ML20267A081
| ML20267A081 | |
| Person / Time | |
|---|---|
| Issue date: | 08/12/2020 |
| From: | Thomas Wellock NRC/SECY |
| To: | NRC/OCM |
| Wellock T | |
| References | |
| MD 3.53 Part IV | |
| Download: ML20267A081 (15) | |
Text
1 Part IV Procedures for Managing Commissioners' Records and Papers The procedures of Part IV, Procedures for Managing Commissioners Records and Papers, have been established for the management and disposition of records accumulated by Commissioners and their staffs during their terms of office. The procedures provide guidance in organizing and maintaining records, determining which records must be retained to preserve a full record of each Commissioner's activities, safeguarding against unauthorized or inadvertent release of classified or sensitive information, handling the removal of copies of certain NRC records by a departing Commissioner, granting access to a former Commissioner to certain NRC records, and providing conflict-of-interest reviews to former Commissioners.
Questions related to the purpose or applicability of Part IV (such as record anomalies or peculiar cases) should be directed to the Secretary of the Commission.
(A) General Requirements (1) Commissioners and their staff, have a responsibility to maintain agency records, including:
(a) Determining the record status of documentary materials, including e-mail, and preserving official records that they create, receive, or access as prescribed by the policies set forth in NUREG-0910 and the General Records Schedules (GRS)
(https://www.archives.gov/records-mgmt/grs.html);
(b) Preserving Federal records and preventing and reporting their unlawful destruction, defacement, or removal in accordance with 36 CFR 1230; and (c) Protecting classified, safeguards, Sensitive Unclassified Nonsafeguards Information (SUNSI), and, when implemented, Controlled Unclassified Information (CUI) contained in official NRC records in accordance with the provisions of Management Directives (MDs) 12.2, NRC Classified Information Security Program, 12.3, NRC Personnel Security Program, 12.5, NRC Cybersecurity Program, 12.6, NRC Sensitive Unclassified Information Security Program, and 12.7, NRC Safeguards Information Security Program, Executive Order 13556, Controlled Unclassified Information, and 32 CFR 2002, Controlled Unclassified Information (CUI).
2 (2) Though it is not advised, if a Commissioner chooses to use a personal email account to conduct Government business, he or she has twenty (20) days after creating an agency record to forward that agency record to his or her Government email account.
(3) Likewise, while it is not advised, if a Commissioner chooses to use a personal cellular device for text messaging to conduct Government business, he or she has twenty (20) days after creating such a text message to forward it, including metadata that must be entered manually, to his or her Government email account. For guidance, see the OCIO internal webpage at https://drupal.nrc.gov/ocio/32201.
(4) Departing Commissioners may remove their personal papers and, after signing a confidentiality agreement and certifying that certain categories of documents have been properly segregated (Exhibit 1), extra copies of non-public agency documents in their files that are not identified in Section (E)(2) as required to remain in the exclusive possession of the NRC.
(5) Former Commissioners may access or remove extra copies of nonpublic records from the agency upon execution of a confidentiality agreement (Exhibit 2) with the NRC and subject to the limitations specified in Section (F). Nonpublic documents must be handled under the requirements of this part, relevant Federal statutes, and NRC regulations and directives, including:
(a) Section 147 of the Atomic Energy Act of 1954, as amended, 42 U.S.C. § 2167 (b) Freedom of Information Act of 1966, as amended, 5 U.S.C. § 552 (FOIA)
(c) Privacy Act of 1974, as amended, 5 U.S.C. § 552a (d) 10 CFR 2.390, Public inspections, exemptions, requests for withholding (e) Management Directive (MD) 12.2, NRC Classified Information Security Program (f) Executive Order 13556, Controlled Unclassified Information (CUI)
(g) 32 CFR 2002, Controlled Unclassified Information (CUI)
(h) Management Directive (MD) 12.6, NRC Sensitive Unclassified Information Security Program.
3 (B) Briefings on Office File Management (1) Incoming Commissioner Briefing on Records Management (a) Within the first weeks of a new Commissioners arrival at the NRC, the NRC Historian will request to schedule a briefing on records management for the Commissioner and his or her staff by a Records Team consisting of the Historian and staff from the Office of the Secretary (SECY), Office of the Chief Information Officer (OCIO), and Office of the General Counsel (OGC).
Additional briefings may be scheduled at the request of the Commissioner or his or her staff.
(b) During these introductory meetings, the Records Team will (i) Provide a recommended electronic management setup and file structure (ii) Explain typical practices for the maintenance of a variety of record classifications, including permanent and temporary, classified and unclassified, and electronic and paper and how to maintain the electronic records in agency drives and databases (iii) Explain recommended practices for organizing the Records of the Office of the Commission, (chronological files, office files, schedules, and emails for a Capstone Official)
(iv) Explain recommended practices for organizing correspondence, votes, and action items in the Commission System for Tracking and Reporting (STAR)
(v) Establish expectations regarding the types of files Commissioners will and will not be able to remove at the conclusion of their service (vi) Recommend the Commissioner and his or her staff clearly identify and segregate different classes of records, such as reference materials, personal papers, and public and non-public records
4 (vii) Discuss requirements for the preservation and disposition of the Commissioners office files at the end of his or her term of office (viii) Answer any other records-related questions the staff or Commissioner poses.
(2) Departing Commissioner Briefing (a) If a Commissioners term will expire without reappointment or the Commissioner has announced the intention to resign before the end of the term of appointment, the Commissioners staff should contact SECY and the Historian to schedule a briefing for the Commissioner and his or her staff on the appropriate preservation and disposition of the Commissioners office files.
The briefing will include the Historian and records staff from SECY and OCIO. Additional briefings may be scheduled at the request of the Commissioner or his or her staff.
(b) During the briefing, the Records Team will cover (i) The separation and removal of personal papers and copies of publicly-available records from the NRC (ii) How a Commissioner may remove copies of certain nonpublic records from the NRC (iii) The procedures a former Commissioner should follow to request access to nonpublic and classified records (iv) Organizing and preparing the Commissioners permanent and temporary electronic files (office, chronological, schedules, and Capstone Official email) for transfer to SECY.
(C) Description of Personal Papers, Agency Records, Office Files, and Nonrecord Material (1) Personal Papers (a) The personal papers of a Commissioner, referred to as personal records under the FOIA and pertinent case law, are (i) Documents of a private or nonofficial character that ordinarily pertain only to an individual's personal affairs and do not affect the conduct of agency business, such as family papers and
5 personal correspondence relating to private business, professional, or community service activities; or (ii) Notes prepared by the Commissioner pertaining to agency business but that (1) Are prepared for the individual's own use and have not been circulated to others in the course of transacting NRC business (e.g., green books or notes in a computer file not circulated to others);
(2) Are not required to be maintained by NRC policy or procedures; (3) Are retained or discarded at the author's sole discretion; or (4) Would not be considered agency records if requested under the FOIA. (For detailed information on FOIA procedures and definitions, see MD 3.1, Freedom of Information Act.).
(b) Maintenance of personal papers at the NRC is controlled by Section (D), Maintenance and Disposition of Personal Papers and Access to Agency Records and Nonpublic Materials.
(2) Agency Records (a) Records are defined in 44 U.S.C. § 3301 as all recorded information, regardless of form or characteristics, made or received by a Federal agency under Federal law or in connection with the transaction of public business and preserved as appropriate for preservation by the agency or its legitimate successor as evidence of the organization, functions, policies, decisions, procedures, operations, or other activities of the United States Government or because of the informational value of data in them; and the term records does not include (i) Library and museum material made or acquired and preserved solely for reference or exhibition purposes; or (ii) Duplicate copies of records preserved only for convenience.
(See this part, Section (C)(4), Nonrecord Material.).
(b) One copy of each agency record is designated as the official
6 record copy and is kept as a part of the agency's records system.
Except for the office files of individual Commissioners defined in Section (C)(3), Office Files, SECY maintains the record copy of agency records for the Commission.
(c) Correspondence received by a Commissioner from another NRC official or a member of the public and designated personal, but relevant to the conduct of official business, is an agency record.
(d) Agency records are subject to the NRC Comprehensive Records Disposition Schedule (NUREG-0910), the General Records Schedules, and the provisions of Federal law regarding the maintenance and disposition of Federal records.
(3) Office Files (a) The office files of an individual Commissioner are those records of informational value that relate to agency business and, as a collection, are unique to that Commissioner's office. Except for personal papers, the office files are agency records and include the following material:
(i) Notes, memoranda, correspondence, email, and other papers written by or exchanged between a Commissioner and members of his or her personal staff, or written by or exchanged between members of the Commissioner's staff without any circulation outside the Commissioner's office (ii) Notes, memoranda, correspondence, email, or other papers received by the Commissioner or his or her staff from another Commissioner or a member of the other Commissioner's staff that were not circulated to other Commissioners' offices and SECY (iii) Notes, memoranda, correspondence, email, or other papers from Commission-level offices or Executive Director for Operations (EDO) staff offices, from Congress, from other Government agencies, or from members of the public that were not circulated to other Commissioners' offices and SECY (iv) Transcripts of telephone conversations relating to agency business (v) If circulated to members of the Commissioner's staff, copies
7 of agency records on which the Commissioner makes his or her own notations.
(b) Office files do not include SECY papers or formally tracked memoranda (COMSECY papers).
(c) The files of an individual Commissioner's office must be maintained as a separate category of agency records under the title Office Files of Commissioner .
(4) Nonrecord Material Extra copies of agency records are commonly regarded as nonrecord material and may be disposed of without reference to the requirements of the Federal Records Act, which define Federal records and prohibit their destruction or removal from Government custody without the approval of the Archivist of the United States.
(D) Maintenance and Disposition of Personal Papers and Access to Agency Records and Nonpublic Materials (1) Maintenance of Personal Papers (a) Personal papers that are maintained in a Federal office should be filed separately from agency records to (i) Eliminate the likelihood that personal papers will be confused with agency records and be made available under the FOIA (ii) Ease the removal of personal papers when a Commissioner departs the agency and avoid inadvertent destruction or removal of official record material (iii) Facilitate retrieval of agency records and thus enhance operational efficiency.
(b) When matters requiring the transaction of official business are received or transmitted in personal correspondence, that portion of the correspondence that pertains to official business must be extracted and made part of the agency record.
8 (2) Disposition of and Access to Personal Papers and Office Files (a) NRC does not have authority over the disposition of or access to personal papers as defined in this part, Section (C)(1), Personal Papers. To ease disposition and access, Commissioners should keep their files of personal papers separate from agency records and nonrecord materials.
(b) Agency records, including nonpublic documents contained in office files, cannot be destroyed or removed from NRC.
(c) Record copies of office files of an individual Commissioner will remain in the exclusive possession of NRC. A departing Commissioner may remove reproduced copies of his or her office files that he or she created, reviewed, or maintained while serving as a Commissioner, subject to the conditions and procedures for this removal specified in this part, Section (E), Removal of Personal Papers and Nonrecord Materials by a Departing Commissioner. A former Commissioner may also be permitted access to his or her office files by submitting a written request and after signing a confidentiality agreement (See Exhibit 2 and Section (F)).
(3) NRC Storage When a Commissioner leaves NRC, he or she may store personal papers and nonrecord materials, including reproduced copies of office files, with SECY for 6 months. If the documents have not been removed by the end of the 6-month period, the Agency Records Officer will contact the former Commissioner to make appropriate arrangements for the disposition of the files. If at the end of the 6-month period the Agency Records Officer cannot contact the former Commissioner, the materials will be subject to destruction under the NRC schedule for the disposition of nonrecord material.
(E) Removal of Personal Papers and Nonrecord Materials by a Departing Commissioner (1) Releasing Vote Sheets and Office Files In accordance with general Commission practice concerning the handling of predecisional and sensitive information, a Commissioner may release copies of his or her office files or his or
9 her own vote sheets at any time before the expiration of his or her term. Copies of these released documents may be handled in the same way as any other publicly released document to the extent the released document does not contain non-public information. A Commissioner may, for a period of 6 months after the end of his or her term, recommend the release of reproduced copies of his or her office files or vote sheets to the Secretary of the Commission.
The Secretary will make the final determination regarding release.
The original copies of these documents are agency records that cannot be removed from NRC.
(2) Removing Copies of Nonrecord, Nonpublic Materials in a Departing Commissioners Files In addition to personal papers and extra copies of publicly released material, Commissioners may remove certain nonrecord, nonpublic materials in accordance with the procedures specified in this section.
Before removing any copies of nonpublic files from the NRC the departing Commissioner must sign a confidentiality agreement and certify (Exhibit 1) that the following categories of sensitive agency records have been separated from the files. These categories of nonpublic records will remain in the exclusive possession of NRC:
(i) Official record copies (ii) Documents marked Sensitive Unclassified Non-Safeguards Information (SUNSI) and, when implemented, documents marked Controlled Unclassified Information (CUI)
(iii) Classified information (iv) Personnel information, including OIG reports relating to personnel matters (v) Safeguards Information (vi) Adjudicatory action papers (vii) Vote sheets of other members of the Commission not released to the public (viii) Closed Commission meeting transcripts
10 (ix) Nonpublic documents received from other Government agencies (x) Nonpublic reports prepared by OIG.
(F) Access to and Use of Nonpublic Materials by a Former Commissioner (1) Access by a Former Commissioner to Unclassified Information after Signing a Confidentiality Agreement (a) If a former Commissioner wishes to access or obtain nonpublic documents from his or her term of office, he or she should make a request, in writing, to the Secretary of the Commission. The Secretary, after consultation with the General Counsel and the Commission, has the authority to permit access to these materials.
(b) Upon agency approval of the request and after signing a confidentiality agreement (Exhibit 2), the former Commissioner may schedule a visit to NRC headquarters to review his or her unclassified office files.
(c) If a former Commissioner wishes to have unclassified documents released that are not public or wishes to cite or quote them for publication, he or she should make a request in writing to the Secretary stating the reason he or she wants the document(s) to be released to the public. The Secretary, after consultation with the General Counsel and the Commission, will determine whether to make the requested documents publicly available.
(2) Access to Classified Information (a) Access to classified information that a former Commissioner originated, reviewed, signed, or received while in office can only be granted by the Chairman upon a written determination that allowing continued access to classified information is consistent with the provisions of applicable Executive Orders or other Government directives. Exhibit 3 is an example of a letter requesting continued access to classified information. Exhibit 4 is an example of the Chairman's response.
(b) A request for continued access to classified information will be coordinated by the Director of DFS, ADM, under NRC security directives and applicable statutes, Executive Orders, and implementing regulations. The combinations to the security
11 containers inside NRC will be maintained by SECY.
(3) Nonpublic Documents Unless written authorization is obtained as specified in this section of this part, requests for access to nonpublic documents will be handled under the procedures for FOIA requests.
(G) Conflict-of-Interest Review (1) A conflict-of-interest review will be conducted, upon request, if a former Commissioner seeks agency legal advice on whether he or she is precluded from participating in a matter on behalf of someone other than the United States under the following laws, regulations, or rules:
(a) Federal conflict-of-interest laws or regulations; (b) Rules of the relevant bar association, in the case of former Commissioners who are attorneys; or (c) Rules of other professional organizations.
(2) In these instances, the former Commissioner should contact the General Counsel for review of nonpublic documents to assist OGC and the former Commissioner in making a conflict-of-interest determination.
(3) In conducting the review, the General Counsel or designee may permit limited access to and discuss nonpublic documents with the former Commissioner, as OGC deems appropriate, before providing the former Commissioner with legal advice on conflict-of-interest matters. In deciding whether to grant limited access to nonpublic documents to the former Commissioner, the General Counsel or designee will take into consideration, among other things, any obligation the former Commissioner may have under the rules of the relevant bar association or other professional organization to make a conflict-of-interest determination. If the General Counsel or designee does not grant limited access to nonpublic documents to the former Commissioner, the General Counsel or designee will, upon the request of the former Commissioner, provide him or her with a written statement that explains why access has been denied.
12 Exhibit 1 Confidentiality Agreement for a Departing Commissioner I, [name of executing official], hereby acknowledge that in accordance with Part IV of NRC Handbook 3.53, NRC Records Management Program, I have removed copies of agency documents that contain nonpublic information. These documents were part of my files during my tenure as a Commissioner.
