Enformable: “NRC’s inconsistent interpretations and applications of rules governing FOIA releases” plus 1 more |
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Posted: 10 Mar 2014 08:12 AM
PDT
Quantum mechanics imply that
something can be both simultaneously one thing and another until it is
observed. Erwin Shrodinger explained it using a box and a cat. If
you seal the cat in a box, you don’t know what condition the cat is in – dead
or alive, until the box is reopened.
The concerns brought forward in
this article show that in many ways the NRC is still finding it difficult to
understand when something isn’t when it is, and failing to understand the
quantum mechanics of a regulatory agency.
Robert Oppenheimer, father of
the atomic bomb, was never accused of releasing nuclear secrets to Russia
during World War II, when the Russians did not have a nuclear device, but had
his security clearance revoked by the AEC after World War II after being labeled
a security risk – even though the AEC determined that he had an unusual
discretion with secrets. In this instance, the AEC failed to appreciate
that every person, to some extent or another, is a security risk, but the
real test is not an inquisition of that person’s history or political beliefs
as much as it is how they performed in action. Columnist Walter
Lippmann followed the Oppenheimer case and perhaps had the best insight into
the AEC decision when he said, “A strong government would have known how to
use Dr. Oppenheimer’s genius, discounting his political advice. A weak
government, not trusting its own judgment and fearing the impact of his
brilliance, would be justified in terminating his services.”
The documentation provided in
this article show that the NRC could be allowing their fears of the public’s
interpretation of information released to guide their interpretation of the
guidelines which govern the FOIA process, instead of the spirit and letter of
the law. It would appear that a stronger regulator, confident in its
decisions and actions, would have been able to be more open and consistent
with its applications of the rules governing the FOIA process, but a weaker
regulator, unsure of its own actions and fearing the fallout of trust among
the public, could justify taking advantage of the opportunity to keep
critical information from reaching the public.
Inconsistent redactions have
repercussions. If the redactions are justified, then not redacting the
information compromises national security or personal privacy. If the
redactions are unjustified, then redacting the information compromises the
public’s right to know.
Fukushima Daiichi and the FOIA
process
In the wake of the Fukushima
Daiichi nuclear disaster in Japan, members of the media and the public have
been utilizing the Freedom of Information Act to obtain critical information
necessary to develop an understanding of the situation in Japan and how it
relates to our own nuclear fleet in the United States.
My experiences with the NRC and
the FOIA process have led me to be concerned about the Nuclear Regulatory
Commission’s interpretation and application of particularly opaque Freedom of
the Information Act guidelines, specifically related to what materials should
and should not be redacted.
The United States Congress laid
out its expectations in reference to publishing information in the Sunshine
Act: “”It is hereby declared to be the policy of the United States that the public is entitled to the
fullest practicable information regarding the decision-making processes of
the Federal Government.” (Section 2 of Pub. L. 94-409,
September 13, 1976, 5 U.S.C. §552b note.) [Emphasis Added]
According to Nuclear Regulatory
Commission Management Directive 3.4, the
agency’s policy is to make as much information as possible available to the
public relating to its health and safety mission, but in my
experience, I have come across many questionable applications of using
redactions to prevent information from being released to the public.[Emphasis
Added]
The law allows the Nuclear
Regulatory Commission to redact certain information from publicly released
documents when specific conditions are met. The law also allows the Nuclear
Regulatory Commission to withhold releasing entire documents when other
specific conditions are met. But the law does not allow the Nuclear
Regulatory Commission to capriciously redact information and withhold
documents.
During the course of my
investigation into the Fukushima Daiichi nuclear disaster through information
relayed through the FOIA process I came across multiple cases where the same
information which was redacted in some released documents, was not redacted
in others. Many of these issues we have noted contain instances where
entire paragraphs or pages redacted under a single exemption code, which is
not common practice with other redaction protocol at other federal agencies.
The exemption commonly used (or
abused) was Exemption 5, Deliberative process: Disclosure of predecisional
information would tend to inhibit the open and frank exchange of ideas
essential to the deliberative process. Where records are withheld in their
entirety, the facts are inextricably intertwined with the predecisional
information. There also are no reasonably segregable factual portions because
the release of the facts would permit an indirect inquiry into the
predecisional process of the agency.
