IA-98-121, Responds to 980803 Ltr Appealing Partial Response Dtd 980708 from R Powell for Documents Relating to Issue of Commissioner Attendance & Conduct of Emergency Preparedness Training.Appeal Partially Granted & Partially Denied
| ML20155K478 | |
| Person / Time | |
|---|---|
| Issue date: | 11/03/1998 |
| From: | Hoyle J NRC OFFICE OF THE SECRETARY (SECY) |
| To: | Ryan M AFFILIATION NOT ASSIGNED |
| Shared Package | |
| ML20155K482 | List: |
| References | |
| FOIA-98-121, FOIA-98-A-17 NUDOCS 9811130262 | |
| Download: ML20155K478 (3) | |
Text
._
l l
- t l "[c vtag UNITED STATES y , NUCLEAR REGULATORY COMMISSION r g WASHINGTON, D.C. 20555-0001
, ee 'y
\.. ..
p8 OFFICE OF THE November 3,1998 SECRETARY IN RESPONSE REFER TO FOIA-98-A-017 FOIA - (98-121)
Margaret L. Ryan, Chief Editor Nucleonics Week The McGraw-Hill Companies 122 G Street, NW Washington, DC 20005-3802
Dear Ms. Ryan:
I am responding to your letter of August 3,1998, in which you appealed the partial response dated July 8,1998, from Russell Powell of the U.S. Nuclear Regulatory Commission (NRC) to -
your Freedom of Information Act (FOIA) request (FO!A 98-121) for documents relating to the issue of Commissioner attendance and conduct of emergency preparedness training. Mr.
Powell's responso denied the release of ten (10) records and portions of nine (9) additional records that were responsive to your March 16,1998, FOIA request.
Acting on your appeal, I have carefully reviewed the record in this case and have determined that some additionalinformation can now be made available. Accordingly, your appeal is partially granted and partially denied.
Additional information that was previously withheld in the records identified in Appendices E and F can now be released. The decision to allow these additional disclosures is made as a matter of administrative discretion and is in no way intended to waive any claim of exemption privileges that NRC may invoke in the future to deny access to similar documents or information. The }c1p7f remainder of these records will continue to be withheld from public disclosure pursuant to Exemption 5 of the FOIA (5 U.S.C. 552 (b) (5) ) and 10 C.F.R. 9.17 (a)(5) of the Commission's regulations. Copies of the releasable portions of these records are enclosed.
The purposes of the Exemption 5 deliberative process privilege are to encourage open, frank discussions on matters of policy between subordinates and superiors; to protect against premature disclosure of proposed policies before they are finally adopted; and to protect against public confusion that might result from disclosure of reasons and rationales that were not in fact I ultimately the grounds for an agency's action. Thompson. Il v. Dept. of Navy, No.95-347, 1997 WL 527344 (D.D.C. August 18,1997); Russell v. Dept. of Air Force,682 F. 2d 1045 l (D.C. Cir.1982). The information withheld under Exemption 5 consists of predecisional proposals, advisory opinions, and recommendations from the staff to the Commission. Release -
of this information would tend to inhibit the open and frank expression of ideas essential to the deliberative process Accordingly, since certain records and portions of records are being properly withheld under FOIA Exemption 5, a discussion of FOIA Exemption 2 is not warranted.
r l
9811130262 981103 PDR FOIA RYAN98-A-17 PDR
- [t /// 7. M 6 A
M. Ryan 2 Your letter states that the agency's invocation of FOlA Exemption 5 (which protects the deliberative process) was misapplied because ". . . the material relates to a debate on commission policy which the FOIA and the Sunshine Act both contemplate will take place in public forums, or at a minimum be disclosed to the public." This statement appears to reflect some misunderstanding of the policies underlying the two cited statutes, which proceed from two different bases. The FOIA relates only to documents; it neither makes nor implies any judgment as to matters which should or should not be discussed in (a) public forums, (b) in private discussions, or (c) by exchange of written views. Moreover, the FOIA's express protection of Exemption 5 safeguards the deliberative process. Conversely, the Sunshine Act requires that when an agency has a " meeting" to discuss agency business, and a quorum of members is present, the meeting should be public unless certain specific exemptions apply. ;
l ( 5 U.S.C. 552b (a), (b) and 10 C.F.R. 9.101 (c) of the Commission's regulations). Thus, the purpose of the Sunshine Act is to expose the deliberative process to public view when -
deliberations take place in a " meeting,"in sharp contrast to the FOIA, which expresses a policy judgment that some aspects of the deliberative process are appropriately withheld from public .
view. If there is no " meeting," and in the present case no such " meeting" occurred for the issue '
of Commissioner attendance and conduct of emergency preparedness training, then the l Sunshine Act is inapplicable. Rag. Federal Communications Commission v. ITT World l
Communications. Inc.,466 U.S. 463 (1984). 1 l
Another privilege incorporated into Exemption 5 is the Attorney-Client Privilege. This privilege l protects confidential communications between an attorney and his client relating to a legal l
matter for which the client has sought professional advice. This privilege applies to facts divulged to the attorney, and extends to any opinions given by the attorney based upon these facts. For your concern involving the assertion of attorney client privilege, only three documents were protected by the Attorney-Client Privilege. These are: (1) Memorandum to the Chairman from the NRC General Counsel under item 8 of Appendix E of the July 8,1998, FOIA Response;
- (2) Memorandum to the Chairman from the NRC General Counsel under item 3 of Appendix F of the July 8,1998, FOIA Response; and (3) Draft Memorandum to the Chairman from the NRC l General Counsel under item 10 of Appendix F of the July 8,1998, FOIA Response. These l documents are legal opinions issued by the General Counsel to the Chairman. The documents l need not pertain to pending or threatened legal action in order to be protected by the Attorney-l Client Privilege. Saq, Schiefer v. U.S.,702 F. 2d 233,245 (D.C. Cir.1983)
- Brinton v. Deot. of l State,636 F. 2d 600,604-605 (D.C. Cir.1980).
Accordingly, based upon the above considerations, the predecisional material in Appendices E and F consisting of advisory opinions, recommendations from the staff to the Commission, and Attorney-Client legal opinions are properly withheld under FOIA Exemption 5.
l l
l l
_ . _ _ _. - _ _ . _ . ~ _ _ _ . , - -
t M. Ryan' 3 l .
1 This is a final agency action on these records. As stated in the FOIA (5 U.S.C. 552 (a)(4)(B)),
judicial' review of this decision is available in a district court of the United States in the district in l which you reside or have your principal place of business, or in the District of Columbia.
Sincerely,
[
I John C. Hoyle l W Secretary of the Commission t
(
l i
i~
, _.