ML20148T445

Comments on FOIA Appeal of K Gaynor for Records Re NRCs Pwr Reactor Safeguards Rule 10CFR78.55.Recommends Auth of Nrcsey to Dispatch Reply Which Would Withhold Portions of Only Three Documents

ML20148T445
Person / Time
Issue date:	10/24/1978
From:	Kelley J NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD)
To:
References
SECY-78-007C, SECY-78-7C, NUDOCS 7812050121
Download: ML20148T445 (10)

Text

1

.I 0ctober 24, 1978 uniteo svaras SECY '78-7C NUCLEAR REGULATORV COMMISSION ADJUDICATORY ITE_M CONSENT CALENDAR ITEM.

l T_o:

The Commissioners i

From:

James L. Kelley l

Acting General Counsel 1

Subject:

FOIA APPEAL OF KEVIN GAYNOR FOR RECORDS RELATING TO THE COMMISSION'S POWER REACTOR SAFEGUARDS RULE (10 CFR 73.55)

Purcose:

To obtain Commission approval to release records to Kevin Gaynor under the FOIA and finally resolve the FOIA appeal.

e Discussion:

Background --

At issue in this FOIA appeal are fifteen OGC and OPE memoranda which discuss the Commission's power reactor safeguards rule adopted in February 1977 (List of Documents, Attachment 1).

These records were withheld by OGC and OPE from Mr. Gaynor in response to the initial FOIA reques;.

Mr. Gaynor appealed to the Commission.1/

In this appeal, OGC concluded that most of the records were legally exempt from disclosure but recommended that the Commission release the memoranda because, in OGC's opinion, disclosure would be in the public interest.

OPE disagreed as 1/

/

The background of the appeal and Commission action on it is set forth in greater detail in earlier Commission papers (SECY-A-78-7, SECY-A-73-7A, and SECY-A-78-7E).

Contact:

Mark E.

Chopko 63 41465 7812050/Z/

2 e

to the OPE memoranda, believing that dis-closure was not in the public interest.

The Commission divided two to two -- the Chairman and Commissioner Kennedy indi-cated approval of OPE's more limited proposed disclosure and Commissioners G111nsky and Bradford indicated approval of OGC's recommendations.

Subsequently, both OGC and OPE recommended disclosure of OGC documents and several OPE documents, and withholding other OPE records.

The Commission again divided.

Commissioner Bradford proposed release of all memo-randa or portions thereof which all agreed to disclose, and deferral of action as to the remaining material until a fifth Com-missioner assumed office.

The Commission approved and one document was released in whole and eight were released in part (Letter to Gaynor, Attachment 2).

Com-4 missioner Ahearne's appointment means that the matter can now be resubmitted for action by the Commission.

At this time, OPE has concurred with the OGC recommendation that these documents should be disclosed, and no dispute exists between the offices concerning the recommendations for release of the documents.

Analysic --

The primary basis for withholding these materials has been exemption 5 of the FOIA, 5 U.S.C.

552(b)(5), which exempts from mandatory disclosure intraagency memoranda which would be unavailable to a litigant in discovery against the agency.

The exemption gives agencies the discretion to withhold internal documents the disclosure of which would expose the agency's deliberative process in such a manner that the process would be adversely affected, hence diminishing the quality of agency decisions.

See Mead Central Data, Inc.

v.

Department of l

3 the Air Force, 566 F.2d 142 (D.C. Cir.

1977).

On May 5, 1977, Attorney General Bell wrote a letter to the heads of agencies and departments indicating that exemption 5 should be used sparingly and only when disclosure would actually harm agency processes.

FOIA Sourcebook, Department of Justice Short Guide to the FOIA (February 1978).

OGC believes that the deliberative process of the agency would not be adversely affected through disclosure.

The standard by which OGC has made its decision is whether disclosure would tend to have a chilling effect on the candor and completeness of future com-munications between the Commission and its principal staff offices.

OPE agrees that that is the applicable standard and continues to believe that release of these documents will affect its ability to provide candid predecisional advice and opinion to the Commission.

However, because of the passage of some two yearE and the final promulgation of the upgrade rule discussed in these documents, OPE agrees its documents can now be released as a matter of public interest.

OGC believes that any inhibiting effect would be more than offset by the public interest in understanding and clarifying the context of NRC rules.

Both OPE and 000 do agree at this time that the documents in this case should be dis-closed (with three narrow exceptions).

No dispute exists concerning the final disposition of the documents.

The Commission is therefore not resolving any difference between OPE and OGC.

In this appeal, however, the Commission has 3

never voted formally to withhold certain portions of three documents (Attachment 3).

In order to finally resolve Mr. Gaynor's appeal, the Commission must not only vote to withhold that material but also affirm

4 the release of the remaining documents that had been at issue between OPE and 000.