Additionally, the contacts of
whom received many of the electronic transmissions has been redacted,
although they surely would have included parties which may not have required
redaction, such as departments within the NRC, additional federal agencies,
etc.
For other redactions, the
exception commonly used was Exemption 6: where the withheld information is
exempted from public disclosure because its disclosure would result in a clearly
unwarranted invasion of personal privacy.
As stated above, the question
is not if some recipients were redacted to protect an invasion of personal
privacy, rather why were all of the recipients uniformly redacted when it
could not have been an invasion of personal privacy.
It is difficult to understand
how such broad and swathing of an approach to redaction can be mistaken for
any mechanism, but one which is being used to circumvent discovery
privileges.
I am not the only individual
who has found problems with the Nuclear Regulatory Commission’s approach to
its duties related to the Freedom of Information Act.
Bill Dedman, a reporter for NBC
News, published an article covering the third
anniversary of the Fukushima Daiichi nuclear disaster, the NRC, and FOIA
problems. In his article, Dedman states, “There are numerous examples
in the emails of apparent misdirection or concealment in the initial weeks
after the Japanese plant was devastated by a 9.0 earthquake and 50-foot
tsunami that knocked out power and cooling systems at the six-reactor plant,
eventually causing releases of radioactive material.
On November 13th, 2013,
Senator Barbara Boxer accused the Nuclear Regulatory Commission of
withholding information from Congress, and implementing “controversial and
obstructive” new policies which were specially designed to justify
withholding information from Members of Congress. In a letter addressed
to Chairman Allison M. Macfarlane, Senator Boxer wrote “It is clear that the
changes to the NRC policy work against the interests of Congress and attempt
to undercut constitutional oversight.”
If the NRC is capable of such conduct
with members of Congress, how can we honestly expect to be treated any
different as a member of the public?
In 2007, the Office of the
Inspector General audited the Nuclear Regulatory Commission’s process for
placing documents in the ADAMS public and non-public libraries and to
determine its effectiveness and consistency. This investigation was
launched in response to a public interest group’s letter which relayed only
two specific examples of documents miscoded as non-publicly available when
they should have been publicly released.
In their report the OIG made
the following determinations:
§ The rationale for
placing about 14 percent of the non-public documents and about 17 percent of
the public documents was not clearly articulated in the guidance, and OIG
also identified several specific instances of miscategorized documents.
§ The NRC risks
unnecessarily withholding non-sensitive information, which can undermine
public confidence in NRC as a fair and unbiased regulator.
In summation, the Freedom of Information
Act is a federal law, which requires the Nuclear Regulatory Commission to
make information publicly available under certain circumstances.
Below, I have attached an
appendix, which contains several different examples of questionable
redactions of documents released through the Freedom of Information Act
process.
As clearly evident in the
appendix, the Nuclear Regulatory Commission has been inconsistent in its
redactions and withholdings. By doing so, the Nuclear Regulatory Commission
is clearly violating federal law. It is either not releasing information it
should be making available to the public, or it is releasing information that
should not be publicly released. Given the number of examples cited in the
appendix, it seems likely that the Nuclear Regulatory Commission is erring on
both sides.
In January I sent this
information to Senator Barbara Boxer, respectfully asking her to take actions
necessary to (a) compel the Nuclear Regulatory Commission to fully comply
with its legal obligations under the Freedom of Information Act and (b)
review all of its FOIA classification determinations since March 11, 2011,
and correct all misclassifications.
If after reviewing the
documentation and facts that I have provided, the reader is also concerned
about the NRC’s interpretation and application of rules governing the FOIA
process, I would encourage them to follow-up with their own elected official
or Senator Boxer.
Appendix
Exhibit 1 – Redaction of answers to Bill Dedman’s questions
This is a glaring example of
the difficulties with the FOIA redaction process. Included in the
exhibit are two separate publications of the same e-mail at two different
times. In one version, personal information and agency analysis is
redacted, in the other version the information is not redacted.
In the unredacted version, the attachment file is not included, while in the
redacted version it is included but also redacted.
Exhibit 2 – Agendas largely redacted
The consortium call was often
attended by members from the NRC Ops Center, Naval Reactors, INPO, ERC, DOW,
and an individual named Mike Brown.
Exhibit 3 – Documents shared with international parties
This roadmap document was
shared with the Japanese government, but the release to the public was
completely redacted.
Exhibit 4 – Answers from DOE in response to TEPCO
Redacted from the document are
key questions solicited by Tokyo Electric meant to help improve analysis of
reactor status, long-term passive cooling options, spent-fuel pool analysis,
and wastewater treatment.
This document contains
information drafted by Richard L. Conatser, a Health Physicist at the Nuclear
Regulatory Commission, which was given to the NRC Team in Japan used to
advise the Ambassador’s staff of some of the Health Physics related aspects
of Emergency Planning.
In this communication, the key
summary information which was readily shared and used in the decision-making
process was redacted.
Exhibit 7 – Bruce Watson Communications
Large paragraph-sized
redactions of seemingly casual communication between NRC Branch Chiefs.
Additionally complete slides provided by the Department of Energy and
circulated among the staff of the Nuclear Regulatory Commission wholly
redacted.
A potential redaction of a
publicly available document published by the Department of Energy about Three
Mile Island.
Exhibit 9 – Redaction of NRC Presentation
This is a presentation given at
the All-Hands Meeting on March 23rd, 2011 by an official of the
Nuclear Regulatory Commission which has been redacted.
Exhibit 10 – Redacted Communications
Seemingly casual communication
with paragraph-sized redaction.
Extensive redactions of a
presentation authored by the Japanese Nuclear Energy Safety
Organization. Some of the redactions only cover the names of monitors
and sensors used to determine the temperatures of the reactor pressure
vessel.
Exhibit 12 – Potential Near-Term Options to Mitigate Contaminated Water in Japan’s
Fukushima Daiichi Nuclear Plant
Redaction of an analysis by the
United States Department of Energy of the near-term options to deal with and
mitigate contaminated water at the Fukushima Daiichi Nuclear Power Plant.
Exhibit 13 – Redacted Generic Emails
Exhibit 14 – Redaction of OPA Talking Points
Again, in separate FOIA
collections the same information is redacted. Again the redactions
cover the whole of the text.
Exhibit 15 – Redaction of time-off request
A time off request was
approved, but redacted.
Exhibit 16 – Redaction of material derived from public documents
Exhibit 17 – Redaction of payroll information
Exhibit 18 – Redaction of information shared with industry
Exhibit 19 – Redaction of recommendations shared with industry
Exhibit 20 – Redaction of information released by TEPCO
Exhibit 21 – Sample redacted materials
This exhibit is an example of
redacted materials as provided by the Nuclear Regulatory
Commission. Very specific information is redacted, and often
multiple citations are provided for each redaction. Even with the
redactions, specific information and general usefulness can still be made out
of the remaining materials without infringing upon the privacy rights of
individuals, and little margin for error appears to exist.
Our coverage of information
released through the FOIA process related to the Fukushima Daiichi nuclear
disaster can be found here:
Our FOIA archives feature collected and sorted
FOIA documents, and are sub-categorized by event, topic, importance, and
type.Email chains are extracted and published according to date. Press
releases are archived by date of publication. Presentation materials
and pdfs are summarized and displayed in whole. Each post is titled
with the date of transmission of that particular FOIA combined with the
subject of the message.
The post NRC’s
inconsistent interpretations and applications of rules governing FOIA
releases appeared first on Enformable.
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Posted: 10 Mar 2014 06:22 AM
PDT
A construction supervisor at
the Virgil C. Summer nuclear generating station in South Carolina failed a
random fitness for duty test. The licensee revoked the worker’s access
to the plant.
The facility has one PWR
reactor and is constructing two Westinghouse AP1000 reactors.
Source: NRC Event Notifications
The post Construction
supervisor at V.C. Summer nuclear power plant fails fitness for duty test
appeared first on Enformable.
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audio/video/photo media file: Download Now
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