ML20083A246

Appeals Denial of FOIA Request for Ltr from Dp Hall to NRC

ML20083A246
Person / Time
Site:	South Texas
Issue date:	04/15/1993
From:	Colapinto D NATIONAL WHISTLEBLOWER CENTER
To:	NRC OFFICE OF THE EXECUTIVE DIRECTOR FOR OPERATIONS (EDO)
Shared Package
ML20082T309	List: ML20082T903 ML20083A246 ML20083A331
References
FOIA-93-44, FOIA-93-520, FOIA-93-A-8 2.206, NUDOCS 9505100123
Download: ML20083A246 (2)

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. NATIONAL WHISTLEBLOWER CENTER 517 Florida Avenue.NW Washington DC 20001-1850 (202) 667-7515 Fax (202) 462-4145 April 15, 1993 APPF110p gg gg 93nsrcg3-y9 Executive Director for Operations U.S. Nuclear Regulatory Commission Q h p y Y 3-Washington, D.C. 20555 Ret ADoeal of April 12. 1993 denial, FOIA-93-4(

Dear Executive Director for Operations:

We hereby appeal the NRC's denial of information in response to FOIA request 93-44. Specifically, we are appealing the total denial of access to information listed as items numberThe oneasserted (1) and two (2) on Appendix D of FOIA-93-44 (Apr. 12, 1993).

grounds for total denial of access to this information is based on Exemption 4. For the reasons stated below, we do not believe that Exemption 4 is applicable to documents 2 & 3 of Appendix D.

Both dccuments which are the subject of this appeal are described as Houston Lighting & Power Co.'s ("HL&P") responses to a petition filed by Thomas Saporito pursuant to 10 C.F.R. $ 2.206, which alleged that HL&P had committed several violations of NRC regulations at the South Texas nuclear power plant.

In order for Exemption 4 to apply to these documents it must be demonstrated that the information contained therein is either a

" trade secret" or information which is " commercial" or " financial",

obtained from a person and privileged or confidential. Getman v.

NLRB, 450 F.2d 670, 673 (D.C.Cir.), stav denied, 404 U.S. 1204 (1971).

Obviously, the information contained in HL&P's response to Mr.

Saporito's 2.206 petition cannot be considered a " trade secret".

The courts have held that, for FOIA purposes, the term " trade secret" should be limited in meaning to: "a secret, commercially ,

valuable plan, formula, process, or device that is used for the making, preparing, compounding, or processing of trade commodities and that can be said to be the end product of either innovation or  !

substantial effort." Public Citizen Health Research GrouD v. FDA, l 704 F.2d 1280, 1288 (D.C.Cir. 1983). The information contained in )

HL&P's response to Mr. Saporito's 2.206 petition simply cannot be considered " commercially valuable" in light of the fact that the gravamen of Mr. Saporito's allegations were that HL&P was not in compliance with publicly known technical specifications of the l South Texas plant or with NRC regulations concerning health and i safety matters and/or plant security. The " trade" information l 9505100123 941220 0 4

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MRC BDO April 15, 1993

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contained in the HL&P responses . is not secret since it is, most likely, already publicly available from the NRC.  !

1 The true motive of HL&P in attempting to prevent the public  !

from obtaining its response to safety allegations raised . by a  !

whistleblower has nothing to do with protecting " trade secrets". l Rather, HL&P is trying to block public access to information about.  ;

its violation of health and safety regulations. Notably, HL&P l received a Notice of Violation . from the NRC after Region 'IV .

investigated Mr. Saporito's allegations. Egg, Notice of Violation  ;

(NRC Inspection Report Nos. 50-498/92-07; 50-499/92-07) (June 1, i 1992); and Director's Decision No. 92-05 (Oct. 5,1992) . Moreover, r although HL&P's response to Mr. Saporito's petition is somehow I considered " secret" its response to the Notice of Violation, which covers the same subject matters as the petition, is publically l available. l Likewise, Exemption 4 does not apply because the information  !

withheld cannot be considered " confidential". Disclosure of the information will neither impair the government's ability to obtain ,

such information in the future, nor will it cause substantial harm i i

to HL&P's competitive position. First, HL&P is-required to respond to 2.206 allegations pursuant to NRC regulations and, as a  ;

condition of license, to candidly report information related to ,

safety violations. S.gg, General Electric Co. v. NRC, 750 F.2d 1394 (7th Cir. 1984) (If the licensee is required to provide the  :

information by statute, regulation, some less informal mandate, or i ac a condition for a valuable benefit, it is unlikely that the government's ability to obtain such information will be impaired by i disclosure). Second, HL&Piffaces no actual competition which would disclosure were permitted. 333, l

be substantially harmed Worthinaton comoressors. Inc. v. Costle, 662 F.2d 45, 51 (D.C.Cir.  !

1981); Gulf & Western Industries v. United States, 615 F.2d 527  :

(D.C.Cir. 1979). {

t Accordingly, disclosure of documents 1 & 2 of Appendix D should be released in their entirety.

Sincerely, q i

.W-

.m David K Colapi cc:

NRC Inspector General

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