 U.55. 552(4)(4), and the NRC's regulations.10 CFR .

9 33

, 52 FR 40 your below.FOIA request has been evaluated for proper categorization for payment of estimated fees in the Comments section of this form or b sent as hrigh to as you as soon as possible, unless your F0!A request states your willingness.

estirrstet.

A request for records for a commercial use, which requires the payment of costs for s review, and duplication of records which are responsive to your request.

A request for records for a noncommercial use by a representative of the news m Privacy Act and the FOIA records on the individual in requires exceed 100the payment pages. of costs for the dupitcation of records responsive to 'your i YA for request for records for a noncocinercial use, which requires the payment of costs records

/' records which responsive to your request that exceeds two hours and for duplicatio exceed 100 pages.

Based on infor1 nation in your request, the NRC categorized the request as noted abo I' disagree with the noted categorization, please telephone within five days from the da this notice.the NRC employee whose name and telephone number appear on th letter to notify the NRC of your disagreement with the categorization. . Please provide a written notice. explanation of your intended use of the records within 20 days from the date o If you do not telephone the NRC employee within.five days the htC will presu 4 you agree with the categorization. noted categorization and will process your reque,st in accordance with If you disagree but do not provide a written explanation within 20 days the date of this notice, the NRC will presume that you have no further interest in the re and will close the file on your FO!A request. You may submit a new request with the nece explanation in the future.

Your F0IA request cannot be categorized for payment of fees because you have not pro sufficient explanation of your intended use of the requested records. Please provide a written explanation of your intended use of the records within 20 days from the date of t notice.

If the NRC does not receive a written explanation within that time, the NRC will presume request. that you have no further interest in the records and will close the file on your You may submit a new FOIA request with the necessary explanation in the future.

C0PO4ENTS

Signature Chief. Freedom of Information and Privacy Acts Branch WbM

k 9

. 3 ** *' 5 ,,h

.[ UNITED $TATEs

! ,,, i NUCLEAR REGULATORY COMMISSION l

l

, .{ f *4samcrow. o e mss 1, v / May 26,1988 ACKNOWLEDGMENT.

This acknowledges receipt of your recent Freedom of Information Act (FOIA) request. The FOIA number which it has been assigned and the date it was received by this office are noted on the face of your request, a copy of which.--is enclosed.

We have'also enclosed a notice about fees that shows NRC's evaluation of yet request with regard.to assessment of fees. The notice pertains to the present FOIA fee structure (5 U.S.C. 552(a)(4)) and NRC's regulations at 10 CFR Part 9 (52 Fed. Reg. 49350).

If a notice about fees requires no action by you, the NRC will respond to your request as soon as possible. However, because of the existing backlog of cases and the time needed to search for records subject to your request, there may be some delay in our response.

If you have any questions about the status of your request, you may telephone the staff member whose name and telephone number are identified '

below.

FOIA-88-287 Nina Toms (301) 492-8993 Sincerely, '

~

h Lin L. Robins n Chief Freedom of Information and Privacy Acts Branch Division of Rules and Records Office of Administration and Resources Management

Enclosures:

As stated

I*

i

=cwes t. %.

F01A- @ ) P 7

((,, <,,,%,

UNITEo sTATss Date , j i

i. NUCLE AR REGULATORY COMMISSION l ....*

/ FEES FOR FREEDOM 0F INFORMATION ACT (F01A)

Requester W ,f ~

Pursuant to the FOIA, 5 U.S.C. 552(a)(4), and the NRC's regulations,10 CFR 9.3 your below.FOIA request has been evaluated for proper categorization for parent of fees, a estimated fees in the Coments section of this form or by

~

sent as Mgh to as you as soon as possible, unless your FOIA request states your willingness t estimated.

A request for records for a cocinercial use, wttich requires the payment of costs for se review, and duplication of records which are responsive to your request.

A request for records for a noncommercial use by a representative of the news me educational or noncommercial scientific institution, or an individual who requests unde requires the payment of costs for the duplication of re exceed 100 pages. __

A request for records for a nonconrnercial use, which requires the papent of costs for for records records whichresponsive to your request that exceeds two hours and for duplication o exceed 100 pages.

Based on information in your request, the NRC categorized the request as noted above  ;

disagree with the noted categorization, please telephone within five days from the date letter to notify the NRC of your disagreement with the categoriz

~

Please provide a written notice. explanation of your intended use of the records within 20 days from the date of If you do not telephone the NRC employee within five days the NRC will presume you agree nith the noted categorization and will process your reque,st in accordance with categorization.

If you disagree but do not provide a written explanation within 20 days the date of this notice, the NRC will presune that you have no further interest in the re and will close the file on your FOIA request. You may submit a new request with the nece explanation in the future.

