ML20236S211
| ML20236S211 | |
| Person / Time | |
|---|---|
| Issue date: | 07/14/1998 |
| From: | Janosko G NRC OFFICE OF NUCLEAR MATERIAL SAFETY & SAFEGUARDS (NMSS) |
| To: | NRC OFFICE OF NUCLEAR MATERIAL SAFETY & SAFEGUARDS (NMSS) |
| Shared Package | |
| ML20236S154 | List: |
| References | |
| NUDOCS 9807240201 | |
| Download: ML20236S211 (11) | |
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/*"%4g lt UNITED STATES yo j
.. j NUCLEAR REGULATORY COMMISSION
't WASHINGTON, D.C. 20555-0001 o
g MEMORANDUM TO:
All NMSS Employees
SUBJECT:
FREEDOM OF INFORMATION ACT PROCEDURES PURPOSE This procedure establishes guidelines for processing requests submitted under the > :dedom of Information Act (FOIA). These guidelines ensure that requests are thoroughly researched and that responses are completed in a timely manner. Any NMSS employee who receives, possesses, or responds to a FCIA. request should adhere to the procedures established in the Freedom of Information Act (5 U.S.C. 552); 10 CFR, Part 9, Subpart A - Freedom of Information Act; Management Directive and Hanobook 3.1, " Freedom of Information Act; and the direction given by the Office of Nuclear Material Safety and Safeguards.
DEFINITIONS FOlA REQUESTS - They are written requests from any person for records maintained by agencies within the Executive Branch of the Federal government. The FOIA requires that an Agency respond within 20 business days, with an additional 10 business days allowed for one or more of 3 specified unusual circumstances: 1) records must be obtained from separate locations,2) a large volume of records; or, 3) the need to consult with another agency or component of this agency.
AGENCYRECORDS-These are records in the possession and control of the NRC that are associated with Government business and maintained in any format including an electronic format. They include any book, paper, correspondence, report, computer tape, film, map, i
drawing, diagram, photograph, brochure, punch card, magnetic tape, paper tape, sound recording, pamphlet, slide, motion picture or other documentary material.
It does nqt include publicly available books, periodicals, or other publications owned or copyrighted by profit-making or nonprofit-making organizations. It also does.niqt include objects, i.e., furniture, vehicle, equipment, rocks, soil samples, that cannot be reproduced. It also does no.1 include records solely in the possession and control of NRC contractors. It does. net include personal records (see section below) and it does.n. lot include non-substantive information in logs or schedule books of the Chairman or Commissioners, uncirculated except for typing or recording purposes.
CONTACT: Cathy Poland, NMSS/PMDA/RMB (301) 415-7812 l
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0 APPROVED:
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MV DATE: May 1,1998 Gary S. Janosko,< C!hief, RMB 9807240201 990714 I
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Drafts are " agency records;" however, early drafts of documents not yet in final form may generally be withheld from public disclosure under the provisions of Exemption 5, Predecisional.
(An explanation of each Exemption starts on page 7.) If a final document has gone out, the earlier drafts will have to be reviewed to see if the information contained within the drafts is still of a predecisional nature.
PERSONAL RECORDS - These are records that are not subject to the FOIA. They are notes created by an individual that have not been circulated to or used by anyone other than the author, are discarded or retained at the author's sole discretion, and that are filed in a personal l
file and not comrningled with agency records. A personal record becomes an agency record if one of the following occurs:
- 1) If the records were shared with another individual, either directly or verbally;
- 1) !' the records are filed in an office file as opposed to an individual's nersonal file; l
3)If the records are commingled with agency records as part of an ongoing working file; l
- 4) If the records are used as the basis for taking an agency action.
EXEMPTIONS - These are the bases for withholding information from public disclosure. There are nine exemptions under which information can be withheld. The most common for NMSS are Exemption 4 - Proprietary Information; Exemptien 5 - Predecisional; and Exemption 6 -
Personal Privacy Information.
l APPEALS - The denial of information, adequacy of the search performed, or lack of a response within the statutory time frame may be appealed by a requester within 30 days of the response.
The office involved is required to review their decision, consider any new information presented in the appeal letter, and determine, if appropriate, if the information still needs to be protected.
These decisions will be reviewed by the Director, Office of Nuclear Material Safety and Safeguards or Director, Program Management, Policy Development and Analysis Staff.
NRC has 20 days in which to respond to an appeal.
FORESEEABLE HARM - The latest Department of Justice policy regarding information j
denied in response to FOIA requests (Memorandum from H. L. Thom; son, Jr. to Office Directors and Regional Administrators dated December 17,1993) follows:
The Department of Justice will no longer defend an agency which withholds information unless " foreseeable harm" would result from its disclosure, despite the fact that a valid FOIA exemption could be applied to the information. Where an item of information might technically or arguably fall within an exemption, it ought not be withheld from an FOIA requester unless it need be.
