ML022660449

FOIA/PA-2002-011A (FOIA/PA-2002-0309) Resp 1 Final

ML022660449
Person / Time
Issue date:	10/09/2002
From:	Kane W NRC/OCIO/WPDSD/FOIA
To:	Michael Webb ShawPittman, LLP
References
(FOIA/PA-2002-0309), FOIA/PA-2002-011A
Download: ML022660449 (3)

Text

October 9, 2002Maria D. WebbLegal AssistantIN REPLY REFER Shaw PittmanTO FOIA-2002-011A 2300 N Street, NW(FOIA-2002-0309)

Washington, DC 20037-1128

Dear Ms. Webb:

I am responding to your letter of July 24, 2002, to the Freedom of Information Act /Privacy Act (FOIA/PA) Officer, in which you appealed the agency's June 28, 2002, response to your FOIA request (FOIA 2002-0309). The initial agency response denied in entirety, your FOIA request for the Office of Investigations' (OI) Investigative Procedures Manual (IPM).Acting on your appeal, I have carefully reviewed the record in this case and have determinedthat some information may be made available to you. Therefore, your appeal is partially granted and partially denied. The released portions of the record are enclosed.First, in the agency's initial response, we neglected to inform you that some portions of thedocument are being withheld pursuant to FOIA Exemption 5. The information marked and withheld under Exemption 5 constitutes advice and guidance provided by NRC attorneys to NRC staff on legal matters for which these clients sought professional advice.Second, certain portions of the document that relate to either confidentiality of sources andconsensual monitoring shall continue to be withheld under FOIA Exemption 7(E). Under Exemption 7(E), certain portions of the IPM meet the withholding requirements because they consist of techniques and procedures for law enforcement investigations that are confidential and must remain so to be effective. You correctly point out that for Exemption 7(E) to apply, the procedures sought to be protectedmust not be well known to the public. You note that monitoring (i.e., wiretapping) is a procedure well known to the public. However, several courts have held that if disclosure of techniques known to the public could interfere with their effectiveness, then Exemption 7(E) applies to protect that information. Hale v. Department of Justice, 973 F. 2d 894, 902-03 (10 th Cir. 1992);Bowden v. FDA, 925 F. 2d 1225, 1228 (9 th Cir. 1991); LaRouche v. United States Dep't of Justice, No. 90-2753, slip op. at 21 (D.D.C. Nov. 17, 2000). Accordingly, the manualprovisions that cover confidentiality of sources and consensual monitoring fall within this category of protected information and they will be withheld under Exemption 7(E). Third, you have also asserted that withholding the OI IPM does not meet the foreseeable harmstandard. However, this standard is no longer applicable, and has been superceded by a

ML022660449 ADAMS TITLE: FOIA/PA 2002-011AOFFICEOCIO/FOIA/PAEDITOROCIO/FOIA/PAOINAME NBrown /RA/PKleene /RA/CAReed /RA/GCaputo /RA/DATE09/17/0209/17 /0209/ 23/0209/24/02OFFICEOGCOEDONAMEDHassellWFKaneDATE09/24/0210/03/02 / /02 / /02 (FOIA-2002-0309)APPENDIX RECORD BEING WITHHELD IN PART NO. DATEDESCRIPTION/(PAGE COUNT)/EXEMPTIONS1.8/99Office of Investigations

' Investigative Procedures Manual(approximately 156 pages) (EX. 5 and EX. 7E)