UNITED STATES

NUCLEAR REGULATORY COMMISSION

WASHINGTON, D.C. 20555-0001

OFFICE OF THE

INSPECTOR GENERAL

August 18, 2015

MEMORANDUM TO: Mark A. Satorius

Executive Director for Operations

FROM: Stephen D. Dingbaum /RA/

Assistant Inspector General for Audits

SUBJECT: EVALUATION OF INVOLVEMENT OF POLITICAL 

APPOINTEES IN NRC’S FOIA PROCESS (OIG-15-A-18)

The Office of the Inspector General (OIG) conducted this evaluation to analyze noncareer officials' (political appointees) involvement in the Freedom of Information Act 

(FOIA) response process at the agency, if any, for the period of January 1, 2007, to the 

present. OIG initiated the evaluation in response to a request dated June 23, 2015, 

from Senator Ron Johnson, Chairman, U.S. Senate Committee on Homeland Security 

and Governmental Affairs. A copy of the letter request is attached to this report.

OIG found no evidence of inappropriate involvement by Nuclear Regulatory 

Commission (NRC) political appointees in the FOIA responses, nor evidence of 

involvement that resulted in undue delay or withholding of any document. Therefore, 

OIG makes no recommendations. I have also attached a certification from the Chief 

FOIA Officer that there was “no undue delay” by the Commission in responding to a 

FOIA request. This report presents OIG’s evaluation results and methodology.
Evaluation of Involvement of Political Appointees in NRC’s FOIA Process

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FOIA Inquiry From U.S. Senate

On June 23, 2015, the U.S. Senate Committee on Homeland Security and 

Governmental Affairs (the Committee) advised the NRC Inspector General that it 

is conducting oversight of how Executive Branch departments and agencies 

respond to FOIA requests, in part to ensure that Government officials do not 

interfere with the FOIA process to inhibit transparency. 

Thus, the Committee requested that NRC OIG

 Analyze non-career officials’ involvement in NRC’s FOIA response process, if 

any, for the period of January 1, 2007, to the present. 

 If non-career officials were involved in the FOIA response, analyze whether 

their involvement resulted in any undue delay of a response to a FOIA 

request or the withholding of any document or portion of any document that 

would have otherwise been released but for the non-career official’s 

involvement in the process. 

 Provide further information to the Committee if OIG’s analysis shows undue 

delay or withholding by a non-career official. 

 Seek written certification from NRC’s chief FOIA officer that (a) no non-career 

officials were involved in any FOIA request or (b) if such involvement 

occurred, it has never resulted in undue delay of a response to any FOIA 

request or the provision of less information than would have been provided 

but for the involvement of the non-career officials. 

The Freedom of Information Act 

FOIA1is a Federal law that provides any person the right to submit a written 

request for access to records of information maintained by the Federal 

Government. In response to such written requests, 

 

1 5 U.S.C. § 552, As Amended The Freedom of Information Act. 

 BACKGROUND
Evaluation of Involvement of Political Appointees in NRC’s FOIA Process

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Federal agencies must disclose the requested records, unless they are protected 

from release under one of the nine FOIA statutory exemptions.2 FOIA mandates 

that all agencies shall readily promulgate information, agency rules, opinions, 

orders, records, and proceedings to the public. 

In 2009, President Barack Obama and U.S. Attorney General Eric Holder issued 

memoranda on the FOIA. These statements of FOIA policy emphasize that the 

FOIA "should be administered with a clear presumption: in the face of doubt, 

openness prevails."

NRC Implements the FOIA

NRC’s FOIA requirements are conveyed in the Code of Federal Regulations 

under Title 10, Part 9, Subpart A, “Freedom of Information Act Regulations.” 

NRC Management Directive and Handbook 3.1, “Freedom of Information Act,” 

provides guidance on NRC’s FOIA policy and implementation of the FOIA 

process. NRC also maintains an internal and a public Web site with FOIA 

information. 

The FOIA process begins when the agency (1) receives – via mail, facsimile, or 

Internet – an incoming FOIA request, (2) assigns it a number, and (3) determines 

which NRC offices need to review their records to identify whether they have 

information pertinent to the request and sends the request to those offices. FOIA

specifies that the response must be issued within 20 business days. However, 

the law allows additional time for requests that require more extensive document 

search and consideration. 

