ML18101A666

NRC-2018-000027 - Resp 1 - Final

ML18101A666
Person / Time
Issue date:	04/10/2018
From:	Blaney S A NRC/OCIO
To:	Tarver J - No Known Affiliation
Shared Package
ML18101A362	List: ML18101A666
References
FOIA, NRC-2018-000027
Download: ML18101A666 (10)

Text

NRC FORM 464 Part I U.S. NUCLEAR REGULATORY COMMISSION NRC RESPONSE NUMBER (03-2018)

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1uo"'-r>o I NRC 2018 00002711 I /J, RESPONSE TO FREEDOM OF 1 ; i . INFORMATION ACT (FOIA} REQUEST *\,... ;/~ RESPONSE D INTERIM 0 FINAL .,, .........

TYPE REQUESTER:

DATE: !Julian Tarver 11 04/10/2018 I DESCRIPTION OF REQUESTED RECORDS: ML14325A850/

Redacted version publicly available as ML16021A057 PART I. --INFORMATION RELEASED 0 The NRC has made some, or all, of the requested records publicly available through one or more of the following means: (1) https://www.nrc.gov; (2) public ADAMS, https://www.nrc.gov/reading-rm/adams.html; (3) microfiche available in the NRC Public Document Room; or FOIA Online, https://foiaonline.regulations.gov/foia/action/public/home.

0 Agency records subject to the request are enclosed.

D Records subject to the request that contain information originated by or of interest to another Federal agency have been referred to that agency (See Part 1.0 --Comments) for a disclosure determination and direct response to you. D We are continuing to process your request. 0 See Part I.D --Comments.

PART I.A --FEES D You will be billed by NRC for the amount indicated.

0 Since the minimum fee threshold was not AMOUNT met, you will not be charged fees. I $0.00 I D You will receive a refund for the amount indicated.

D D Due to our delayed response, you will not Fees waived. be charged fees. PART 1.8 --INFORMATION NOT LOCATED OR WITHHELD FROM DISCLOSURE D We did not locate any agency records responsive to your request. Note: Agencies may treat three discrete categories of law enforcement and national security records as not subject to the FOIA ("exclusions").

See 5 U.S.C. 552(c). This is a standard notification given to all requesters; it should not be taken to mean that any*excluded records do, or do not, exist. D We. have withheld certain information pursuant to the FOIA exemptions described, and for the reasons stated, in Part II. D Because this is an interi.m response to your request, you may not appeal at this time. We will notify you of your right to appeal any of the responses we have issued in response to your request when we issue our final determination.

D You may appeal this final determination within 90 calendar days of the date of this response.

If you submit an appeal by mail, address it to the FOIA Officer, at U.S. Nuclear Regulatory Commission, Mail Stop T-2 F43, Washington, D.C. 20555-0001.

You may submit an appeal by e-mail to FOIA.resource@nrc.gov.

You may fax an appeal to (301) 415-5130.

Or you may submit an appeal through FOIA Online, https*llfoiaonline regulatjons.gov/foia/action/public/home.

Please be sure to include on your submission that it is a "FOIA Appeal." PART I.C --REFERENCES AND POINTS OF CONTACT You have the right to seek assistance from the NRC's FOIA Public Liaison by submitting your inquiry at https://www.nrc.gov/reading-rm/

foja/contact-foia,html, or by calling the FOIA Public Liaison at (301) 415-1276.

If we have denied your request, you have the right to seek dispute resolution services from the NRC's Public Liaison or the Office of Government Information Services (OGIS). To seek dispute resolution services from OGIS, you may e-mail OGIS at ogis@nara.gov, send a fax to (202) 7 41-5789, or send a letter to: Office of Government Information Services, National Archives and Records Administration, 8601 Adelphi Road, College Park, MD 20740-6001.

For additional information about OGIS, please visit the OGIS website at bttps*//www an;;hbLes gov/og:i_s.

NRC FORM 464 Part I (03-2018)

Please note: U.S. NUCLEAR REGULA TORY COMMISSION RESPONSE TO FREEDOM OF INFORMATION ACT (FOIA) REQUEST PART I.D --COMMENTS This response addresses the record described in your request. NRC RESPONSE NUMBER I NRC 2018 000021 J I 1 RE~~~SE D INTERIM I ./ I FINAL ML 14325A850 is a letter that has also been the subject of prior FOIA requests.

A redacted version of the letter was made publicly available as ML 16021A057.

We continue to assert exemption 6 to protect the name of the letter's originator.

