ML20206H597

Responds to Appeal of Partial Denial of FOIA Request for App F Documents.Request Approved in Part & Denied in Part. Portions of Documents 1,3,5,23,25 & Attachments to Document 20 Withheld (Ref FOIA Exemption 5)

ML20206H597
Person / Time
Site:	Comanche Peak
Issue date:	11/14/1988
From:	Chilk S NRC OFFICE OF THE SECRETARY (SECY)
To:	Bauman L GOVERNMENT ACCOUNTABILITY PROJECT
Shared Package
ML20206H601	List: ML20206H597 ML20206H614 ML20206H619 ML20206H642
References
FOIA-87-596, FOIA-88-A-5 NUDOCS 8811230247
Download: ML20206H597 (3)

Text

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[e* OogDo UNITED STATES \g .

g? ' y, y' ,g NUCLEAR REGULATORY COMMISSION f a W ASH IN G T ON, 0.C. 205SS k . . . . . o#

OHICE OF THE November 14, 1988 SECRETARY Hs. Linda Bauman Government Accountability Project Midwest Office 104 East Wisconsin Avenue Appleton, Wisconsin 54911 Re: F0!A-88-A-5(87-596)

Dear Hs,

Bauman:

l This letter responds to your January 5,1988 appeal of a partial deniel of a request for documents in the Nuclear Regulatory Comission's letter of l

December 9, 1987 in response to FOIA-87-596.

In response to your appeal, I have re-reviewed the documents withheld either in whole or in part in Appendix F. I have detemined that some of the documents or portions of certain documents may now be released. For example, Documants 15, 16, 17, 18, 19 and 26 were scheduled for release in the initial package but were withheld by mistake. Theyarebeingreleasedatthistime.

Moreover, Document 4 is already available in the NRC s Public Document Room

("PDR"). Furthemore, the Comissian is releasing a portion or portiois of Documents 1, 3, 5, 23, and 25, certain attachments to Document 3, all attachments to Document 5, and Docament 20 in its entirety. These dor.uments will be placed in your folder in the PDR.

However the Comission contir.oes to withhold the remaining portions of Docuwats 1, 3, 5, 23, and 25 and the attachments to Document 20. These dor u ents are exempt from randatory disclosure under Exemption 5 o' the Freedom of Information Act ("FOIA") 5 U.S.C. 552 (b)(5), and 10 C. f.R.

9.17 I4)(5) of the Comission's regulations. I have also affirmed he initiai dect? ion to withhold Documents 2, 6 through 14 inclusive, 21, 22. at 24 in l

the'r entirety under Exemption 5.

Scre of these documents re memoranda between the various Comissioners or bstween the Comissioners and their principal staff officers. They centain advice, recomendations, and comments on potential actions by the Comission and other matters including policy. Other documents or attachmen's to documents are drafts or proposals of Comission positions on various issues or proposed Comission actions. Many .of these documents contain handwritten annotationr by the various individuals indicating their agreccent or disagreement with the views expressed or suggesting alternative courses of action.

These drafts of proposed Comission positions or actions and the internal advice, recorfrendations, and opinions between the Comissioners themselves and 8811230247 081114 PDR FOIA DAUMAN88-A-5 PDR

O

. 2 between the Comission as a bcdy and the principal staff offices are part of the "deliberative process" which is exempt from mandatory disclosure under Exemption 5 of the F0IA because it "would not be available by law to a party 5U.S.C.552b(5);

other than an agency)in litigation with the agency."

10 C.F.R. 9.17 (b)(5 . This is the "deliberative process privilege." The purpose of the deliberative process privilege is to "prev # injury to the quality of agency decisions." NLRB v. Sears, Roebuck & Co., ni 't.S. 132, 151 (1975). Disclosure of these predecisional documents would be liktly to "stifle honest and frank communication within the agency." Coastat States Gas Corporation v. Departnent of Energy, 617 F.2d 854, 866 (D.C. Cir.1980).

Moreover, the Comission is withholding from disclosure a two-page attachment to Document 3 under [xemption 6 of the F0IA, 5 U.S.C. 552 (b)(6), and 10 C.F.R. 9.17 (a)(6) of the Commissions regulations. The Comission is also withholding from disclosure the attachment to Document 25 under Exemptions 6, 7(A),7(C),and7(D)oftheFOIA,5U.S.C.552(b)(6)and(7)(i),(iii),and (iv), and 10 C.F.R. 9.17 (a)(6) and (7)(1), (iii), and (iv).

These documents contain personal infomation which, i' releised, "would constitute a clearly unwarranted invasion of personal lrivacy." 5 U.S.C.

552 (b)(6); 10 C.F.R. 9.17 (b)(6). Exemption 6 proted 4 this information from mandatory disclosure, even though it may not appear in the ir.dividual's personnel file. The protection of an individual's privacy interests "surely was not intended to turn upon the label of the file wlich contains the damaging information." Department of State v. Washi'igton Post _Co_., 456 U.S.

595,601(1976). I have concluded tiio t 0.0 l rive:y interests of the individuals involved in this situatio$ outweighs the publ'c's ri disclosure. Department of the Air Force v. Rose 425 U.L. 1976). 352 (ght to Furthermore, the attachment to Document 25 is a letter alleging potential  !

violations of the Comission's regulations. Therefore, the letter was compiled as a part of the Commission's "law enforcement purposes." f U.S.C.

! 552 (b)(7), which includes civil as well as criminal statutes. Stern v. FBI, 737 F.2d 84 (0,C. Cir. 1984); Rural Housing Alliance v. _ Department of 1riculture, A 498 F.2d 73, 81 & n.46 (D.C. Cir. 1974). Release of this letter cou1Y hinder an ongoing or prospective enforcement proceeding. NLRB v. <

l Robbins Tire and Rubber Co., 437 U.S. 214 (1978). (

The letter also indicates that the author fears possible retaliation for ,

providing the inforration to the Comissinn. Therefore, the Comission has [

treated the author as a confidential source under the circumstances of this case. United Technologies Corp. v. NLRB, 777 F.2d 90, 94 (D.C. Cir. 1985).

l The letter also contains personal infonnation which might constitute an invasion of personal privacy. Based upon the facts of this case, I can find no public interest in the disclosure of this person's personal information l

' which outweighs the individual's privacy interests. Connon Cause v. National '

Archives A Records Service, 628 F.2d 179,184-86 (D.CTCTr.180). Finally 7 the letter is a part of an ongoing investigative and enforcement action at l

Conanche Peak.

I f I l

l

3-This letter represents final agency action on your administrative appeal of January 5, 1988. Judicial review of the denial of the documents or portions of documents withheld is available in the Federal District Court in the district in which you reside or have your principal place of business, or in the Federal District Court of the District of Columbia.

Sincerely.

l Samuel J. C ilk l

Secretary of the Connission i

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