NRC’s inconsistent interpretations and applications of rules governing FOIA releases

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Fukushima Daiichi March 11th, 2011

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.

See Also: Handling of Fukushima FOIAs drawing questions about omissions and timeliness

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.

Exhibit 5 – Comparison of intervention levels for different countries

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.

Exhibit 6 – PMT request of realistic up-to-date estimation of source terms

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.

Exhibit 8 – Document search DOE doc EGG-M-09386 CONF-860724-14

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.

Exhibit 11 – Redacted Presentation from Nuclear Energy System Safety Division of JNES

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.

FOIA Archives

Fukushima FOIA Data

FOIA’s Related to Radiation Levels From Fukushima Daiichi

FOIA Documents Related to Fukushima Daiichi Reactor 1

FOIA Documents Related to Fukushima Daiichi Reactor 2

FOIA Documents Related to Fukushima Daiichi Reactor 3

FOIA Documents Related to Fukushima Daiichi Reactor 4

 

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