In addition, we continue to assert exemption 5, as it incorporates

\he attorney-client privilege, for the portions of the letter that reflect advice provided by OGC lawyers to NRC staff, of which the letter's originator became aware as part of his official duties. Since you stated that you don't have access to a computer, the NRC is providing a courtesy copy. Signature

-Freedom of Information Act Officer or Designee Stephanie A. Blaney l Digitally signed by Stephanie A. Blaney I . r/:->Elate:

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• a g II UNITED STATES NUCLEAR REGULATORY COMMISSION WASHINGTON, D.C. 20555-0001 November 21, 2014 MEMORANDUM TO: Richard Correia, Director FROM: Office of Nuclear Regulatory Research Division of Risk Analysis Office of Nuclear Regulatory Research Division of Risk Analysis Performance and Reliability Branch

SUBJECT:

Concern about the Appearance of Obstruction of Justice As part of my official duties, I have been tasked to perform a Freedom of Information Act (FOJA} review of numerous documents pertaining to nooding of U.S. nuclear power plants. The instructions and directions from the Nuclear Regulatory Commission's (NRC's} General Council staff to prevent the disclosure of official records containing NRC staff analysis and discussion of flood-related nuclear safety information -and the.resulting defacto NRC policy to not publicly disclose that information

-appear to meet t~e definition of obstruction ofjustice under United States federal statute law. I am concerned about my personal legal liability, with respect to these or other statutes, were J to carry out these instructions as directed.

The discussion of applicable criminal law includes 18 U.S.C.

• 1512(c) (which addresses concealment of documents), 18 U.S.C. 1519 (characterized as the "anti-shredding" provision of the Sarbanes-Oxley Act), and 18 U.S.C. 2232(a} (addressing.

actions taken for the purpose of preventing authorized seizure).

The instructions and directions were issued by NRC General Council staff in September 2014 and subsequently distributed to NRC staff for immediate implementation by the Chief of FOIA (Freedom of Information Act), Privacy, and Information CoHection within the NRC Office of Jnformation Services (OIS).1 The instructions.

were provided to me in October 2014 as guidance from OIS for redaction bracketing of official records pertaining to the discussion of flood-related nuclear safety conc~rns.

Early in November 2014, this guidance was confirmed as defacto NRC policy and I was instructed to follow those directions.2 1 Sec enclosed September 15, 2014, e-mail from Laura Pearson 2 November 2, 2014, e-mail from Richard Correla, Director, United Stales NRC. Office of Nuclear Regulatory Research, Division of Risk Analysis 1 -------

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• 7 557 77. Pg"t g? ltac _ztsd.cJ tc:mi I i I I J Cl. 2 R "J g 7 The directions from the Office of General Council discuss the scope of information to be withheld stating: The above instruction declares!'t1lt 5 l l-supposing that release of the documents to the public could be illegal. This appears to contradict other statcl"!lents, in the guidance, that public release of such information is discretionary.

A more lenient interpretation of the guidance might envision that the General Council is attempting to position the agency in the best possible position to defend NRC's past actions in an antici ated le al cha lien e. To do this, the NRC and the a ency's General Council have stated the c 6 Necessarily, the NRC General Council is advising the agency to diminish its commitment to openness, to diminish 2 1:'hs oacdB&.£ eoLCJlii§ liifoit.MEIB

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.... SE ad _36£ CJ u* F . g good~faith adherence to FOIA law,3 and (by obscuring the present and future visibility of the issue) to diminish its principal responsibilities to the public and public safety as the regulator; all this, to grasp for a more favorable legal position with the stated goals being: l(b){5) lt is demonstrable that.the NRC believes that significant dangers exist related to flooding at some nuclear power plants. The controversy centers on the qu~stion; doe:s the public have a right to know those dangers exist? The agency has asserted that a public release of the general information about the danger can reasonably be expected to endanger life or physical safety.* This assertion confirms the NRC's perception that flood-related dangers are real, since (logicaUy) if no danger existed, there would be no need to withhold the information from the public on the basis that the danger can be exploited.

This leaves only the remaining question of whether disclosure of the general information about the danger is, in fact, reasonably expected to endanger life or physical safety. Whatever the threat, it must necessarily be perceived as serious and significant since. after much deliberation, the NRC has taken a bold action to restrict information that-on*its face-speaks only of a nuclear safety issue and never mentions a security issuc.s As you know, a remarkable amount of time. money, and effort has been spent in analysis and debate ofthc above question*

with the NRC making subsequent determinations to withhold much flood-related information under rOIA exemption 7(t): With scrutiny of these decisions underway, and with legal chalfonges e!".pected in the near future!(bi(5i (b)(~) Selecting the applicable phrases from the law, 18 U.S.C. 1512(c) states: :J A Presidential memorandum, dated January 21, 2009, was issued to all executive departments and agencies emphasizing that the FOIA reflects a "profound national commitment to ensuring an open Government" President Obama called for federal executive departments and agencies to administer the FOIA with "a clear presumption:

[i)n the face of doubt, openness prevails." The President directed departments and agencies not to with~old information

merely because public officials might be embarrassed by disclosure, because errors a*nd failures might be revealed, or because of speculative or abstract fears.** 4 f'or exam pie, the July 2011. Screening Analysis Report for the Proposed Generic Issue on Flooding of Nuclear Power Plane Sites Following Upstream Dam Fail11re does not contain specific design information.