NRC designates FOIA requests as “simple” or “complex.” Complexity may result 

from multiple NRC offices having responsive records, a large volume of records 

resulting from a search, or from consultation with other Federal agencies that 

have an interest in the information. Complex requests are more likely to require 

additional time. 

FOIA Response Process

Regardless of the type of request, each follows a similar path through the 

agency. Figure 1 presents simplified common processing steps.

 

2 See 10 C.F.R. §9.17, Agency records exempt from public disclosure, for a list of the nine statutory 

exemptions. 
Evaluation of Involvement of Political Appointees in NRC’s FOIA Process

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Figure 1: Simplified FOIA Process Flowchart 

Source: OIG

The responsive office(s) must identify records and make determinations about 

release based on the statutory exemption categories. For a complex request, 

multiple offices with responsive records will follow this process at the same time. 

The resulting records have duplicate copies removed. Documents in which 

multiple offices have an interest are referred to the other offices for their 

disclosure recommendation. For both simple and complex requests, the FOIA 

office conducts a final review of the response package to ensure appropriate 

disclosure or exemption before release to the requester.

Publically available responses are then placed into NRC’s Agencywide 

Documents Access and Management System3 and are linked through the NRC 

public Web site. However, the NRC records retention requirement for FOIA

request processing records is only 6 years. Summary data on FOIA requests is

available from FOIA.gov for complete years beginning in 2008. 

Numbers of FOIA Requests at NRC 

From 2007 through 2014, NRC received a total of 2,995 FOIA requests, or an 

average of 333 per year. From 2008 to 2014,

4 1,484 were simple requests, and 

965 were complex requests. The proportion of complex requests has grown 

steadily, from 28 out of 360 total requests in 2008, to 306 out of 485 total

 

3 Responses to Privacy Act requests for the requester’s own documents, and investigative materials, are 

not placed in ADAMS.

4 Breakout of simple, complex, and expedited requests is not available for 2007 or 2015.
Evaluation of Involvement of Political Appointees in NRC’s FOIA Process

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requests in 2014. The increase in complexity has led to increased time and cost

for those responses. The following table presents summary data available on 

NRC FOIA requests since 2007.

Total NRC FOIA Requests, 2007 to 2015

Fiscal 

Year

Simple 

Requests

Complex 

Requests

Expedited 

Requests5

Total 

NRC

Total 

Commission6

Total 

Secretary of 

the 

Commission5

# of 

requests

# of 

requests

# of 

requests

# of 

requests # of requests # of requests

20077

--- --- --- 341 --- 36

2008 332 28 0 360 --- 38

2009 265 32 0 297 --- 27

2010 273 70 0 343 --- 38

2011 237 79 1 317 28 81

2012 115 175 3 293 32 66

2013 94 275 1 370 95 112

2014 168 306 11 485 50 78

20157

--- --- --- 189 35 63

Total >1,484 >965 >16 2,995 >240 539

Avg: 212 138 2 333 48 60

Source: FOIA.gov, NRC.gov, NRC data

NRC Appointed Officials

The NRC’s Commission consists of five members nominated by the President and 

confirmed by the U.S. Senate for staggered 5-year terms. The President designates

one member to serve as Chairman, principal executive officer, and spokesperson of the 

Commission. The Commission formulates policies, develops regulations governing 

nuclear reactor and nuclear material safety, issues orders to licensees, and adjudicates 

legal matters. The Chairman and Commissioners are the only “non-career” officials or 

 

5 Under special circumstances, NRC may also designate FOIA requests “expedited.” 

6 The Commission began maintaining a separate electronic log in 2012, containing information beginning 

in 2011. Prior to 2011, the reports tasked to the Secretary of the Commission include those for the 

Commissioners’ offices. 

7 Breakout of simple, complex, and expedited requests is not available for 2007 or 2015. The 2015 total 

is through July, 15, 2015.
Evaluation of Involvement of Political Appointees in NRC’s FOIA Process

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political appointees at NRC covered by this evaluation.8 The Commissioners and the

Secretary of the Commission have been tasked with 539 of the total FOIA requests 

received at NRC since 2007.