Scheduling:

As an affirmation item at an open meeting.

(Note -- the final disposition of the Gaynor appeal requires an affirmation vote by the Commission because portions of three documents will be withheld from the requestor.)

Recommendation:

Authorizc the Secretary to dispatch the OGC proposed reply (Attachment 4), which would withhold portions of only three documents.

James L. Kelley Acting General Counsel Attachments:

1.

List of Documents 2.

Letter -- July 6, 1978 l

on FOIA Appeal l

3 Portions of Documents to be Withheld i

4 Draft response to l

Mr. Gaynor Commissioners' comments or consent should be provided directly to the Office of the Secretary by c.o.b. November 6,1978.

Commission Staff Office comments, if any, should be submitted to the Commissioners NLT October 31, 1979, with an information copy to the Office of the Secretary.

If the paper is of such a nature that it requires additional time for analytical review and comment, the Commissioners and the Secretariat should be apprised of when comments may be expected.

This paper is tentatively scheduled for affirmation at an Open Meeting during the Week of November 13, 1978.

Please refer to the appropriate Weekly Commission Schedule, when published, for a specifir. date and time.

DISTRIBUTION:

Commissioners Commission Staff Offices

__ Secretariat ___

ATTACHMENT 1 DOCUMENTS 1.

January ll, 1977 Memo for B. Huberman, Director, Office of Policy Evaluation, from C.W.

Reamer, Attorney, Office of the General Counsel 2.

December 20, 1976 Memo for Chairman Rowden, et al.,

from P.L. Strauss, General Counsel 3

October 18, 1976 Handwritten note to P.L.

Strauss from C.W.

Reamer 4

August 17, 1976 Memo for T.A. Rehm, Assistant to the Executive Director for Operations from P.L. Strauss 5.

March 4, 1976 Memo for T.A. Rehm from B. Huberman

Subject:

Draft Papers on Physical Protection of Nuclear Power Reactors from Industrial Sabotage (10 CFR 73) and Clarification of S 73 50 6.

May 27, 1976 Memo for Chairman Rowden from B. Huberman

Subject:

Proposed S 73.55 - Physical Protection for Power Reactors SECY-76-242 7.

November 8, 1976 Memo for Chairman Rowden from B.

Huberman --

Subject:

Physical Protection for l

Power Reactors (73.55)

SECY-76-242C 8.

December 8, l'976, Memo for H. Thompson, et al.,

Technical Assistant to Chairman Rowden, from B.

Snyder, Office of Policy Evaluation --

Subject:

Design Basis Threat for Power Reactor Safeguards (Proposed S 73.55) 9.

January 12, 1977 Memo for Chairman Rowden from B. Huberman --

Subject:

Physical Protection for Reactors (73 55) 10.

January 26, 1977 Memo for Chairman Rowden from B. Huberman --

Subject:

Physical Protection of Reactors Against Sabotage of Insiders 11.

February 4, 1977 Memo for Chairman Rowden from B. Huberman --

Subject:

Reactor Physical Protection Rule 73.55 - Design Basis Threat Information/ Response Force Requirements

)

12.

February lo, 1977 Memo for Chairman Rowden from B. Huberman --

Subject:

Proposed Commission Action on Reactor Physical Protection Rule (New 73 55) and Proposed Memorandum on Fuel Facilities and GESMO.

o

,. DOCUMENTS (continued) 13.

May 20, 1977 Memo for Chairman Rowden from K. Pedersen, Office of Policy Evaluation --

Subject:

Implementation of Reactor Physical Security Rule (10 CFR 73.55) 14 December 15, 1976 Memo for Chairman Rowden from B. Huberman --

Subject:

Physical Protection Rules f

for Power Reactors - Proposed Part 73 55 15.

February 9, 1977 Memo for R.

Satterfield, S. Spector,

,/

and J.

Austin, Office of the Commissioners, and C. Ong,

/

Office of Policy Evauation -- Subj ect :

Minimum Safe-guards Force Sizes

/

=

These documents are uttached to SECY-78-7 (February 22, 1978).

l l

fi NUCLEAP '. GULATORY COMMISSION

((

(((

WASHWGTON, D. C. 20555 ATTACHMENT 2

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July 6, 1978

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OFFICE OF THE SECRETARY Kevin A. Gaynor, Esq.

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Nixon, Hargrave Devans & Doyle Suite 701 1666 K Street, N.W.

Washington, DC 20006

Dear Mr. Gaynor:

This responds to your appeal from a partial denial (FOIA-77-239) of your request under the Freedom of Information Act for certain records relating to Commission regulations covering nuclear power reactor safeguards (10 CFR S 73.55).

Specifically, your appeal addressed the documents that are listed in Attachment 1.