It does include locations of nuclear plants, applicable regulation.

references to numeric flood levels and related numeric flood protection levels. . 5 Although it was issued with extensive redactions, the whole of Richard H. Perkins, Michelle T. Bcnsi, Jacob Philip, and St:llm Sancaktar.

Sr:reening Analysis Report-for Che Proposed Generic lss11e on Flooding of Nuclear Power Plant Sites Following Upstream Dom Failure, July 2011, (NRC ADAMS MLl 13500495) never mentions or discusses a security issue.

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lL~EC-1.Cj d.12112 t ti 6 Hege Whoever corruptly-(1)

... conceals a reCQrd, document, or other object, or attempts to do so, with the intent to impair the object's integrity or availability for use in an official proceeding, or (2) otherwise obstructs; influences, or impedes any official proceeding, or attempts to do so, shall be fined under this title or imprisoned not more than 20 years, or both.6 ' Quot\ng from a Congressional Rese~rch Service report, "section 15i2(c) covers only obstructions committed or attempted with 'corrupt' intent. Here, the courts have said that 'corruptly' means 'acting with an improper purpo~e and to engage in conduct knowingly and dishonestly with the specific intent to subvert, impede, or obstruft the proceeding;'

that it means 'acting with consciousness of wrongdoing.'

It does not mean that the obstruction must be done with wicked or evil intent." 7 Because it is-so clearly written, t~e guidance and defacto policy leaves little doubt that the motivation to prevent the public disclosure of the documentation is that the NRC and the NRC's General Council fear disclosur_e would show the courts that the agency had improperly used FOIA ex~mption 7(f) to withhold pertinent nuclear safe information from the ubl ic. 0 e=n ... lv......._th

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oes on to state Remarkably, all these justifications put the ag~ncy's _n_a_r-ro_w_e_r_s-e"'"lf

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... b_o_v_e_t"'"'h-e-interest of the public, their safety, and the public's right to know of -both the government's conduct a*nd the dangers the public is exposed to. Similar sentiment is expressed in §1519. According to a Congressional Re~earch Service report, "where subsection 1512(c) condemns obstruction offederal proceedings by destruction of evidence, §1519 outlaws obstruction of federal ir1vesti9ations."~

The applicable phrases being: . Whoever knowingly

... c.onceals or covers up ... any record, document, or tangible object with the intent to impede, obstruct, or influence the invcstigation or proper administration of any matter within the judsdiction of any department or agency of the United States, ... or in relation to or contemplation of any such matter or case, shall be fined under this title, imprisoned not more than 20 years, or both.9 1i The full text of 18 U.S.C. 1512(c) is: Whoever corruptly-(!)

alters. destroys, mutilates, or conceals a record, document, or other object, or attempts to do so, with the intent to impair the*object's integrity or availability for use in an official 'proceeding; or (2) otherwise obstructs, influences, or impedes any official proceeding.

or attempts to do so, shall be fined under this title or imprisoned not more than 20 years, or both. 7 Charles Doyle, Obstruction ofjustice:

An Overview o{Someof the Federal Statutes That Prohibit Interference wich Judidal, Executive, or Legislative Activities. (Congressional Research Service, April 17, 2014), 14. a Charles Doyle. Obstruction of]uscice:

An Overview a/ Some of the Federal Statutes That Prohibit lnr.erferc:ncc with judicial, Exec11tive, or Legislative Activities. (Congressional Resear.ch Service, April 17, 2014), 60. 9 The full text of 18 U.S.C. 1519 !s: Whoever knowingly alters. destroys, mutilates.

conceals, covers up, falsifies, or makes .a false entry in any record, document, or tangible object with the intent to Impede. obstruct, or influence the investigation or proper administration of any matter within the jurisdiction of ,my 4

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• J s r ln discussing the applicability or §1519, the Congressional Research Service states: lt seems cJear that the conduct which §1519 proscribes (prohibits}

is not limited to conduct that impedes a pending investigation; the obstructed official consideration need be neither pending ("in contemplation of'} nor take the form of an investigation

("investigation or proper administration of any matter)

The legal breadth of these provisions is currently before the U.S. Supreme Court (Yates v. United States} in consideration of whether the law applies to all tangible objects or mainly records -and its threshold of applicability given the seriousness of a crime. Nevertheless, the General Council guidance and N RC defacto policy appear to attempt to circumvent the discove,yo[bona fide official records relating to serious nuclear safetyconcerns.10 CJearly, th*e agency has shown its preference that the public not be privy to that analysis and discussion.