Your FOIA request cannot be categorized for parent of fees because you have not provide:

sufficient explanation of your intended use of the requested records. Please provide a written notice. explanation of your intended use of the records within 20 days from the date of If the NRC does not receive a written explanation within that time, the NRC will presume that you have no further interest in the records and will close the file on your request.

You may submit a new F0!A request with the necessary explanation in the future.

C0tHENTS Signature Chief, eedom of Information and Privacy Acts Branch Y TJ

J l' ' '

, .{

'%, i

.i

.4

• ., .]

1

.i .

f 3

1 ATTACHMENT B-

/p u.m'g UNITED STATES NUCLEAR REGULATORY COMMISSION

.. 3 I nAsHwarow. o.c. aoems

• $ October 12, 1988

..... ACKNOWLEDGMENT .__

This acknowledges receipt of your recent Freedom of Information Act (FOIA) request. The FOIA number which it has been assigned and the date it was received by this office are noted on the face of your request, a copy of which is enclosed.

We have also enclosed a notice about fees that'shows NRC's evaluation of your request with regard to assessment of fees. The notice pertains to the present FOIA fee structure (5 U.S.C. 552(a)(4)) and NRC's regulations at 10 CFR Part 9 (52 Fed. Reg. 49350).

If a notice about fees requires no action by you, the NRC will respond to your request as soon as possible. However, because of the existing backlog of cases and the time needed to search for records subject to your request, there may be some delay in our response.

If you have any questions about the status of your request, you may telephone the staff member whose name and telephone number are identified below.

F01A-88-519 Nina Toms (301) 492-8993 Sincerely Linda L. Robinson, Chief ,

FOIA/LPDR Branch {

Division of Freedom of Information .

and Publications Services  ;

Office of Administration and 1 Resources Management

Enclosures:

As stated a

l i

1

}

Regws g o.

-FOIA-,u *S/ f

[M g '% 9

~

g UNITED STATES NUCLEAR REGULATORY COMMISSION Date

e wAsmwo ton. o. c. rossa s, /a FEES FVR FREEDOM OF INFORMATION ACT (EVIA) REQUEST Requester hnf,w q-Pursuant to t'he EDIA, 5 U.S.C. V52(a)(4), and the NRC's regulations,10 CFR 9.33, 52 FR 49350, FOIA request has been evaluated for proper categorization for payment of fees, as noted belcw.

thm NRC estimates fees will exceed 525.00, the NRC will provide a statement of estimated fees tha Cccrnents section of this form or by a separate notice that will be sent to you as soon as possible, unless your FOIA request states your willingness to pay fees as high as estimated.

A request for records for a concercial use, which requires the payment of costs for searen review, and duplication of records which are responsive to your request.

A request for records for a nonconnercial use by a representative of the news media, an educational or nonconcercial scientific institution, or an individual who requests under t' Privacy Act and the FOIA records on the individual in a Privacy Act system of records, whi.

requires exceed 100 the payment of costs for the duplication of records responsive to your request the pages.

A request for records for a noncccmercial use, which requires the payment of costs of seart for records responsive to your request that exceeds two hours and for duplication of diselt records which exceed 100 pages.

Based on inforriation in your request, the NRC categorized the request as noted above. If ;

disagree with the noted categorization, please telephone within five days from the date of this notice the NRC employee whose name and telephone number appear on the acknowledgement letter to notify the NRC of your disagreement with the categorization. Please provide a written explanation of your intended use of the records within 20 days from the date of th:

notice.

If you do not telephone the NRC employee within five days, the NRC will prestne tt you agree with the noted categorization and will process your request in accordance with tr categorization.

If you disagree but do not provide a written explanation sithin 20 days fr the date of this notice, the NRC will presune that you have no further interest in the rec:

and will close the file on your FOIA request. You may submit a new request with the necess I explanation in the future.

Your EVIA request cannot be categorized for payment of fees because you have not provided a sufficient explanation of your intended use'of the requested records. Please provide a written explanation of your intended use of the records within 20 days from the date of thi notice. If the NRC does not receive a written explanation within that time, the NRC will j

' presume that you have no further interest in the records and will close the file on your request. You may submit a new POIA request with the necessary explanation in the future.

COMMENTS 1

l l

Sign u Chie IA/LPDR Branch c

$A \

NM '

j

- - - - - - - - - - - - - - . _ ,w,-,n--_

e 0 5 N

i ,

} ..

s 0

1 ATTACHMENT D r

I

- - - - - - - - ~ ~ _ _ _ _ _ _ __ - - - _ _ _ __

$d -

It 1..

ATTACHMENT F

_ __-. . _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ - _ _ - _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ - _ _ - - _ _ - - _-