ML22230A166
| ML22230A166 | |
| Person / Time | |
|---|---|
| Issue date: | 02/21/1978 |
| From: | NRC/OCM |
| To: | |
| References | |
| Tran-M780221 | |
| Download: ML22230A166 (1) | |
Text
ORIGINAL RETURN TO SECRETAR/1T nrc
. *
- NUCLEAR REGULA TO RY COMM I S SI O ~ '-. _DRDS IN THE MATTER OF:
DISCUSSION OF RELEASE OF STAFF PAPERS DISCUSSED AT PUBLIC MEETINGS Place - Washington, D. C.
Date - Tuesday, February 21, 1978 Pages 1 - 53 ielephone:
(202) 3.47-3700 ACE - FEDERAL REPORTERS, INC.
Official Reporten 44A North Capitol Street Washington, D.C. 20001 NAT1ONWI0E COVERAGE* DAILY
DISCLAIMER This is an unofficial transcript of a meeting of the United States Nuclear Regulatory Commission held on February 21, 1978 in the 1
Commission s offices at 1717 H Street, N. W., Washington, D. C. The meeting was open to public attendance and observation. This transcript has not been revie~*1ed, corrected, or edited, and it may contain inaccuracies.
The transcript is intended solely for general informationa1 purposes.
As provided by 10 CFR 9.103, it is not part of the formal or informal record of decision of the matters discussed. Expressions of opinion in this transcript do not necessarily reflect final determinations or beliefs. No pleading or other paper may be filed \*lith the Commission in any proceeding as the result of or addressed to any statement or arg~1ment contained herein, except as the Commission may authorize.
CR 6469 dav 1 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION 2
3 4
DISCUSSION OF RELEASE OF STAFF PAPERS 5
DISCUSSED AT PUBLIC MEETINGS 6
7 8
Room 1130 9
1717 H Street, N.W.
Washington, D.C.
10 Tuesday, February 21, 1978 11 The Commission met, pursuant to notice, at 1:55 p.m.
12 13 BEFORE:
14 DR. JOSEPH M. HENDRIE, Chairman 15 PETER A. BRADFORD, Commissioner 16 VICTOR GILINSKY, Commissioner 17 RICHARDT. KENNEDY, Commissioner 18 19 20 21 22
- 23 24 Ace-Federal Reporters, Inc.
25
469. 09. 1 2 gsh P R OC E E D I NG S 2 CHAIRMAN HENDRIE: Okay. Could .we come to order?
3 The subject before the Commission is discussion of 4 a paper from the Office of Policy Evaluation and the 5 General Counsel on the release of documents that are 6 discussed a~ open meetings of the Commission.
7 We had earlier dealt with a number of related 8 aspec~s, transcripts of Commission meetings, tape recording 9 of Commission meetings by people in the audience, television 10 coverage of hearing boards and so on. This is another
,JI i tern in .that sequence of communication matters.
.12 I noti.ce there are a number of options. I picked 13 my way through this paper with more than the ,usual 14 d i f f i cul t i es
- I hope th a t St e v e , you and Ke n , wLl l be ab l e 15 to lay it out for us in clear terms.
16 Would you like to start?
17 MR. PEDERSENg Why not?
18 I think your dif.ficulty, Mr. Chairman, in picking 19 you.r way through it was no less than our difficulty in 20 trying to accommodate everyoneJs view.
21 CHAIRMAN HENDRIE: If you get beyond the place 22 ~here there 1 s the obvious and stupid option on this side 23 and the obviously stupid on this one so that IJm left with 24 the one in the middle, once you go past that 25 MR. PEDERSENg It started that way, Mr. Chairman,
69.09.2 3 gsh but it blossomed, as various offices had to look at it.
2 So I sympathize with your difficulty. As you 3 said, this came out of the general set of issues regarding 4 a series of questions dealing with public meetings.
5 I believe it was initially raised in an OGC 6 memo, or whatever, a list of things that the Commission 7 might want to consider, one of which is releasing papers 8 that were discussed or were the subjBct o+/- these open 9 meetings. And this paper attempts to provide you with a 10 set of options as to whether you want to do it. If so, J 1 which documents? And when? And under what conditions?
12 I think the general concern here is the idea that 13 release of these papers 9 in one way or another, would assist 14 the public in following these public meetings and 15 understanding what was being discussed, and perhaps make sense 16 of the transcripts, more sense of the transcripts if they 17 choose to study them in the PDR 9 or whatever.
18 As an opening, I would say that whatever the 19 Commission decides, short of the status quo, particularly if 20 you go with options 3, 4, or 5, one of those, that you will 21 be going significantly beyond whatJs required of you in any 22 legal sense, and fairly significantly beyond what any other 23 agency in town that we were able to find is currently doing.
24 So if you go with option 3, 4 or 5, you would be 25 moving out pretty much into the vanguard of agencies in this
~69.09.3 4 gsh regard.
2 JJll try to summarizs some of the considerations 3 in the paper very briefly. Then if you hav.e particular 4 areas you*'-re intereste.d in, we can go back over them in 5 more detail.
6 However, I .won't try to speak for every office 7 thatJs represented here. JJm sure they can speak well for 8 themselves.
9 In terms of the details of their recommendations, I 10 think th.e policy option, the major policy considerations are
.11 pretty easily understood here. TheyJre essentially balancing 12 here a consideration of openness and being more forthcoming 13 wit~ the public ~1th regard to letting them see the 14 documents that youJre looking at in the deliberatians and the 15 open meetings, balancing this off against the protection of 16 your ability to give candid observations 9 candid advice, and 17 so on.
18 This is a classiG argument or debate. WeJve had 19 it here in various contexts, and Lthink you understand_the 20 issues, certainly, as weil as I and the staff do.
21 Let*'s turn then to the options that we presented 22 and IJll try to summarize them briefly, indicate where the 23 various offices come out, and then let them speak more 2-4 for themselves and respond to your questions, if you have 25 th.em.
5
~69.09.4 gsh Opt i on 1 i s e s s en t i a 11 y the s t at us q u o .opt i on ,
2 which would be to continue present practice. We do from 3 time to time make papers available and put them in the PDR.
4 vfo did that with the GESMO paper at one point just prior to 5 a meeting.
6 So present practice entails something on an ad 7 hoc case~by-case approach. But by and large, we have left 8 these papers to be gotten through the FOIA procedures with 9 the opportunity from time to time of putting them in the 10 public document room, but on the base of a discretionary 11 ad hoc a c t ion by the C.o mm i s s i on
- 12 The second option goes a slight step beyond that, 13 and that would be to have the sta1f prepare a summary of the 14 paper, a short summary, which would be put in the public 15 documsnt room in advance of the meeting.
16 Now there~s some precedent for this. From time 17 to time now the staff prepares vugraphs and so on, and theyJre 18 available when people come through the dDor. And they are 19 used by people who come and attend the meetings.
20 This would simply extend it to mean that there would 21 be a summary-type of statement co.nnected with every SECY paper 22 that you discussed in an open meeting.
23 COMMISSIO'.\!ER GI LINSKY; ~lea~~ the summary or prepare 24 a summary especially -for release?
25 MR. PEDERSEN: The summary would probably be
6 f69.O9.5 gsh prepared especially for release or with an eye toward 2 release.
3 Not every paper you get now has an executive 4 summary associated with it.
5 I would think in most cases, Commissioner, the 6 summary you would release is essentially the summary that 7 is already available in some of these papers.
8 COMMISSIONER KENNEDY: Can the staff estimate the 9 cost in effort and time?
MR. PEDERSEN: They did not estimate in terms of
,JI .man-hours. However, I was about to say that with respect 12 to this particular option, the stasff virtually unanimously 13 :vie.w.ed that the summary, the preparation of such a summary 14 for each paper would be a rather time-consuming burden 15 on them.
16 COMMISSI.ONER GILINSKY: What-'s the point of 17 releasing summaries and not releasing papers?
18 MR. PEDERSEN.: This is merely an option. The 19 idea would b~, I suspect 20 COMMISSI.ONER GILINSKY: No, what's the point of 21 it?
22 MR. PEDERSEN: The idea would be that the summary 23 would detail s.ort of the general points of the briefing. But 24 if the paper .contained, let*'s say, some sensitive analysis 25 in it, or some kind of indication of, I don-'t know,
7 69.09.6 gsh disag~eements between the staff and whatever that you 2 felt might not be in the public interest to reveal, the 3 summary could give the broad highlights.
4 COMMISSIONER GILINSKY: Which means that some 5 releases would be pretty bland.
6 MR. PEDERSEN: I think how bland or how detailed 7 they would be would be a matter either up to the staff or 8 would be a question of Commission guidance.
9 I think the Commission would have to perhaps give 10 the staff greater guidance if they felt they were too
.11 bland.
12 My guess is, if you ask me personaily, yes, the 13 summaries would probably be rather bland documents, probably 14 quite general in tone.
15 COMMISSIONER GILINKSY: What fraction of the 16 documents now have* su:mmari@l@?
17 MR. PEDERSEN: To be honestly truthful, I have not 18 done an analysis.
19 Lee, do you have any sense --
20 MR. GDSSICK: A special summary?
21 MR. PEDERSEN: No, not a special summary. But many 22 o1 them have now in the first three or four paragraphs of 23 the paper, youJil frequently find what would amount to an 24 overview of the paper, and I would imagine that would 25 become the summary.
8
~69.09.7 gsh MR. GOSSICK: Sometimes the paper is sort of 2 briefed down to its essentials with the staff paper with 3 the great depth is attached.
4 MR. PEDERSEN: No special summaries are being 5 prepared now at all, no.
6 But I think if you read the papers, in many cases 7 you get a cover memo that amounts to a summary and I would 8 think the summary would essentially be that in many cases.
9 There are no special summaries being prepared now.
JO Another thing would be that I guess there would
.11 be a cost factor. If your decision was for these papers, 12 if You wanted to make them available just beyond_the PDR 13 available, let.,s say, to an audienc.e th.at came in, many of 14 these papers get quite lengthy. And a summary would allow 15 you to keep this within bounds in terms of work effort, 16 cost, to SECY, per SECY, and other parts of the staff.
17 COMMISSIONER GILINSKY: Are you rea.lly talking about 18 printing a new class of doc.uments that don*'t exist now?
19 MR. PEDERSEN: In terms of option 2, that's 20 absolutely correct. I donJt know .what it would be in terms 21 of documents, but it would be a ne.w piece of the SECY paper.
22 Yes, that is not the option, by the way, 23 Commissioner, that any member of the staff recommends. IJm 24 just taking you through th.e va.rious options.
25 I was hoping to summarize the paper. Okay?
9 COMMISSIONER BRADFORD: We 1 ve be.en known to do 2 things sometimes in that framework.
3 MR. PEDERSEN: IhatJs another point, t~o. You 4 might see wisdom in it where we could not.
5 No member of the staff recommended that option.
6 Okay?
7 The third alternative is a discretionary release 8 of all sta.ff papers submitted to the Commission that would 9 be discussed or that are subjects of open meetings. And 10 this begins to get a little complex.
J1 So here-'s where r'll try to simplify, if I could.
12 What this option foresees is that staff papers that 13 are the subject of open meetings would be released in 14 advance. No later than one day in advance, I believe is the 15 term used in the paper, at the discretion -- or put it 16 another way*-- unless the director of the originating oifice 17 or if the Commission chooses at the discretion of the 18 Commission-~ this is an option you might want to avail 19 yourself of -- chooses not to make it so available. And 20 in making such a decision, the director of the originating 21 office would have to specify a certain reason why he is 22 not making it available to the POR.
23 And .we suggest 9 or the paper suggests, I should 24 say, that those guidelines would encompass a number of the 25 FOIA exemptions, namely, J, 3, 4, 7. This deals with
10 t69. 09. 9 gsh classified information, proprietary ~nforrnation, unwarranted 2 invasion of privacy, and so forth, or where there would be 3 *11 a sufficient prospect of actual harm to legitirnat.e public 4 or private int ere st. Ac.ca ss to the requested record to 5 be gr an t ed. *"
6 And this is essentially the Department of Justice 7 standard.
8 COMMISSIONER BRADFORD: Is that last phrase the 9 difference bet.ween option 3 and option 5?
10 MR. PEDERSEN: Well, no. The main difference 11 between option 3 and option 5, Commissioner, is not that 12 phrase. ItJs the ability to withhold.
13 nption 5 foresees that all documents would 14 automatically go to the PDR, that an office director could 15 not say 9 although I think you would have to, as it points 16 out here, clearly in a case of classified information, I
17 there .would. be certain instances that you simply couldn't I
I 18 hurdle. But option 5 would say papers would automatically I 19 go in the PDFI.
I I 20 COMMISSIONER BRADFORD: (r.Jhether they're discussed I
21 or not?
I I
22 MR. PEDERSEN~ Whether theyJre discussed or not.
I We havenJt gotten to that little twist yet in option 3.
I e 23 2-4 MR. OSTRACH: Commissioner, as a practical matter, 25 yes, sir. Largely, documents that could be .withheld on
11 469.09. 10 gsh the basis of exemptions 1 and 3, 4 or 7, would not be 2 discussed at open meetings anyway. So there would be 3 very few cases where those exemptions would justify staff 4 withhol.ding a paper that ,we*"re discussing in this 5 situation here.
6 That.,,s only the second part of the Justice 7 Department standard. The first part is that it be pre-8 decision or with material under exemption 5.
9 Up to the time of the meeting, though, all of JO thesB papers would be such *
.l l MR. PEDERSEN: The ma in difference bet.ween 3 and 5 12 purely then is whether the office director would have the 13 discretion to say, "I don.,,t_ think that they should be made I4 a va i labl e 9 11 or woul.d not have the di sere t ion.
15 Now that discretion could either reside with the 16 office director 9 or it could be a recommendation on his part 17 in which the Commission could then make the final decision.
18 I _think the staff is unanimous in recommendation 19 that the Commission not involve itself in that decision, 20 for reasons that I think would just get extremely complex 21 and would usually bring up tight against the deadline anyway 22 in these casBs. And you would probably never get it in the 23 PDR 24 hours2.777778e-4 days <br />0.00667 hours <br />3.968254e-5 weeks <br />9.132e-6 months <br /> in advance if you left it to the Commission le 24 to make these decisions.
25
~
646';,. 10. 1 12 jwb or, that particular decision. Let me turn to 2 Option 4, and then I'll come back --because Option 3 and 3 4 are the two options that the various staff components 4 recommend -- and then I' Jl indicate some of the differences 5 between them.
6 Option 4 provides for an automatic release of 7 SECY papers ,that are the topics of the open meetings. In 8 other words, it would be limited to just the SECY paper 9 that is the topic of the meeting that is usually identified 10 on the agenda, and it would be automatic.
,11 1here would be no discretion. If the schedule 12 says 11 Di sc uss ion of SECY such-and-such such-and-such.-"
,13 that would automatically be released -- unJess, of course, 14 it had classified portions, or something. And in those 15 cases, you probably would not be dealing with it in an 16 open meeting, in any case.
17 Now, where -- do' the various offices -- I won "t 18 go into 5, unless you want to, because no one has come out 19 in favor of 5. V~here do the various of-fices
' I.:.
come out 20 COMMISSIONER GI LINSKY: Just a minute. What is 21 5?
22 MR. PEDERSEN: 5 1
, Commissioner, is= that all 23 documents discussed at open meetings, or the.topic of 24 discussion at open meetings, would be released.
25 COMMISSIONER GI LINSKY= That means any document
I 64oY.10.2 13 jwb that would be mentioned wou]d be released?
2 MR. PEDERSEN: Yes. And if you wanted to 3 release in advance', Commissioner, you'd have to say 11 any 4 document that you anticipated might be mentioned."
5 One of the reasons this paper is so complex 6 is that there .are issues weaving within issues. What do 7 you want to release? ~hen do you want to release it?
8 Under what conditions can you not release it?
9 Under Option 5, if you wanted to release in 10 advance, you would have to not only release al] documents l1 that you anticipate --
COMMISSIONER GILINSKY: Forget about "in 13 advance." Suppose you released the SECY peper in advance, 114 and you have a discussion, and various other documents are 15 mentioned. Suppose a document is mentioned which is on
,16 its way up to the Commission.
17 MR. PEDERSEN= You mean: has not come to the 18 Commission, yet? Is in preparation?
19 COMMISSIONER GI LINSKY: Does 5 contemplate 20 releasing that~
21 MR. PEDE:RSEN= All that we were thinking of was 22 about docume~ts that were completed. I can see -- that's an 23 interesting point you raise, which, quite frankly, I hadn't 24 thought of -- where you could have a reference made to a 25 document under development, then would you be committing
640S.-.10.3 14 jwb yourself, in advance, to release that? We did not
- 2 3
4 anticipate that would be the case.
COMM! SSIONER GI LINSKY=
about documents in final form?
YouJre just talking 5 MR. PEDERSEN= We're talking abc-ut documents 6 discussed -- that the Commission has in hand.
7 COMMISSIONER GILINSKY= Now "documents in final 8 form, 11 insofar as they're the subject of Commission 9 discussions, would get released in due course, anyway, 10 right, und_er, say, C)ption 4/
.I 1 MR. PEDERSEN= .If they were discussed, and if 12 the office director of the originating office agreed to 13 release them.
114 COMMISSIONER GI LINSKY: If they were the subject 15 of the meeting.
1 16 MR. PEDERSEN: If they were the subject of the 17 meeting, or if they were discussed at the meeting. That's 18 what Option 3 foresees.
19 In a minute, I'm going to explain that this is 20 Where OGC and OPE sort of part company. And maybe it; Jl 21 be com.e clear to you, as .I go into that. Okay?
22 All right. There essentially are three options 23 that the staff the varoius staff components -- have 24 congealed around. I think I can state them fairly simply:
25 OGC and EDO, and I believe SD, believe that all
6469. 10 .4 15 jwb papers that are --
2 COMMISSIONER KENNEDY: Who is II ED0 11 ?
3 MR. PEDERSEN: It was signed by Mr. Gos sick.
4 The packages, Commissioner, are all the comments that we 5 have here.
6 COMMISSIONER KENNEDY= Oh.
7 MR. GOSSICK: It includes INE and ELD, also.
8 MR. PEDERSEN: But !NE and ELD sent their own 9 separate papers, so I assumed that where there was a 10 statement in here that was stated in a general term, that ii 1 that was the ED) together with INE and SD, as amended.
12 COMM! SS.IONER KENNEDY= I was just asking, because i1 3 I noted the comment about EDO, and I saw the EDO memo. But 14 then I saw, also, a number of others -- I couldn;t figure it 15 OU t*
16 MR. GOSSICK= There are some 11 yes, but 11 s attached 1
17 to my memo, to reflect the views of the various offices.
18 MR. PEDERSEN= It's 11 ED0, 11 except where noted 19 otherwise. I guess would be the best way to state it.
20 COMM! SSIONER BRADFORD: Is there any distinction 21 drawn anywhere, in any of these, between dccuments coming 22 from outside the Commission's offices, and those that our 23 own staff would ge.nerate?
24 MR. PEDERSEN: I think, if you mean your own 25 assistants within .your offices, I think that none of us
I 6469. l 0. 5 16 jwb contemplated, nor does this paper contemplate, that those 2 would be made public and put in the PDR.
".l
.._; I feel the staff didn/t feel that was their 4 prerogative. That would be a decision, it would seem to 5 me, the Commissioners would have to make. And it would be 6 a little p.resumptuous of us to recommend that you do that.
7 So, we did not contemplate addressing --
8 COMMISSIONER BRADFORD= All that hand-written 9 marginalia.
10 MR. PEDERSEN= Yes. We did not contemplate
,] I that. We reserved our attention to our own papers. So, 12 OGC and EDO, and I believe ELD and SD, believe that aJl 13 papers that are the topic of discussion, and that eddress 14 that topic which will be discussed, should be put into the 15 public document room at least one day in advance, on a 16 discretionary basis.
1.7 That is', the office director would have the 18 opportunity to say -11 no, 11 citing one or more of the 19 exemptions.
20 OPE recommends that the SECY paper that is the 21 topic of discussion be released in advance\ as in the other 22 earlier recommendations. But, that related staff papers 23 that are not the direct subject of the meeting not be 24 released in advance. But, if they are discussed at the 25 meeting, that consideration be given, on a discretionary
6469.10.6 17 jwb basis, to putting them in the PDR, as well.
2 COMMISSIONER GILINSKY= Who.~s-g~ing to exercise 3 this discretion?
4 MR. PEDERSEN= 1he discretion in that case I 5 t~ink would work the same way. It would be first the 6 office director who would determine that, yes. it should 7 or should not go -- subject always, of course, to 8 Commission overrid.e.
9 COMMISSIONER GILINSKY= The office director of 10 the originating office?
"l l MR. PEDERSEN: That's correct.
12 COMMISSIONER GILINSKY: And who would bring this 13 to his attention? The secretary?
14 MR. PEDERSEN: The secretary could. I would 15 assume that, in many cases, the office director or 16 representative would be at the meeting. But I think a good 17 failsafe.device would be to have the secretary take note of 18 th is.
19 The point that is at issue here 1, I think, is that 20 you have a number of papers that address the SECY paper. in 21 one way or another', that are a part of the deliberative 22 process. And I think h~re's where you have to begin to
- 23 24 25 make judgments abOut protecting your ability to give candid advice.
We're not talking here, necessarily, only about
lo4o9.I0.7 18 I
jwb OPE and OGC documents, as it may seem, but you have to 2 begin to think= At what point do your Exemption 5 3 considsrations begin to play in in the develo~ment of 4 the SECY paper, for example.
5 There's give-and-take in Bethesda various 6 offices expressing views, and so on.
7 COMMISSIONER GILINSKY= Let"s see. Would this 8 in cl ude, for example , OPE memo rand a on the d acumen ts?
9 OGC memoranda?
.10 MR. PEDERSEN: Yes, except where an OPE or an 11 OGC document is the subject of discussion.
12 For example, this memo today that we're using 13 as the basis for our discussion would, I wculd assume, have 14 gone into the PDR yesterday, if we were operating under 15 the recommendation, in this case. OPE would make.
16 However --
17 COMMISSIONER GI LINSKY: Suppose we had the paper
,1s coming up on electrical connectors, and they have written 19 a memorandum on it, OGC is going to deliver a memorandum on 20 it to the Commission. Now, what you're saying isz The 21 original paper would be released 22 MR. PEDERSEN= The paper that was prepared as 23 the basis for the Commission's discussion would be released; 24 that's correct.
25 COMMISSIONER GILINSKY: What would happen with
6469.10.8 19 jwb your memorandum?
2 MR. PEDERSE~: Our memorandum, under the OPE 3 recommendation, would not be released in advance. If in 4 the meeting one of those memoranda, became the subject of 5 discussion or it was referenced, then it wculd be 6 reieas2d on a discretionary basis. But it would be after 7 the meeting.
8 COMMISSIONER GI LINSKY: Then you wouldn "t be 9 able to use it.
.JO MR. PEDERSEN: Initially, at the outset', I would 111 have the same right, Jerry Nelson would have the same right, 12 as the Office directors did, in terms of the SECY paper, to 13 try and indicate to you that there were certain reasons why 14 we think that some of that --
15 COMMISSIONER GILINSKY: So you're putting your 16 comments on a somewhat different basis than those of other 117 staf offices, because theirs would h,:ive been included in 18 the basic paper.
19 MR. PEDERSEN: Yes, except I wouJd say one 20 thing in that regard. Many times.,you have paper_s developed 21 in Bethesda, as I'm sure that you know, that comment on the 22 SECY paper and raise issues that get brokered out in the 23 process. And those papers are not brought to your 24 attention, except where an issue remains in which case, 25 frequently they wiJl attach that paper. In many cases,
6469. 10 .9 20 jwb OPE comm en ts on these papers in advance, when we have a 2 chanc.e to see them 1
, and those comments are included in the 3 SECY paper. That gives me no problem.
4 I think', where the paper comes up to met, or to 5 my office speaking vnly for my office -- one or two 6 days in advance, "Can we give the Commissicn the benefit
] of our advice?", that that in effect would be forcing me 8 to put that in the PDR in advance. It would not be giving 9 me "special treatment", it would be putting me at a lO disadvantage.
ti 1 COMMISSIONER GI LINSKY: We're regarding that as 12 a less formal document.
,13 MR. PEDERSEN: Yes. And it isn't the document 14 that is to serve as the basis for Commission discussion.
15 If. in fact, during the meeting an OPE document -- and I I6 don't want to speak for OGC. be cause I think they would
,17 prefer to make theirs available in advance*, perhaps; I'm 18 not trying to put words in their mouth -- but if that 19 document became a subject of discussion, if in fact through 20 one of your comments it moved to the center, I believe it 21 should be consid.ered to be made public, yes.
22 But we cann0t know that in advance, and I think 23 that's why I'm saying that that protection for the candor 24 of your advice needs to be in the process.
25 So the big difference, then, be tween OGC and
*----------*-~------------
I 6469. 1o. 1o 21 I
jwb OPE *-- and I think OGC has the ELD and EDO with them --
- 2 3
4 for what it's worth, I have !NE supporting my position --
MR. PEDERSEN=
You've got the numbers.
The big difference is: 1/4hether 5 you release all documents in advance, or whether you 6 re lease only the document that is the focus for Commission 7 discussion. And then treating other documents touching on 8 it, but not directly on the subject, after you find out if 9 in fact it is an Qbject of discussion.
10 MR. GOSSI CK: I think I'd like to comment, at this 11 1 point, that whatever the Commission decides on this point on 12 how to treat OPE's advice to them, or papers, or whatever, 11.e 1 13 I would not want to see this lead to a point where all 14 drafts, from the very first time that people put pencil to 15 Paper and the process it goes through in the s.taffi, that
,16 all that be subject to going into the PDR. I think that's 17 ju st unrea sona bl e.
18 COMM! SSIONER GI LINSKY: I think we're talking 19 about final documents.
20 MR. GOSSICK: That's the point I wanted to make.
21 I would certainly agree that where there is, you know, a 22 nonconcurrence, or a dissenting or a differing view that 23 comes up in the coordination, as reflected in the policy 24 paper, that that position or view would be made known and 25 released as part of the document.
64o9. IO. I l 22 jwb COMMISSIONER GI LINSKY: I under stood this to
- 2 3
4 be the case.
MR. GOSSICK:
MR. PEDE:RSEN:
Yes; right.
Except, I would just say;, it's 5 not clear at what point it becomes "final.** Comments from 6 an office director on the draft SECY paper may be -11 final, 11 7 in terms of his comment, and yet that's not necessarily 8 reflected.
9 COMMISSIONER GI LINSKY= You say .J*SECY paper*, 11
,I 0 that people identify it. It is a package of material.
l I MR. PEDERSEN= That's correct. And that's the 112 benefit, I think, of restricting it to 11 SECY papers," at 13 some point. Because you have an identifiable body of 14 documents you're dsaling with.
15 V'lhen you start going beyond that, you get into
,16 all kinds of mushiness. as to what's picked u~ and what 17 isn't.
18 MR. OSTRACH: We view this as a Sunshine Act 19 question. And.we believe the purpose of this is, to the 20 extent feasible and useful= Let the public know what the 21 Commissioners are seeing. except where a specific probJem 22 would be caused by that.
23 We believe that one of the best ways of doing 24 that is, not only giving the public the SECY documents*, but 25 giving them the benefit of the criticism on that document,
I I
i 646 9
- I 0
- I 2 23 jwb the comment on that document -- from OPE, and OGC, and
- 2 3
4 any other sta1f office. We don't see the problem that Mr. Gossick is afraid of, because we do not believe that those are the documen.ts that are seen by the Commissioners.
5 Commissioners see the SECY paper. If it's from 6 the staff office, they see an OPE comment, perhaps an OGC 7 comment. And unless CWE or OGC or the Commission believes 8 that. due to particular circumstances, harm would be 9 caused by letting those comments out, we see no reason why
.10 the public shouldn't see them see just what OPE has to I I say about it, what OGC has to say about it -- that that's 12 just what the Commissioner_s are getting the benefit of.
13 MR. PEDERSEN= I would say that you have to 14 think, in your own mind, why you are doing this. Steve has
,15 just given one statement as to why you are doing this.
16 My understanding of why you are doing this, to 1.7 go back to the original memo, is to help the public 18 understand the discretion at the open meetings and', if 119 necessary, if they go and look at a transcript, to help 20 them understand what they see written there; that it was 21 not necessarily designed. when we first started talking 22 about this, as a way of letting the public see everything
- 23 24 25 that you see.
If that happens and we do get into this question of what about your own assistant's memos to you --
I I
I 6469. 10. 1 3 24 I jwb 11 a fter a 11, you see those 11 -- I th.ink it "s very hard to 2 begin drawing lines here.
I 3 And I think, if you think about this in terms 4 of helping the public understand the meeting and prepare 5 for the meeting, then I think you have a better ability 6 to manage what documents you're releasing here.
7 MR. OSTRACH: I agree with Ken, that helping 8 the public understand the paper at issue is perhaps *"the" 9 principle, or at least one of the principle purposes of 10 this paper. And I've found, quite often, that my 111 understanding of SECY papers has been amplified considerably 12 by. reading the OPE comrnents on it.
13 MR. PEDERSEN: You"ve never told me that before',
14 St eve.
il 5 MR. OSTRACH: It"s a we 11-kept secret, but I 16 believe that's true. I mean, OPE and OGC are supposed to 17 be the Commission's expert advisers. When they comment on 18 a paper, presumably that is to help make the paper more 19 understandable.
20 I think that, unless particular circumstances 21 mi ti gate against it --
22 COMMISSIONER GILINSKY: What I gather is, it's 23 wh e the r th e re le as e is a ut oma t i c , or whether i t 's 24 discretionary.
25 MR. OSTRACH= No, sir. It's whether it;s "prior, 11
6469. 10. 14 25 jwb or "retrospective.**
- 2 3
4 COMMISSIONER GILINSKY=
that it be prior release?
MR. PEDERSEN=
You;.re actually suggesting Whether discussed, or not, you see.
5 MR. OSTRACH: Yes, sir. OGC's recommendation is 6 that, at the same time the SECY paper goes downs~airs, a]l 7 of our recommendations are contingent upon the stuff being 8 available in a timely fashion. If it is available in a 9 timely fashion, then the SECY paper would go there', and 10 any staff comments on it. The OPE comment*. the OGC 111 comments would also be there, unless the office director 12 _decided against that.
13 The OPE position would be that the SECY paper 14 would go downstairs, and then if, during the meeting,
,15 discussion turned to "didn't OPE say thus-and-such about 16 it?", then after the meeting the OPE comment would be put 17 in the PDR.
18 COMMISSIONER GILINSKY: Often the OPE memo comes 19 jUst at the last minute.
20 MR. PEDERSEN: That"s becau5e, often, the SECY 21 pa per comes at the last minute.
22 COMM! SS !ONER BRADFORD: For God., s sake, let" s not 23 get into that.
24 MR. SHAPAR: It"s not a one-to-one relationship.
25 MR. OSTRACH: We wouldn"t be talking about deJaying
6409.10.15 26 jwb any Commission meetings because papers have not been put 2 in.
3 COMMISSIONER GILINSKY: Is there agreement that 4 the SECY paper ought to be there?
5 COMMISSIONER KENNEDY: Yes, at the next meeting 6 we'll discuss that *
.7 COMMISSIONER GILINSKY= Is there agreement that 8 the SECY paper ought to go out,,beforehand~
9 MR. OSTRACH: Yes, sir.
10 COMMISSIONER GILINSKY: So, we're really talking II about: What else, if anything, should go cut, And when, 12 MR. OSTRACH: Yes, sir; that's correct.
13 MR. PEDERSENg If I could just say one more
,14 thing, Commissioner, then I'll finish the various office 15 comments and we can begin- to discuss it.
16 SECY and NMSS favor Opt ion 4 -- which is to 17 re lease only SECY papers; to release them automati ca 11 y, 18 but to not contemplate releasing any other papers at all, 19 either after the meeting or before the meeting.
20 SECY would go slightly further than that and 21 recommend that only SECY papers be released; and that the 22 re commendations and what's in the options, same be del eted 1, 23 prior to it going out. So that all that would be released 24 would~be the discussion and ~he overview of the issue, but 25 that the alternatives and the recommendations would be
6409.10.16 2]
jwb deleted.
- 2 3
4 MR. GOSSICK:
MR. PEDERSEN:
Is that the SECY paper?
NMSS.does not share that view.
1his is SECY's recommendetion.
NMSS says it should be 5 limited only to SECY papers*-- but the complete SECY 6 papers.
7 So there, you have the range of offices who 8 have commented on this paper and their views.
9 It ranges nll the way from OGC and their 10 supporters who want to let everyth.ing go in advance, all 11 the way over -- if I can describe 12 COMMJ SS !ONER KENNEDY' We have a di ffe rent range, 13 back behind you.
14 MR. RIVERBARKi I wanted to make one smell 15 calibration on SD;s comment. SD said they would release 16 the paper, but on the day of the meeting -- not the day 17 be fore --
18 MR. PEDERSEN: Sorry.
ii 9 MR. RIVERBARK: -- to eliminate any possible 20 pressure on people, early.
21 MR. PEDERSEN1 When we said "at ]east 24 hours2.777778e-4 days <br />0.00667 hours <br />3.968254e-5 weeks <br />9.132e-6 months <br /> 22 in advance II in the paper, we were very cagey about not 23 saYing when that clock necessarily started; 24 hours2.777778e-4 days <br />0.00667 hours <br />3.968254e-5 weeks <br />9.132e-6 months <br /> 24 be fore the meeting? or 24 hours2.777778e-4 days <br />0.00667 hours <br />3.968254e-5 weeks <br />9.132e-6 months <br /> before dawn?
25 MR. RIVERBARK: We feel that the paper helps the
I I 6469. 10."IJ 28 jwb person attending the meeting understand what's going on
- 2 3
4 in the meeting if he could pick it up at the back of the room, when he comes in, and follow it, that that would be sufficient.
5 MR. GOSSICK: I believe, also, NMSS indicated 6 that they didn't feel it necessary to just automatically 7 release the entire document, but that there were parts of 8 it, you know. that appear unnecessary.
9 COMMISSIONER GILINSKY: Woudn't those be IO automatically exclu::led by various exemptions? Certainly, 11 if it were classified it wouldn't be rele-.:1!:ed.
12 MR. GOSSI CK: I rea 11 y don'- t th ink that was 13 what they had in mind -- just as an example= a document 14 could be several hundred pages in length, and only two 15 or three pages of that document were pertinent to the 16 issues under discussion.
17 I think that what they were saying is= Let,s 18 just release whatever seems to make sense.
,19 COMMISSIONER GILINSKY: Are they talking about 20 11 the 11 SECY document being the subject of the meeting?
21 MR. GOSSICKg I think so.
22 MR. PEDERSEN= That's what he's talking about.
23 I just think that gets very complex, when you start having 24 to make judgments as to which 4 or 5 pagPs out of 50 we 25 discussed. I think these SECY papers fo.r_ -~-pen meetings
6469.10.18 29 jwb are prepared with an eye toward the fact that they will 2 be discussed. And I think that's taken into ccnsideration 3 when they're prepared.
4 I think that's a known fact, and I think it's 5 very unlikely that you'd find anything in there that would 6 cause embarrassment or harm.
7 MR. GOSSI CK: Sam, te 11 us about your --
8 MR. CHILK= I want to make a little difference 9 between what Ken said. You're going to release a SECY 10 paper. I don't think you've got much opticn, frankly.
ii 1 If it's going to be discussed at a meeting, everybody's
- 12 13 14 going to hear it. And I think the paper, and the contents of the paper, become automatically known whether you release the paper or not.
15 So I'm certainly not opposed to releasing SECY 16 papers that are discussed in open meetings. I would like 17 not to see us have to make an individual determination\
18 each and every time. I'd like to see us just agree to 19 the fact that SECY papers will go down.
20 I think that we should limit it to SECY papers, 21 simply because once you open the area of individual advice, 22 I think you're getting into some questionable and dangerous
- 23 24 25 afeas and you don't know where it's going to take you.
I think you ought .to have some experience, at least with limiting it to the SECY paper.
And
I 16469.10.19 30 jwb And my rationale is: that we ought to release 2 somet~ing in advance of the meeting to keep ~eople -- to 3 inform them, and let them follow the discussion a little 4 better. But rather than prepare a summary 1, or rather than 5 release a whole paper, I would just reJease the beginning 6 of the paper -- that is, the purpose, the subject, the 7 issues, the discussions, and that kind of thing -- before 8 the meeting, and release the entire paper afterwards.
9 I never intended to preclude the paper from 10 being released. I think it ought to be released.
ll COMMISSIONER GI LINSKY= Is it worth doing it?
- ,]2 13 14 Isn't that a lot of trouble?
MR. CHILK= It isn't an awful let of trouble.
All I've got to do is white something out.to make something 15 available. And I think the intent of the Act is to give 16 you something that wLll help people foJlow the discussion.
17 I don't think they ought to know what the 18 recommendations are, before you know and have a chance 19 to evaluate the recommendations. So I kind of limit it 20 to, you know, the first page and a half of the paper, and 21 this can be done administratively -- provide copies on the 22 back, put them down in the public documents room, make
- 23 24 25 them available so that people would know what the subject is, would understand how we got there -- but, you know, not be able to sta.rt questioning you on the rationale
6409.10.20 ~1 jwb be+/-ore you, your.se Jves, have had a chance to listen to and 2 discuss -- I think that's the basic difference.
3 One is kind of an administrative thing; the 4 other thing merely is that I'd like to make the decision 5 one time, and not have to make it each and every time. And 6 I think it ought to be limited to this kind of an area.
7 You're already far advanced 1, in comparison with 8 the practices of other agencies, but I don't think you 9 ought to get into these matters of individual advice. I
.JO don't think you ought to get into a matter of collateral II documents. I think it ought to be limited as to what 12 you're going to discuss. That's a 11. 1hat's what people 13 are here to see and to hear.
14 You give them enough of that so that they can 15 understand the discussion and follow it, in advancP, 16 release the thing, and that is it.
17 CHAIRMAN HENDRIE: Release the whole SECY paper?
18 MR. CHILI<: After the meeting is over.
19 CHAIRMAN HENDRIE: After the meeting is over.
20 MR. CHIU<: Because the public would have already 21 heard it. Th.ey would have already known about it.
22 MR. GOSSICK: Why wouldn't you make it ell 23 available the day be.fore? You know, the paper's been down;,
24 and they've seen the recommendations. I didn't quite 25 follow the rationale fur making it a two-step operation.
I 6469. IO .2 l 32 I
jwb MR. CHILKz I guess I don't see the public 2 knowing how the staff arrived at its rationale -- being 3 able to follow the staff's rationale, knowing what the 4 conclusions are before you and the staff have had an 5 opportunity to present your ideas of the conclusions in 6 the presentation.
.7 MR. GOSSICK: They don't know what those 8 recommendations are.
9 MR. CHILI<: That's right, and they don't know 10 what's going to come out of it.
11 I MR. PEDERSEN: I'm sorry, Sam. I didn't mean
- 12 13 14 to misrepresent you.
MR. CHILI<:
I just can't find that in your memo.
MR. PEDERSEN:
It's not.
Okay.
15 COMMISSIONER GILINSKY= Why would you do it at 16 the end of the meeting, rather than at the beginning?
17 MR. CHILK= Because the public would have heard 18 the entire discussion. They would have heard the 19 recommendations, they would have heard the rationale of 20 the staff, they would have,. hea.rd how the staff got to its 21 rationalei and once having heard .that, they might as well 22 re ad it.
- 23 24 25 COMMISSIONER GILINSKY: What is the harm with there being a stack of documents at the beginning of the meeting?
1646 9. ,JO
- 22 33 jwb MR
- CH I LK : I j us t thin k that p 1 aces th em i n 2 a position of knowing a little more, almost, than you do.
3 That's my basic concern. And the fact that J can do this 4 very easily, adminis.tratively.
5 COMMISSIONER GI LINSKY: Sometimes when we read 6 them --
7 COMMISSIONER KENNEDY: Some of us.
8 ( Laughter. )
9 MR. CHILK= I wasn't really thinking of it in
.10 that vein. But basically, if the thing went down there
.l I a day before --
12 COMMISSIONER GILINSKY= We'll be taking it on 13 the ch in.
14 MR. CHILI<: I think it ought to be placed down
,15 in the PDR, maybe the morning of the meeting, maybe the 16 day~before. I don't think people ought to be writing you 17 letters, calling you up and saying: Hey, I don't like this 18 rationale.
19 COMMISSIONER GILINSKY: Suppose you sort of 20 co ]lapsed the whole thing -- just put the whole th.ing in 21 the public documents room the day of the meeting, at the 22 beginning of the meeting?
23 MR. CHILI<: I don't have any objection to that.
24 I think it would be bene+/-icial if the people could look at a 25 document the day of, or the day before --- part of the
6469.10.23 34 jwb document -- _so that they could at least read and determine 2 what they're going to hear. I think it's a little different 3 to walk in there and be reading a 40-page document while 4 they are listening to a discussion of a 30-page document.
5 You know, I don't think 6 MR. PEDERSEN= You could do both. You could get
.7 a copy in the PDR 24 huurs in advance, and you could move it 8 over here, too.
9 I think', because of the difficuJties of JO predicting how many people you're going to have attending, 11 I and the size of some of these documents, I think you'd just 12 have to agree you'd do .10 copies, first-come, first-served, 13 or something -- unless you had reason to know it was going 14 to be a heavily attended meeting.
15 MR. CHILI<: That's a decision one can make 16 rather easily.
17 COMM! SSIONER KENNEDY: Ask for I 00 copies, and 18 burn the rest.
19 MR. PEDERSEN: That was what I was afraid of, 20 Commissioner.
21 CHAIRMAN HENDRIE= You know, the re are seve ra 1 22 variations. I am attracted to this one over here, but I
- 23 24 25 don't know that it would make a great deal of difference*--
between the full SECY paper available in the back of the room --
6469. 10.24 35 jwb COMMISSIONER GILINSKY: At the beginning of
- 2 3
4 the meeting.
CHAIRMAN HENDRIE: -- at the beginning of the meeting; and an abbreviated version, without the options 5 and recommendations, that could be available the day 6 before, or something like that, a day or two,before, 7 with the full paper - -:then going to the PDR subsequently.
8 I think there's a certain .rnier.fit: .., in the 9 Commission's ,~.:-~ having had a chance to hear the staff 10 put their arguments on paper before:there':s very wide spread 111 distribution of the paper.
12 And of course once that's done, of course it 13 would be a matter of record.
14 COMM! SSIONER BRADFORD: Ken*, what do you 15 contemplate using as the yardstick for the papers that 16 have been disc us se d? That is: We have a meeting on a 17 particular matter, and OPE submits a recommendation. It's 18 entirely possible that that recommendation could even be 19 discussed, and could even become the Commission's decision, 20 without it being si:ecifically acknowledged as being the 21 OPE recommendation.
22 How do you hand le that?
23 MR. PEDE:'RSEN= Commissioner:, I don't think it 24 would be easy. I think it would have to be a decision 25 worked out -- SECY would make an initial determination.
64,:)9.10.25 .'.:6 jwb They get all the papers that we do. Let me make it very 49 2 clear in this regard, though, that I could. very easily 3 live with Mr. Ch.ilk's recommendation.
4 Quite frankly, I saw my recommendation as sort 5 of going a step beyond where I would, in my heart of 6 hearts, like to go*.
7 I recognized. however, that there may be 8 ocrasions in a public meeting when a Commissioner may 9 pi ck up an OPE memo and make a lengthy reference to it.
10 And I merely wanted to indicate that I would not be l I completely averse to making that available on a
- 12 13 14 closed-meeting basis.
I think limiting it to SECY papers, exclusively, gives you a much more reasonable boundary to deal with --
15 a boundary group of papers -- and you don't have to make 16 those kinds of judgments.
17 My experience has been, however 1* that OPE papers, 18 when they're discussed, are usually fairly oi:enly identified, 19 and the Chairman will say: Okay, we have a paper here from 20 OPE. Ken, would you like to say something about it?
21 In very few cases are they dealt with in a very 22 subtle kind of way*. Now, the extent to which a Commissioner
- 23 24 25 may have read one of our papers and aJready had those ideas anyway, and so he voices them at the meeting, and may not even have _read the OPE papers just happened to come,
6409.J0.26 37 jwb independently, to the same decision, or the same set of conclusions, or something -- I honestly don't know how you 41 3 2
de a 1 with that.
4 I guess you'd have to say it .would have to be 5 identified by name, or some reference would have to be 6 made to it. Having come to the same conclusion, I don't 7 think, you could do that.
8 COMMISSIONER BRADFORD= The other question I had 9 about this confusing discussion at the meeting as a JO yardstick is3 I gather one of the concerns that you have I1 about making things available is, you know, in some way it 12 tends to stifle the range of advic.e that the Commission 41 13 might get?
14 MR. PEDERSEN= Yes, sir.
15 COMMISSIONER BRADFORD: And I wonder -- The 16 problem there, I should think, would be the JX)ssibility
,) .7 that it would become available. If the person writing the 18 memo doesn't know beforehand that it isn't going to be 19 available, then you have that problem.
20 MR. PEDERSEN= Yes, you do.
21 COMMISSIONER BRADFORD: He doesn't know when he's 22 writing it, or she doesn't know when she's writing it, that 23 it isn't going to be discussed.
4t 24 COMM! SSIONER KENNEDY: As this paper points out, 25 Peter, presumably the guy writing the SECY paper does know it.
6469.10.2] 38 jwb COMMISSIONER BRADFORD: That's right. But I'm
-- 4 2
3 talking about some of the alternatives.
COM MISS I ONER KENNEDY: Other offices have a 1 ways presumed that that wasn't the case; they're now free to be 5 as candid and as sharp-penned as they wish, to make certain 6 that we got that kind of advice.
7 MR. PEDERSEN: Let me indicate, Commissioner, 8 why I went the extra step.
9 As the legal analysis points out in here, if an 10 OPE paper is clear Jy identified at a public meeting and ii I discussed, the odds are very high -- it's an important 12 issue, or whatever, - at a well attended meeting, that 41 13 there will be an FOIA request for that paper.
14 There's almvst no basis -- according to OGC, 15 anyway -- for withholding that paper, once it's been the 16 subject of discussion at an open meeting.
17 Having heard that, and having already been 18 harassed aimost to death, I think, in.processing these 19 FO !As --
20 COMMISSIONER KENNEDY: I think that's probably 21 true as a practicaJ matter, not as a legal matter.
22 MR. PEDERSEN: I have to yield to the lawyers on 23 that, Commissioner.
4t 24 COMM! SSIONER KENNEDY: I read .their very valuable 25 opinion. That's how I came to that conclusion.
6469.10.28 39 jwb MR. PEDERSEN: If in fact a paper discussed at 2 an open meeting is difficult to preserve under FOIA -- if 3 that is a fact; if the lawyers happen to be right on this 4 one ---
5 (Laughter.)
6 MR. PEDERSEN: I was persuaded --
7 MR. SHAPAR: I think you may be speaking to two 8 points. I think you may be referring, on the one hand, to 9 the FOI A as it exi.sts as a statute; and on the other hand, JO to our regulations.
I I MR. PEDERSEN= How practically we;re 12 operationalizing, is what I meant, Howard. You're right.
4t 13 How, in fact, I have to deal with it on a day-to-day basis, 14 and the way we;re operationalizing: it is released*. And if 15 that's going to be the case every time one cf you holds up 16 a memo an o PE memo , or ma k e s a c l ea r ~ re f ere n c e to i t 17 I'm going to have to release it under FOIA.
18 It might be just easier to go ahead and put it 19 in the pub lie document r.oom. But you're quite right: It 20 does affect how my staff wiJl write memos, and I would not 21 te Jl you otherwise
- 22 MR. SHAPAR: Some of your papers are intended for 41 23 the staff paper, are they not? So you control the situation, 24 to some extent -- I'm not saying this critically -- by 25 deciding whether or not you append it to the SECY paper, and
[6469.10.29 40 I jwb the rasults would be different.
I CHAIRMAN HENDRIE: I think that depends more on I
I 41 2 3 the timing. If it's a timely staff draft, then after the I
I 4 timely OPE comment on the staff draft it goes back out to I 5 the proprietors of the paper and the staff 1, who take it I
I 6 into account, who append it, and who make whatever rebuttal 7 or adjustment is appropriate. In that case', then the whole 8 thing comes down.
9 The more normal sequencs, I must say, is that JO there gets to be a shortage of time and people to work on 11 it -- one paper or the other -- and they come separately, 12 and often at the last minute.
41 13 MR. PEDERSEN= The majority of papers, 14 Mr. Chairman, we see simultaneously with ycu.
15 CHAIRMAN HENDRI Es Excuses, excuses*, excuses.
16 MR. PEDERSEN: I'm sorry.
17 CHAIRMAN HENDRIE: In a shop as leaky as this 18 one --
19 MR. PEDf:RSENs -- you should know weeks beforehand 20 what's going on.
21 To do that, Mr. Chairman, I wou]d have to have 22 an intelligence network, and I wouldn't think of having 23 such a network.
41 24 COMM! SSIONER KENNEDY= Why not? Everybody else 25 has one.
I 6469. IO. 30 41 jwb CHAIRMAN HENDRIE= It would only take two or 2 three extra .slots.
41 3 C Laughter.)
4 COMM! SSIONER BRADFORD: Ken, if I understood you 5 a moment ago, you said that most of the OPE memoranda must 6 now be prepared in contemplation of possible or probable 7 release?
8 MR. PEDERSEN: Commissioner, I say that I don't 9 think, quite frankly, we have until now prepared it with 10 that in mind.
11 We have received a volume of FOIA requests 12 lately that have touched OPE memos, and I have released it 1.3 numerous - - quite frankly -- memoranda in recent weeks and 14 months that I probably would not have released 9 or 10 months 15 ago.
16 I just think, operationally*, how we're doing it L7 in this agency, now, is different.
18 COMM! SSIONER KENNEDY: How did we arrive at that?
19 MR. PEDERSEN: Most of these have been on appeal, 20 Commissioner, and the rules of the Commission now say that 21 they must go to OGC on appea 1.
22 I make an initial finding on the appeal, and the 23 OGC tells me whether they believe that's legally sound. OGC 24 has lately baen urging me to release virtually everything.
25 I have not done so. In fact, a paper's on your desk right
_____ _J
6469. IO. 31 42 jwb indicating a strong conflict with C~C-OPE on whether 2 some sa feguard~re 1 ate_d pap er s should. be released. But 3 clearly, the advice I'm getting from OGC on appeals is 4 to release almost everything.
5 MR. SHAPAR: Doesn't OGC advise you as to 6 whether or not it's withholdable under one of the
] categories? Don't you make the decisions as to whether 8 or not it was a poJicy matter and ought to be released?
9 MR. PEDERSENz That is correct. They tell me 10 that it should be released, and they also make judgments
,11 whether if, in their opinion, the public interes.t is
- 12 13 14 thereby served.
I, in turn, have the right to say:
think the public interest has been served.
I do not However, I 15 would say thiss That when every paper that you ever 16 refused in the first go-round, for whatever reasons you 17 considered to be good .ones, comes up on appeal', and the 18 office of general counsel tells you, consistently, they 19 should all be released, it gets somewhat difficult.
20 And I have continued to not release those that, 21 in my honest judgment, I would. fee 1 would net serve the 22 public interest. But it is difficult, and I think the
- 23 24 25 Commission is going to have to deal with this.
In fact', it's on your desk right now in the context of one issue.
6469. IO .32 43 jwb CHAIRMAN HENDRIE= Let's see. c*
~-1nce the 2 afternoon goes on apace, I find the issue sufficiently 3 complex, and the discussion far enough ranging', th at I 4 don't have my customary sense of the Commission's 5 gathering on some point that a decision can be made.
6 I don't know. Am I wrong?
7 COMM! SSIONER BRADFORD: Does it make sen.se to 8 think in terms -- maybe it doesn't -- but it did seem as 9 though there was a certain minimum level that we could
.) 0 agree to, along the lines of SECY papers?
JI I think there are other serious issues involved
- 12 13 14
.with some of the other papers. I guess I don't need to pursue. them, now, because we're going to be coming back to them, in one context or another.
15 CHAIRMAN HENDRIE= That's a pos sibi 11 ty*. A lot 16 of people feel', sort of .the minimum posi ti en, I think --
17 COMMISSIONER KENNEDY: I'm not going to state 18 a 11 minimum position." I'm going to state my position, when 19 asked.
20 CHAIRMAN HENDRIE= I realized, when I said 21 "minimum position,* 11 that it would going to turn out to be 22 unfortunate.
- 23 24 25 "A" position has been suggested by Sam --
COMMISSIONER KENNEDY= My position -- to be described in any way you choose -- is simply that= SECY
_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ ____JI
6469. 10. 33 44 jwb pa per s, less the recommendations of the st a ff, should be 2 made available at the door the day of the meeting. And 3 that, at least, wi Jl be in tune with the Ccngress.
4 That's a splendid place to be, because they've 5 be en wanting to open the meetings. to open hearings, for Q 200 years. and I think they've done very well, and indeed 7 instru.cted us in this regard.
8 We're already about 4000 miles cut in front of 9 everybody else in. town 9 and I realize that that's desirable.
10 But I,m not altogether sure that all the aspects of the 11 vanguard are necessarily desirable. In some of them, we'd
- 12 13 14 be exposed COMMISSIONER GILINSKY:
what it is we're commenting on?
Could I just understand 15 COMMISSIONER KENNEDY: Only the recommendation 16 COMMISSIONER GILINSKY= The last paragraph~
1.7 COMMISSIONER KENNEDY: "The staff recommends, 18 therefore, that you choose Option 27." Everything else --
19 including all the analysis, the laying out of the options, 20 the analysis of the options -- everything is there 1, except 21 what the staff itself recommends. They,11 tell us that at 22 the meeting, but they will do that then in the context of an
- 23 24 25 explanation as to how they arrived at that and what their own balancing of factors is, and indeed after some discussion with the commission.
I I 6469
- lO
- 34 45 jwb COMMISSIONER GI LINSKY: But I don't see how
- 2 3
4 much is gained by withholding the other three factors from discussion at the meeting.
CHAIRMAN HEl~DRI E: SECY goes on and says 11 a ft er 5 th e me e t in g
- 11 6 COMMISSIONER GILINSKY= I didn't understand.
7 COMMISSIONER KENNEDY: Only that sometimes -- in 8 my recollection - I wish I could put my hand on it -- that 9 we've had a paper, and as the discussion has gone on, before 10 the discussion has really concluded, the staff's 11 recommendation is not quite the same as it says in the 12 pa per.
13 If there's anything predecisional in the thing, 14 it seems to me that's really it. The-rest of it is 15 analytical, or whatever you want -- it's leying out the 16 issues, and trying to describe the range of considerations 17 that we ought to take into account -- but recommendations 18 by the staff, agencies involved, it seems to me is 19 predacisional advice. The rest of it is just sort of 20 s:..aff support.
21 And I think predecisional advice is something 22 that the Congress, and indeed the courts, have recognized 23 as being properly withholding. And I think of caution of 24 counsel in this regard -- if they haven't, I would be glad 25 to do so, myself. I think predecisional advice ought to
l 6469.10.35 46 jwb be maintained. And in those papers, that's all I think
- 2 3
4 th ere is.
CHAIRMAN HENDRIE: V'Jou ld you go ahead then'.
after the meeting, with the full SECY paper?
5 COMMISSIONER KENNEDY: No, I woul dn "'t.
6 CHAIRMAN HENDRIE: That was*, however, what Sam 7 was saying.
8 COMMISSIONER GILINSKY: As a practical matter, 9 I think --
.10 COMMISSIONER KENNEDY: Jt wouldn't make any 11 difference.
112 COMMISSIONER GILINSKY: -- the SECY papers would 13 just have a somewhat different format. You'd be releasing 14 the new SECY papers.
15 COMMISSIONER KENNEDY: You'd be r.eleasing the 16 SECY paper, which is the whole analytical reasQ"ling. There'd 17 just be another page in the back some place which would 18 contain the recommendations.
19 COMMISSIONER GI LINSKY: Is your point: to avoid 20 locking them into a position?
21 COMMISSIONER KENNEDY: Yes, in part.
22 COMMISSIONER GILINSKY= Because when you say it"s 23 "predecisional , 11 it's really, perhaps, minutes bet.ore we may 24 hear it.
25 COMM! SSIONER KENNEDY: Or, hours.
I I
~--~----------- ---* -*- ---------- _______ _j
i 6409.10.36 47 I
jwb (Laughter.)
2 COMMISSIONER BRADFORD: But the format is almost 3 always such that you will ask for a staff summary. The 4 staff then orally presents the same recommendation they 5 ma de in the pa per.
6 COMMISSIONER KENNEDY: Right.
7 COMMISSIONER BRADFORD: So --
8 COMMISSIONER KENNEDY= That's my point, Peter.
9 If it was always exactly as it is in the paper; right. But 10 I think we can easily go back and find a variety of l l circumstances -- a numb er of them -- you know, not so few 12 as to be really rare exceptions in which the s.taff 1, either 13 between the time the paper was actually put up here before 14 us and the time of the meeting, or in the process of the 15 meeting itself, has modified that view somewhat.
16 It seems to me they ought to have that opportunity I l .7 to do so.
18 COMMISSIONER GILINSKY= But the question is: Will 19 they be constrained to modify it if it were public?
20 COMMISSIONER KENNEDY: I don't know. I am 21 conc9rned about any ear lier release, for the very reason 22 that the paper suggests.
- 23 24 25 I think that even the day.before can subject the staff, and .. perhaps even the Commission, to unwarranted and, in my humble judgment, undesirable pressures.
__J
6469.10.37 48 jwb COMMISSIONER GI LINSKY: I wouldn"t do it at the
- 2 3
4 beginning of the meeting, because meetings are, in fact, canceled.
CHAIRMAN HENDRIE= If the meeting doesn~t go off, 5 then the paper doesn't go out.
6 COMMISSIONER GI LINSKY= If you did it beforehand, 7 you wouldn't have that opt ion.
8 CHAIRMAN HENDRIE= But you wouldn't want the 9 wh o le pa pe r th ere
- 10 COMMISSIONER GILINSKY= I recognize his problem.
,11 COMMISSIONER KENNEDY: It's not a big thing. I 12 just suggest that for consideration. I'm most concerned 13 I have not yet got ten to the OPE, OGC prob J em, which is a 14 different one.
,15 There, I'm quite concerned that we have 16 considered them as', in a sense , adjuncts of our own
,17 offices. And that was my recollection of the rationale 18 which we used in creating those offices, ,in_,both of those 19 instances.
20 Now to, in a sense, back away from that:, raises 21 a iot of other questions I think we ought to think about.
I 22 It's not just simply the release of these particular papers I I
23 that's involved; it's the whole syndrome of the relationship I
24 we ought to th ink about. And I-'m not sure we've thought that I I
25 through -- about what the implications of the re leasing of I
I I
I I
I
____________________________J
6469.10.38 49 jwb the paper may be.
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4 CHAIRMAN HENDRIE=
the following to you:
Let's see. Let me propose I do think we're still a distance apart*, even 5 on some fLrst step; and that some further discussion will 6 be useful, and we ought to reschedule it.
7 I think it would be useful for the proprietary --
8 COMMISSIONER KENNEDY: We*'re going to have to do 9 ~hat either this week, or next. ~e've got to do .that very 10 quickly, then, if we're going to reschedule it.
.I I I will be away, and I understand that you will 12 be away.
13 CHAIRMAN HENDRIE= Well, our momentary absence 14 wiJl not be the end of things.
15 COMMISSIONER KENNEDY= My absence will be somewhat
,J6 more than "momentary," and I have a distinct and definite 17 interest in the matter and I'm prepared to make decisions 18 now. B.ecause I think I've sensed that my colleagues would 1, 19 at least to an extent 20 CHAIRMAN HEhDRIE: We're not going to make it 21 this afternoon, and there are some problems with scheduling 22 it this week.
23 COMMISSIONER GILINSKY: Are we doing it on the 24 SECY papers themselves?
25 CHAIRMAN HENDRIE: I don-'t -- I ;d be glad to vote
______________________________________________ J
6469. IO .39 50 jwb for your proposal, or Sam's proposal --
- 2 3
4 the same.
COMMISSIONER KENNEDY:
COMMISSIONER GILINSKY:
I thought they were al J What was Peter's?
5 COMMISSIONER BRADFORD= I didn't remember making 6 a proposal. I thought all I said was: that, as we did. seem 7 to have in common a willingness to make the SECY papers 8 available, there was sume question over whether or not 9 the recommendation should be proposed -- that was about all.
JO I would be willing to make that recommendation.
.11 CHAIRMAN HENDRIE= I think that"s useful. I 12 think there*'s a certain distinction there.
13 What I'm suggesting is that we come back to this 14 subject, and the proprietors of the recommendations should 15 focus a little bit on the following proposition:
16 It seems to me that it may be use+/-ul to step a I J little tentatively into this area, rather than sort of 18 "everything out weeks before", that you might want to 19 consider the usefulness of trying to agree on something 20 more limited -- perhaps the SECY papers, as has been 21 suggested, either full paper available just at the door as 22 you come to the meeting, or a version -- without
,~ 23 24 25 recommendations, and alternatives, and so on -- available that morning, or even the day before, as a first step.
And then, perhaps if we find that that does not
6469.10.40 51 jwb seem to be a particular problem in the operation of the Commission, contemplate it some more.
9t 2 3 I think, if you want to hear a few words about 4 a subject of interest to some of us this afternoon', why we 5 need to stop now and turn to that other matter.
6 And I just don't see the other remaining 7 I 5 minutes to an hour to get res o 1 ve d on whi ch of the s e 8 possible options that we might consider implementing is 9 the right time to do it -- just half an hour or an hour
,10 oft of that.
11 I don't see strong disagreements among us, but
-~ 12 th re are some things that we need to sort out but we 0
13 just don't have the time -- unless you want to cancel the 14 next meeting.
15 Any further comments or instructions that we might 16 le ave the staff with?
17 COMMISSIONER BRADFORD: Just one thought. We do 18 often hear advanced the argument against disclosure, for 19 this sort of thing'. that it would have sort of a chi 11 ing 20 effect on the staff's advisory opinions.
21 I wonder if. when we do come back for further 22 discussion I don't know that any further papers are 23 contemplated, or necessary -- but I'd like to spend a little It 24 time on just how that works out, specifically. Whether we 25 really are, at this point, in a situation at which those
6469. 10 .4 1 52 jwb papers are written with an eye toward at least the 2 possibility that they're going to be discoverable, or 3 releasable in any case; or whether we stilJ are getting 4 a lot Of stuff, at the Commission level, which in some way 5 would be changed, and 1 ike ly that it would become public.
6 CHAIRMAN HENDRIE= Very good
- 7 Sam, you said your memo was .attached to their 8 pa per? It didn't cover all the points you made?
9 MR. CHILI<: I think so, with one possible 10 except ion.
11 CHAIRMAN HENDRIE: ~~e 11, you' J 1 get a chance to 12 touch it up here for us.
It 13 All right 14 MR. PEDERSEN= Mr. Chairman, could I just ask:
15 Are you contemplating another paper?
16 CHAIRMAN HENDRIE: I don't feel a strong need for 17 one. I see --
18 COMM! SSIONER KENNEDY: V~e 've got more paper__s than 19 I want, now.
20 CHAIRMAN HEi,JORIE: -- I see almost determined 21 shaking of the heads around the table. I would interpret 22 that to mean that you would submit another paper at your 23 pe ri 1.
fl 24 MR. PEDERSEN: Advice I willingly take.
25 CHAIRMAN HENDRIE= But the sorts of discussion
~
I 6469. IO. 42 53 jwb items that we've had in mind, just come ready to talk about
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4 those.
And you can also start out that next meeting with a brief summary.
5 I would like, now, to allow the Commission a 6 minute and a half break, after which we wiJl gather in 7 closed meeting for a briefing on an OIA report.
8 (Whereupon, at 3:05 p.m., the hearing was 9 adjourned to go into closed session.)
JO
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