Jrrespective of whether the courts would interpret the NRC's action.as criminal obstruction of justice, and irrespective of the appearance that the NRC's action may mirror criminal behavior, it is sim'ilarly troubling that the agency is going through great contortion, not to assure nuclear safety, bul: to stave off a loss in court which would force the disclosure of nuclear safety information that the public has likely been entitled to from the beginning.

The. irony, here, is that a science-oriented organization, such as the N RC, would choose to prevail, not by strength of argument but, rather, the prescribed omission of unwelcome data from the public record. ln the following excerpt, the agency argues the use of exemption 5 is necessary to assure candid discussion among potentially shy nuclear regulators:

\UJl"} Given the importance of the matter (the wide-ranging impact of this nuclear safety issue on

• both the United States economy and the physical safety of a large, dispersed population) a reducto ad absurdum is that the underlying reasons for all government decisions need never be shared with the public since (as the argument goes) the best decisions can only be

• obtained if the public is never to discover the true nature of the r~asoning behind them. It seems far more likely, here, that the objective is to operate without tr~nsparency, to avoid department or agency of the United States or any case filed under title 11, or in relaUon to or contemplation of any such matter or case, shall be ffned under this title, imprisoned not more than 20 years, or. both. 1 o Inferred from the government's argument that the issue's exploit may cause serious harm. See also, data and consequences discussed in Richard H. Perkins, Michelle T. Bensi, Jacob Philip, and Selim Sancaktar, Screening Analysis Report for the Proposed Generic Issue on Flooding of Nuclear Power PlanLSites Following Upstream Dom Fail!ire, July 2011. See also, United States NRC staff non-concurrence, NCP-2014-010.

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• the need to defend a controversial position, and to escape culpability for what might be inferior conduct of the agency. What confidence can we have in decision makers who are unwilling to share their reasoning?

Along similar lines, the guidance and direction from the NRC's general council is marked "Sensitive Internal Information

-Attorney-Client Privilege", The General Council staff appears to be invoking this protection to prevent discovery (as if privileged legal advice) when it is actually guidance and direction, distributed as such, to subsequently become defacto policy. Finally, the actions mirror obstruction ofjustice under 18 U.S.C. 2232(a) which deals with attempts to prevent the lawful seizure of evidence.

Section 2232(a) mentions neither proceedings nor investigations; it simply outlaws destruction or removal of property in *order to prevent the government from seizing it.11 This last point is more removed than the previous two arguments.

The proscribed offense involves a person authorized ta seize property and the destruction or removal of the property (or attempts to d~stroy or remove the property) for the purpose of preventing its seizure. Here, it may only be relevant as an illustration of bad faith that the agency's policy deliberately impedes the lawful seizure of safety-related documents by the public. Nevertheless, the difference is only the reversal of roles between the government and the public: the actions, otherwise, seeming to align with the definition of obstruction of justice un~er the statute. I am concerned that the agency's desire to preserve its assumed right to withhold nuclear flood*related safety information from the public has ave/shadowed the priority of providing proper, defen*sible, competent nuclear regulation and to provide an open environment in which to demonstrate the agency's proper conduct to the public. Given the arguments contained herein, I request additional guidance and recommend that the NRC reconsider its actions with deference to the agency's regulatory responsibilities.

r,:esj)ectfully submi tied,

• 1 u

Enclosure:

Septe~ber 15, 2014 e*mail from Laura Pearson 11 Charles Doyle. Obstruction of]ustice:

An Overview a/Some of the Federal Statutes That Prohibit lnterfererrce wfth )11dicial, Executive, or legislative Activities. (Congressional Research Service, April 17, 2014). 64. 6 i' ifhis documenf cbhlJIJi§ liildiHIJEIGil Wiiilli Cif@ D. 5. IJGEIE&I Jt@Q&!BLS!§

&s::a::tss+/-B!l From: Pearson, Laura Sent: Monday, September 15, 2014 7:49 AM Tot Brown,. Natalie; Stevens, Margo; Argent, Nina Cc: Hirsch, Pat SUbject: Fw: DRAFT FOR REVIEW -E-mail regarding "Memo on memo" issue Nina-please disseminate to the FOIA team N I. /M *t h . . I

• b ,c~lc 5 J ata 1earqo-1 we ave anything going out. pu I 1t ack. l'b)(5) I L-. __________

..... Sent from my NRC Blackberry.

Laura Pearson 1'6)(6) I (b)(5) 7 ttZil&h !Ii C i c -* -* .!&Sl a tl rt: cl"'*-accas I ; ....... s-*-** illlliillilllit*Rilliii-ii.z*:ziii' Ji.s;,;~;;.-:--

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