In accordance with Part IV of NRC Handbook 3.53, "NRC Records Management Program," a review was conducted to segregate papers within the following categories of records:
(i) Official record copies (ii) Documents marked Sensitive Unclassified Non-Safeguards Information (SUNSI) and, when implemented, documents marked Controlled Unclassified Information (CUI)
(iii) Classified information (iv) Personnel information, including OIG reports relating to personnel matters (v) Safeguards Information (vi) Adjudicatory action papers (vii) Vote sheets of other members of the Commission not released to the public (viii) Closed Commission meeting transcripts (ix) Nonpublic documents received from other Government agencies (x) Nonpublic reports prepared by OIG.
On the basis of this review and to the best of my knowledge, I hereby certify that all papers within the categories described in the foregoing paragraph have been segregated and that no such papers are included in the papers that I plan to remove from the agency when I depart.
I further agree not to disclose any of the nonpublic information that is knowable only through access to these documents to anyone unless I have been given express written permission by the Secretary of the Commission or have been so ordered by Congress or a court of competent authority. Nothing in this agreement is intended to prohibit me from expressing publicly my views on public issues, regardless of whether those views are contained in any of these documents.
I further agree that if asked or subpoenaed to produce any of these nonpublic documents I have from the Commission, I will notify the NRCs General Counsel as soon as possible, and in all cases before responding to the request or subpoena.
(Signature) (Date)
13 Exhibit 2 Confidentiality Agreement for a Former Commissioner I, [name of executing official], hereby acknowledge that in accordance with Part IV of NRC Handbook 3.53, NRC Records Management Program, I have been given access to the files and documents on the attached list, some of which contain nonpublic information. These documents were part of my files during my tenure as a Commissioner.
In consideration of this grant of access, I agree not to disclose any of the nonpublic information that is knowable only through access to these documents to anyone unless I have been given express written permission by the Secretary of the Commission or have been so ordered by Congress or a court of competent authority. Nothing in this agreement is intended to prohibit me from expressing publicly my views on public issues, regardless of whether those views are contained in any of these documents. To help me determine whether information in any of these documents continues to be nonpublic, NRC will provide me annually, upon request, a list of documents that appear on the attached list but that have been made public since the date of this agreement.
I further agree that if asked or subpoenaed to produce any of these nonpublic documents I have from the Commission, I will notify the NRCs General Counsel as soon as possible and, in all cases, before responding to the request or subpoena.
(Signature) (Date)
Attachment:
List of Files
14 Exhibit 3 Request to the Chairman for Access to Classified Information and the Chairman's Response
[Name]
Chairman U.S. Nuclear Regulatory Commission Washington, D.C. 20555-0001
Dear Chairman [Name]:
Executive Order 12958 provides that a former Presidential appointee may continue to have access to classified information that he or she originated, reviewed, signed, or received while in office if the agency makes a determination that allowing continued access to such classified information is consistent with the interest of national security.
As you know, NRC has or will retain all the classified information in my files. Since I wish to have continued access to that information, I request that you make the determination required by the Executive Order as set forth in the enclosure to this letter.
Sincerely,
Enclosure:
As stated
15 Exhibit 4 Continued Access to NRC Classified Information by Former NRC Official
[Title/Name]
Section 4.1(c) of Executive Order 12958, "National Security Information," states that access to classified information* may be granted only to perform or assist in a lawful and authorized governmental function. However, Section 4.5(b) of the Executive Order permits me to allow
[Title/Name] continued access to classified information contained in items (he or she) originated, reviewed, signed, or received while serving as a Presidential appointee, if I determine that it would be consistent with the interest of national security.
I have made this determination with the understanding that all classified information to which (he or she) will be allowed access will be protected by (him or her) from unauthorized disclosure or compromise. (Name) will safeguard the information in a manner consistent with Executive Order 12958 and its implementing directives; the Atomic Energy Act of 1954, as amended; NRC security regulations; and any requirements that may be imposed by other U.S. Government agencies for the protection of their information.
Additionally, [Name]'s access to this classified information is contingent upon (his or her) signing or having signed a Standard Form 189, "Classified Information Nondisclosure Agreement."
The documents will be reviewed only in a room with access controlled by the NRC's Division of Facilities and Security and according to other procedures specified by it, as appropriate.
Date [Signature]
NRC Chairman
- NRC classified information includes National Security Information covered by Executive Order12958 and Restricted and Formerly Restricted Data covered by the Atomic Energy Act of 1954, as amended.