ML25065A024
| ML25065A024 | |
| Person / Time | |
|---|---|
| Issue date: | 03/05/2025 |
| From: | Scott Flanders NRC/OCIO |
| To: | Levinthal D - No Known Affiliation |
| Shared Package | |
| ML25065A020 | List: |
| References | |
| APP-2025-000004, FOIA-2025-000154 | |
| Download: ML25065A024 (1) | |
Text
UNITED STATES NUCLEAR REGULATORY COMMISSION WASHINGTON, D.C. 20555-0001 March 5, 2025 IN RESPONSE REFER TO:
APP-2025-000004 FOIA-2025-000154 Sent via e-mail to: dave@davelevinthal.com Dave Levinthal 4842 Eastern Avenue, NE Washington, D.C. 20017
Dear Dave Levinthal:
I am responding to your e-mail dated February 4, 2025, in which you appealed the U.S. Nuclear Regulatory Commissions (NRC)s February 4, 2025 no record response to your November 26, 2024, Freedom of Information Act (FOIA) request, FOIA-2025-000154. Your appeal asked the NRC to determine whether any responsive records were improperly withheld, overlooked, or not otherwise included in the NRCs initial response.
Acting on your appeal, I considered the matter and have decided to grant your appeal, in part.
Upon the FOIA Offices receipt of your request, the assigned analyst reached out to you to clarify the scope of your request. At that time, you agreed to limit the universe of responsive records to any e-mails containing the four pejorative words enumerated in your request only if any of the other 19 words1 appeared. You further narrowed the scope of your request to exclude newsletters or other publications circulated to NRC recipients if such transmittals were not accompanied by any commentary. Finally, you acknowledged that your request was submitted in furtherance of reporting you were doing about government officials reactions to the result of the 2024 Presidential election in its immediate aftermath.
The NRC conducted a search in accordance with these clarifications and initially located 19 pages of potentially responsive e-mail records. To determine whether these e-mails were agency records subject to the FOIA, the NRC considered whether the e-mails were created by an agency employee on government time, with agency materials, and at agency expense; whether the e-mails contained personal information versus official business information; the extent to which they were used for official business or distributed to anyone for an official business purpose (and if so, how widely distributed); whether they were placed into an official agency filing system; and whether the author of any e-mail was free to dispose of the record at their discretion.
1 These four words were: bitch, fuck, fucked, and shit. The 19 words were: Donald, Trump, Kamala, Musk, Elon, DJT, D.J.T., MAGA, fascist, fascism, authoritarian, authoritarianism, autocrat, dictator commie, deep state, swamp, Project 2025 and J6.
Levinthal, Dave Based on the weighing of these factors, the NRCs FOIA Officer made the determination that the e-mails did not constitute agency records but were instead personal records not subject to the FOIA. The e-mails were solely between or among agency staff members reflecting their own personal views and not for a business purpose. The e-mails were not entered into the NRCs official record repository, ADAMS. The author and recipient(s) were free to dispose of the e-mail at their personal discretion. The agency did not require the author to create the e-mail, nor did NRC policy require that the e-mail be retained once created.
Upon consideration of your appeal, I have determined that a small subset of these emails is at least arguably created for an official business purpose and thus can reasonably be considered agency records and released with personally identifiable information redacted under FOIA exemption 6, 5 U.S.C. 552(b)(6), for personal privacy reasons. The remainder of the e-mails are regarded as personal records not attributable to the agency and are not being provided.
This is the final agency decision. As set forth in the FOIA (5 U.S.C. 552(a)(4)(B)), you may seek judicial review of this decision in the district court of the United States in the district in which you reside or have your principal place of business. You may also seek judicial review in the district in which the agencys records are situated or in the District of Columbia.
The 2007 FOIA amendments created the Office of Government Information Services (OGIS) to offer mediation services to resolve disputes between FOIA requesters and Federal agencies as a nonexclusive alternative to litigation. Using OGIS services does not affect your right to pursue litigation. You may contact OGIS in any of the following ways:
Office of Government Information Services National Archives and Records Administration 8601 Adelphi Road-OGIS College Park, MD 20740 E-mail: ogis@nara.gov Telephone: 202-741-5770 Toll-free: 1-877-684-6448 Fax: 202-741-5769 Sincerely, Digitally signed by SCOTT SCOTT FLANDERS FLANDERS Date: 2025.03.05 08:58:22 -05'00' Scott C. Flanders Chief Information Officer Office of the Chief Information Officer
Enclosures:
As stated