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, 2002 Maria D. Webb Legal Assistant IN REPLY REFER Shaw Pittman TO 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 agencys 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 determined that 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 agencys initial response, we neglected to inform you that some portions of the document 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 and consensual 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 protected must 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 (10th Cir. 1992);

Bowden v. FDA, 925 F. 2d 1225, 1228 (9th Cir. 1991); LaRouche v. United States Dept of Justice, No. 90-2753, slip op. at 21 (D.D.C. Nov. 17, 2000). Accordingly, the manual provisions 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 harm standard. However, this standard is no longer applicable, and has been superceded by a

ML022660449 ADAMS TITLE: FOIA/PA 2002-011A OFFICE OCIO/FOIA/PA EDITOR OCIO/FOIA/PA OI NAME NBrown /RA/ PKleene /RA/ CAReed /RA/ GCaputo /RA/

DATE 09/17/02 09/17 /02 09/ 23/02 09/24/02 OFFICE OGC OEDO NAME DHassell WFKane DATE 09/24/02 10/03/02 / /02 / /02 (FOIA-2002-0309)

APPENDIX RECORD BEING WITHHELD IN PART NO. DATE DESCRIPTION/(PAGE COUNT)/EXEMPTIONS

1. 8/99 Office of Investigations Investigative Procedures Manual (approximately 156 pages) (EX. 5 and EX. 7E)