After reviewing the records you have requested, the Commission has decided to release some of the records listed in Attachment 1, at least in part.

Document 4 is being disclosed in full.

Partial disclosure of documents 1 (two paragraphs deleted), 3 (two paragraphs deleted), 5 (one paragraph deleted), 6 (attachment deleted), 7 (two paragraphs and attachment deleted),11 (all but two paragraphs deleted; attachment deleted),12 (attachment deleted), and 14 (attachment deleted) is being made.

These records are enclosed herewith.

As to the remaining memoranda, or portions thereof, in Attachment 1, the Conmission is evenly divided on whether to release or withhold the documents.

Being thus unable to act on your appeal in its entirety at this time, the Cormission has elected to defer action on the remaining memoranda until such time as a fif th Commissioner is appointed by the President and with the advice and consent of the Senate and can familiarize himself with this matter.

S(ncerely,,

l

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/c h

/ Samuel J. Clith

')

1. Secretary of the Commission

Enclosures:

1.

Documents as Listed in Attachment

- e,,,y, s

2.

Documents being released

, ' ~

ATTACHMENT 3 r

PORTIONS OF DOCUMENTS TO BE WITHHELD l'

Document 1:

January 11, 1977 Memo for B. Huberman from C.W.

Reamer Two portions were not released, both dealing with the design threat for fuel cycle facilities and also containing charac-terizations of other internal offices.

Disclosure would hinder the exchange of such views in the future.

Since no formal action was taken with regard to withholding these portions, the Commission must vote to withhold them.

Exemp-tion 5 is claimed.

7 Document 3:

October 13, 1976 Handwritten Note to P.

Strauss from C.W.

Reamer This document was largely disclosed except for the last para-graph on pages 5 and 6.

As in Document 1, this paragraph contains adverse characterizations of an internal NRC office and its disclosure would inhibit such discussion in the future.

Document 11:

February 4, 1977 Memo for Chairman Rowden from B. Huberman -- Reactor Physical Pro-tection Rule 73.55 - Design Basis Threat Information/ Response Force Requirements" This document is classified " Confidential - NSI".

Unclassi-fled information contained therein was released.

The offices agree the balance, which contains classified inforamtion, should be withheld under Exempvion 1 and recommend the Commission so vote.

Both OPE and 000 recommend that the remaining documents be released in whole; no Commission vote is necessary for that action:

Documents 2, 8, 9, lo, 13 and 15 in whole; and portions of Documents 5, 6, 7, 12 and 14 (which had been partially released).

,p""'G6<,h, UNITED STATES NUCLEAR REGULATORY COWIMISSION f

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WASHINGTON, D, C. 20555

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/

OFFICE OF THE SECRETARY e

Kevin A. Gaynor, Esq.

Nixon, Hargrave Devans

& Doyle Suite 701 1666 K Street, N.W.

Washington, D. C.

20006

Dear Mr. Gaynor:

This letter is a final Commission determination on your appeal under the Freedom of Information Act for certain records relating to Commission regulations covering nuclear power reactor safeguards (10 CFR 5 73.55).

m Specifically, your appeal addressed the documents that are listed in attachment A.

On July 6,1978, the Commission responded to your appeal in part by releasing one document in full and eight documents in part.

At that time the Commission was unable to decide on further release or with-holding of the remaining materials.

Exemption 5 of the F0IA, 5 U.S.C.

5 552(b)(5), applies to all of the docu.nents withheld initially.

Nevertheless, the Commission has decided to release most of the records listed in attachment A, at least in part.

Referring to the list in attachment A, two paragraphs of document #1 and one paragraph of document #3 have been deleted from the disclosed b

~

Kevin A. Gaynor, Esq. documents.

These withheld portions contain advice and opinion the dis-closure of which would impede free and frank discussion between internal Commission offices on matters pending before the Commission.

Disclosure would not be in the public interest since it would adversely affect the quality of agency decisionmaking.

These portions, therefore, are being withheld pursuant to exemption 5 of the FOIA, 5 U.S.C. 5 552(b)(5), and 10 CFR 5 9.5(a)(5).

Only two paragraphs on page 3 of document #11 have been disclosed.

The withheld portions of document #11 contain infor-mation classified under Executive Order No.11652, and they are being withheld pursuant to exemption 1 of the F0IA, 5 U.S.C. 5 552(b)(1),

and 10 CFR 5 9.5(a)(1).

The balance of the materials at issue in this appeal are being released.

The above determination has been made by the Commission and constitutes final agency action on your appeal for the request for records.

10 CFR 55 9.11, 9.15.

Judicial review of this action is available in a district court of the United States in the district in which the requestor resides, or has his principal place of business, or in the District of Columbia.

Sincerely, Samuel J. Chilk Secretary Attachments as stated

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