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..The Department of Justice is to " defend the assertion of a FOIA exemption only I
in those cases where the agency reasonably foresees that disclosure would be l
l harmful to an interest protected by that exemption.
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...For example, if a decision-maker does not believe that disclosure woLid i
I hamper him/her from obtaining objective and candid recommendations in the future, the information should be disclosed as a matter of discretion, even though it could " legally" be withheld under Exemption 5..
The greatest threat of harm to the deliberative process is when disclosures are made prematurely while deliberations are in progress. This could cause confusion for the public and encourage undue interference with the decision-making process. However, once a final decision has been made, we should carefully weigh the " foreseeable harm" versus the " benefit" of full or partial disclosure of documents used in the decision-making process (to include drafts) so the public is given a full understanding of all of the facts, opinions, and recommendations that led to the agency's final decision. This should be carefully balanced against the potential for " harming" the quality of advice and recommendations in future deliberations by causing a chilling effect on those involved in the process..
..The " foreseeable harm test" is to be carefully applied if the office proposes to use Exemption 5 to withhold information that is predecisional and deliberative; or to use Exemption 7A to withhold information which could interfere with a law enforcement proceeding if disclosed.
RESPONSIBILITIES AND AUTHORITIES Director. Office of Nuclear Mater _ial Safety and Safeauards or Director. Proaram Manaaement. Polie r Development and Analysis Staff Reviews and signs off on all appeals aier they have been processed by the NMSS FOIA Coordinator. The Director will determine if the record (s) should continue to be withheld or to approve the statement that no further records have been found. The Director must also approve the harm statement used for withholding any records under an appeal.
Chief. Resource Manaaement Branch Reviews and signs off on all FOIA responses after they have been processed by the NMSS FOIA Coordinator. The Chief reviews the package of information to ensure that all exemptions are identified and annotated near the information to be withheld under the specific exemption; that all documents are correctly identified as to their releasability (e.g. releasable in their entirety, denied in part, 1enied in their entirety); that the records identified as responsive to the request appear to be complete; and that the response to the FOIA/PA Office is complete.
NMSS Allegations Officer l
Reviews and signs off on any FOlA responses that pertain to an allegation. The NMSS Allegations Officer reviews the index of documents along with the documents to identify what is releasable and what is not.
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4 NMSS FOIA Coordinator Coordinates the processing of the FOlA requests from the time they are received and are f
assigned an action number until NMSS' response is hand carried to the FOIA/PA Office.
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Review all FOlA requests which are assigned to their Division. The Division Directors should I
review requests to make sure that they have been sent to the appropriate division (s) for action and immediately assign them to the appropriate Branch (s) for action.
NMSS Branch Chiefs
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Review requests and assign them to the appropriate staff for action. Review documents located i
to respond to the request to ensure that they are appropriate and the search for responsive documents is complete. Branch Chiefs are responsible for signing off on FOlA packages before they are provided to the NMSS FOIA Coordinator. [This may be delegated to another level of management if desired.) This review consists of making sure the documents are relevant to the request, the appropriate releasability recommendations have been made, and the documents are correctly identified.
NMSS Licensina Assistant or Assioned Individual Review the FOIA requests and contacts the appropriate individuals in the Division who are likely to have records subject to the request. If the documents requested are old, provides a copy of the FOIA request to the File Center in order for the File Center to call back the appropriate boxes. Searches the NUDOCS system for documents and/or requests a printout of publicly available documents and Central File (CF) documents from Pat Exum. Within two working days from the date the action is received, provides NMSS FOIA Coordinator with " guesstimate" of anticipated time needed to be spent on search for records, review of those records and
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estimated number of releasable pages. The NMSS FOIA Coordinator will advise the Licensing Assistant (LA)/ Assigned Individual (AI) when to begin processing the request.
l Once the documents have been provided from all areas, the LA or Al reviews the documents for personal privacy information, company proprietary information, predecisional information, etc.
and brackets the information recommended to be withheld. The documents are then copied and an index is typed in chronological order under the appropriate headings. (A sample of the j
appropnate headings for the index is in the Attachment.) If documents have been captured which fall under Exemptions 4 or 5 then the LA or Al needs to make sure that a " Foreseeable Harm" paragraph is attached for each item identified under those exemptions. If there is an ongoing or closed allegation that the documents deal with, they must be given to the NMSS Allegation Officer to review. The NMSS Allegation Officer will review the records and then instruct the LA and/or Al as to which records are relevant to the request and how those records should be handled. The documents and listing are then provided to the Branch Chief for j
signature. After the Branch Chief signs off on the FOlA package,it is then provided to the l
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i BASIC REQUIREMENTS / FUNCTIONS OF THE NMSS FOIA COORDINATOR l
l records and provide an estimate of the anticipated time to be spent by Clerical, Professional, and SES personnel on the search for records, review of those records and the estimate of how l
many pages are releasable [not counting the documents that are located in the Public Document Room (PDR) ).
- 2. Estimates are provided to the FOIA Office Contact, who willlet the NMSS FOIA Coordinator know if the requester needs to be contacted or if NMSS should proceed.
- 3. If the staff has questions on any part of the FOIA request,i.e., too broad; not broad enough; need a time frame, then the NMSS FOIA Coordinator will discuss this with the FOIA Office Contact at this time.
- 4. When the documents have been provided, the NMSS FOIA Coordinator reviews the documents, page-by-page, checks documents against the index to make sure they are in the correct category and makes changes to the index as appropriate. The NMSS FOIA Coordinator looks for personal privacy information, company proprietary information, etc. and also determines if the records captured fully respond to the FOIA request. A final response memo is issued by the NMSS FOIA Coordinator who signs off on the package. If the package contains records dealing with an allegation, the NMSS Allegation Officer will again review all of the documents along with the index to make sure that all of the documents have been provided and listed correctly. Upon reviewing the documents, the NMSS Allegation Officer will sign off on the package. The package is then returned to the NMSS FOIA Coordinator who will provide it to the Chief, Resource Management Branch for review and final signature.
- 5. The index listing the documents is then copied for retention by the NMSS FOIA Coordinator and the response is hand carried to the FOIA Office. A copy of the index of the documents will also be e-mailed to the FOIA Office Contact to facilitate consolidation of indices with those from other offices that may also be responding to the same request. The copy of the index, the 1
incoming FOIA request, and any pertinent documents, i.e., e-mails; are all attached and filed by FOIA number in the NMSS FOIA Coordinator's office. If the package contains allegation information, the entire pi~kage is put into a sealed envelope with a blue ALLEGATION NOTICE sheet stapled on top and put into the locked cabinet where the other completed FOIA requests are retained.
GENERAL GUIDELINES
- 1. All FOlA requests should be considered a high priority action.
- 2. By two working days from the receipt of the FOIA action, an estimate should be provided as to how much search, review and duplication the FOIA will entail.
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- 3. The NRC has 20 working days to complete a request. Up to an additional 10 days is allowed for " unusual circumstances," which are defined in the FOIA as:
a) need to obtain records from separate locations; or b)large volume of records, or c) need to consult with other agencies or components of our agency.
A requester has recourse to legal action against the agency if responses are delayed beyond J
the 20 working days or, if one or more of the 3 " unusual circumstances" exists,30 working days.
- 4. A Branch Chief or another level of management delegated by the Branch Chief should be the signing official for each Division when a FOIA request has been completed.
SEARCH BY NMSS The LA or Al mut.t make a timely search, including the NUDOCS, for relevant documents. The entire Division should be contacted by this individual to ascertain whether they have, or are aware of, any records that are subject to the request.
As a general rule, a search is adequate when all of the relevant records have been located that an individual familiar with the subject matter can reasonably be expected to find in a reasonable amount of time. This search includes obtaining relevant records from Central Files. However, since the adequacy of searches has been an issue in litigation, it is imperative that staff reviews of relevant documents be thorough, including letters referenced in documents that are subject to the request.
REVIEW BY NMSS All documents that are captured by a search for relevant documents should be reviewed page-by-page to determine:
- 1) are they relevant to the request,
- 2) are they releasable or does information need to be withheld,
- 3) were they originated by NMSS or do they need to be referred to another office and/or agency,
- 4) do they contain any personal privacy information, company proprietary information, etc.
- 5) do they pertain to an allegation.
A thorough review should be done by the LA and/or the Al and then again by the signing official before the documents are provided to the NMSS FOIA Coordinator.
The documents are then reviewed again by the NMSS FOIA Coordinator and then by the Chief, Resource Management Branch before the completed FOIA package is passed onto the FOIA Office Contact.
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DUPLICATION BY NMSS All pages of all relevant documents need to be copied whether they be oversized maps or bound documents. The only exception to this is if a document has been published as a NUREG. You can provide the NUREG title, date, and description and the requester will be told to go to the Government Printing Office to purchase a copy. Please remember that copyrighted materialis subject to FOIAs. The material is copied and asterisked on the index to indicate it is copyrighted material. When the FOIA Office Contact processes the request, the information will be placed in the PDR with a notation that it has " read only" authority. If the requester wants it, he will have to go to the PDR in order to see it. Please remember also that newspaper articles are copyright protected also. When counting the copied pages, please remember that if a page is copied on both sides, that is considered two pages instead of one.
EXEMPTIONS:
Exemption 1: Classified Information Records "(a) specifically authorized under criteria established by an Executive order to be kept secret in the interest of national defense or foreign policy and (b) are in fact properly classified pursuant to such Executive order."