The evaluation objective was to analyze non-career officials' (political appointees)

involvement in the FOIA response process at the agency, if any, for the period of

January 1, 2007, to the present, and analyze whether any such involvement resulted in 

any undue delay or the withholding of any document or portion of any document that 

would have not occurred if they were not involved. The final section of this report 

discusses the scope and methodology used in the evaluation.

Non-Career Officials Do Not Delay or Withhold NRC FOIA Responses

NRC has processes and procedures in place to respond to FOIA requests in 

accordance with Federal requirements and to fulfill the agency’s own goal of maximizing 

the amount of information that is disclosable. According to the published processes, 

non-career officials become involved when their offices have ownership of responsive 

records. Their involvement remains within published NRC procedures and does not 

contribute to undue delays or reduced releases of information.

 

8 The Inspector General is also nominated by the President and confirmed by the U.S. Senate. However, 

the role of the inspector General in FOIA responses, was scoped out of this evaluation to maintain 

independence. Further, individual Commissioner’s staff may include non-career members. Although they 

are not political appointees, their activities to support Commission responses to FOIA requests are 

covered by this evaluation. 

 OBJECTIVE

 EVALUATION RESULTS
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FOIA Requirements Apply to Non-Career NRC Officials

The FOIA statute includes a range of ways that agencies should provide information to 

the public. What are known as “FOIA requests” derive from Section 3(A), which states

[E]ach agency, upon any request for records which (i) reasonably 

describes such records and (ii) is made in accordance with published 

rules stating the time, place, fees (if any), and procedures to be followed, 

shall make the records promptly available to any person.

NRC has published its Freedom of Information Act rules in Title 10 of the Code of 

Federal Regulations, Part 9, Subpart A. Management Directive and Handbook 3.1,

”Freedom of Information Act,” provides guidance for the public and NRC staff regarding 

NRC policy and procedures to implement FOIA. In addition, NRC uses its public Web 

site to make available specific information about how to submit requests for information 

and how requests will be processed.

NRC FOIA regulations provide for the Offices of the Commission and the Secretary to 

the Commission (SECY), as well as the Inspector General, the General Counsel, and 

Advisory Committees, to make independent determinations on release of their own 

records. The Commission operates according to published Internal Commission 

Procedures, which address how Commission offices and SECY will respond to FOIA 

requests. The procedures dovetail with overall agency procedures and relate primarily 

to Commission-generated documents. In part, the Commission procedures state

 SECY forwards a request for responsive records to the affected Commissioners. 

 Commission offices will search for and review responsive documents, and reply to 

SECY within the 20 business day statutory time frame.

 Individual Commission offices make their own determinations to release or withhold 

documents.

 SECY also conducts a search for responsive documents and a release or withhold 

determination. The results are reviewed by the Office of the General Counsel, and 

the Commissioners are consulted before release is made. 

What Is Required
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Appointee Involvement Falls Within Published Procedures

Interviews with Commission staff and review of Commission FOIA files reveal how FOIA 

responses occur under Commission procedures. 

Commissioners become involved in two types of requests – those for Commissiongenerated documents, and referral packages from other offices whose searches 

produce documents related to the Commission. 

Commission-generated documents may come from the office of an individual 

Commissioner or from the Commission as a whole. Individual Commissioners have 

authority to make determinations about their own records, typically concurring on 

recommendations from their legal assistants.

9

 However, Commissioner staff noted that 

responsive records belonging wholly to a single Commissioner are rare. More common 

are documents in which the entire Commission has ownership, and Commissioners are 

polled to reach a consensus. Staff members could recall no case where 

Commissioners could not agree, resulting in a delay in responding to the request.

Commission staff also discussed the Commissioners’ role in reviewing response 

packages referred from NRC program offices. In these cases, the searching office has 

identified the records, reviewed for material that should be withheld, and marked it with 

appropriate exemptions. Guidance for NRC staff states that NRC offices should make 

release recommendations prior to referring any responsive documents to the 

Commission. Before the package is sent to the FOIA office for eventual release, the 

Commissioners have an opportunity to review staff recommended determinations and 

ask questions. Staff members for all Commissioners observed that when 

Commissioners question a staff-recommended exemption in a document originating in a 

program office, it is normally in favor of a discretionary release. In other words, 

Commissioners do not review referrals to apply additional exemptions; rather, they 

review to confirm appropriateness of staff recommendations. 