Exemption 2: Internal Rules and Practices Exemption 2 includes those records "selated solely to the internal personnel rules and practices of an agency."
Exemption 3:Information Exempted by Statute Exemption 3 includes those records "specifically exempted from disclosure by statute, provided that such statute (a) requires that the matters be withheld from the public in such a manner as to leave no discretion on the issue, or (b) establishes particular criteria for withholding or refers to particular types of matters to be withheld. NRC uses Exemption 3 to withhold Restricted Data and Unclassified Safeguards Information under the Atomic Energy Act of 1954."
Exemption 4: Proprietary Information Exemption 4 includes " trade secrets and commercial or financial information obtained from a person and privileged or confidential [ matters)," referred to in these procedures as confidential business or proprietary information.
Exemption 5: PredecisionalInformation Exemption 5 involves " interagency or intragency memorandums or letters which would not be available by law to a party other than an agency in litigation with the agency."
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8 Exemption 6: Personal Privacy Information Exemption 6 involves " personal and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy."
Information that is usually withheld under this Exemption is as follows:
a) home address; b) home phone number; c) marital status; d) age; e) number of children (names, ages, etc.)
Information about NRC employees which is considered public information and is disclosed upon request is:
a) Employee's name b) present and past Federal position titles; c) present and past Federal grades; d) present and past Federal salary; and e) present and past Federal duty stations.
Exemption 7: Investigatory Records Exemption 7(A) through (F) involve " records or information compiled for law enforcement purposes, but only to the extent that the production of such law enforcement records or information -
"(A) Could reasonably be expected to interfere with enforcement proceedings."
"(B) Would deprive a person of a right to a fair trial or an impartial adjudication.'"
"(C) Could reasonably be expected to constitute an unwarranted invasion of perscaal privacy."
"(D) Could reasonably be expected to disclose the identity of a confidential source, including a State, local, or foreign agency or authority or any private institution which furnished information on a confidential basis, and, in the case of a record or information compiled by a criminallaw enforcement authority in the course of a criminalinvestigation or by an agency conducting a lawful national security intelligence investigation, information furnished by a confidential source."
"(E) Would disclose techniques and procedures for law enforcement investigations or prosecutions, or would disclose guidelines for law enforcement investigations or prosecutions if such disclosure could reasonably be expected to risk circumvention of the law."
"(F) Could reasonably be expected to endanger the life or physical safety of any individual."
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g Exemption 7A.. does not allow for a " blanket" withholding of all records relating to a case
. merely because an enforcement proceeding is pending, but requires a person that is knowledgeable about the investigation to make an independent determination about each record and decide whether it must be withheld because its disclosure could likely cause some harm. In most cases,it does not seem reasonable to claim that none of the records in a pending investigative file can be disclosed without possibly interfering with the investigation or proceeding. Normally, Exemption 7A cannot be used to withhold information submitted by or known to be in the possession of the FOIA requester, such as interviews of the requester or records obtained directly from the requester, unless a particular rationale can be articulated that, despite the individuals knowledge or possession of this information already, re-disclosure at this time could interfere with the enforcement proceeding. Likewise, Exemption 7A does not apply to routine administrative materials contained in an investigative file which would have no effect on the outcome of the law enforcement proceeding if disclosed.
Exemption 8: Records of FinancialInstitutions Exemption 8 involves matters that are ' contained in or related to examination, operating, or condition reports prepared by, on behalf of, or for the use of an agency responsible for the regulation or supervision of financialinstitutions."
Exemption 9: Oil and Gas WeIIData Exemption 9 involves " geological and geophysical information and data, including maps, concerning wells."
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,a EXAMPLE OF INDEX HEADINGS FOR THE FIVE DIFFERENT CATEGORIES (A)~
Re: FOIA APPENDIX RECORDS BEING WITHHELD IN PART NQ D6T_E DESCRIPTION /(PAGE COUNT)/ EXEMPTIONS
~(B)
Re: FOIA APPENDIX RECORDS ALREADY AVAILABLE IN THE PDR ACCESSION NO.
DATE NUMBER DESCRIPTION /(PAGE COUNT)
(C)
Re: FOIA APPENDIX RECORDS TO BE REFERRED TO OTHER OFFICE / AGENCY / COMPANY NO.
DATE ENTITY DESCRIPTION (PAGE COUNT)
(D)
Re: FOIA APPENDIX RECORDS BEING RELEASED IN THEIR ENTIRETY (if copyrighted identify with *)
NO.
Q6IE DESCRIPTION /(PAGE COUNT)
Attachment
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Re: FOIA APPENDIX RECORDS BEING WITHHELD IN THEIR ENTIRETY NO.
DATE DESCRIPTION /(PAGE COUNT)/ EXEMPTIONS i
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