Commissioner FOIA logs and response files record the steps in these processes, from 

when the request is received and assigned, through concurrence on the responsive 

documents found, if any, and the return of the package to NRC’s FOIA office. Because 

not all responsive documents originating in NRC program offices are referred to the 

 

9 The Commissioners and the Office of the Secretary may also consult with the Office of the General 

Counsel. 

What We Found
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Commission, Commission review is an additional step for some packages. However, 

review of files shows that Commission review does not appear to add unduly to the time 

required for responses. Such referral packages are more likely to come from complex 

requests, whose response generally takes longer. 

No Interference in FOIA Responses From Non-Career Officials

As a result of this evaluation, OIG concludes that involvement of NRC’s non-career, 

politically-appointed officials in FOIA responses is appropriate. While OIG’s 2014 audit 

of NRC FOIA processes identified areas in which effectiveness and efficiency could be 

improved, the issues identified exist outside of any role of the Commissioners in the 

response process.

An exit conference was held with the agency on August 14, 2015. Prior to this meeting, 

after reviewing a discussion draft, agency management provided comments that have 

been incorporated into this report, as appropriate. As a result, agency management 

stated their general agreement with the conclusions in this report and opted not to 

provide formal comments for inclusion in this report.

Scope

NRC currently has five political appointees confirmed by the U.S. Senate: the 

Chairman, the Commissioners, and the Inspector General.10 The Inspector General’s

 

10 NRC currently has a vacant Commissioner position – when that is filled, NRC will have six political 

appointees.

Conclusion

 AGENCY COMMENTS

 SCOPE AND METHODOLOGY
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role in responding to FOIA requests relates only to OIG, and this role was excluded 

from this evaluation to maintain independence. 

The inquiry of the Senate Committee on Homeland Security and Governmental Affairs 

requested a review of FOIA responses beginning in 2007. However, NRC records 

retention requirements entail only 6 years for the maintenance of records regarding 

withheld information. Therefore, prior to 2008, only publicly released closed responses

are available as a record, and the scope of this review had to be narrowed to Fiscal 

Year 2008 to the present.11

Methodology

To respond to the Committee’s request within the required timeframe, OIG reviewed two 

prior NRC OIG reports related to FOIA processes:

 OIG-10-A-19, “Memorandum Report: Evaluation of NRC's FOIA Process.”

 OIG-14-A-17, “Audit of NRC's Freedom of Information Act Process."

To determine what is required for processing FOIA requests at NRC, OIG reviewed the 

following criteria and guidance documents: 

 The Freedom of Information Act, 5.U.S.C. § 552 and any amendments, including 

E-FOIA.

 NRC’s regulations at Title 10, Code of Federal Regulations, Section 9.25.

 January 21, 2009, Memorandum from the President for the Heads of Executive 

Departments and Agencies on FOIA.

 March 19, 2009, Memorandum for Executive Departments and Agencies from 

the Attorney General on FOIA.

 NRC’s FOIA Guide.

 

11 The review of FOIA records from 2008 – present included those reviewed by the current Chairman and 

Commissioners, as well as former Chairmen Klein, Jaczko, and Macfarlane, and former Commissioners 

Apostolakis and Magwood.
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 NRC’s Management Directive and Handbook 3.1 “Freedom of Information Act.” 

 Office of Government Ethics regulations (Title 5, Code of Federal Regulations, 

Section 2636.03) on the definition of a “covered non-career employee.” 

To analyze the involvement of non-career, politically appointed officials at NRC in FOIA 

processes OIG

 Reviewed a list compiled by NRC’s Office of the Chief Human Capital Officer of 

NRC non-career individuals since January 1, 2007. 

 Interviewed staff members of the current NRC Chairman and Commissioners.

 Reviewed a sample of Commission FOIA responses representing the lengthiest 

response times for the 6 years for which records are available.

 Analyzed statistics reported to the Department of Justice regarding NRC’s FOIA 

program since 2008, including types of requests and timeliness of agency 

responses.

This evaluation was conducted in accordance with the “Quality Standards for Inspection 

and Evaluation."

The evaluation was performed by Beth Serepca, Team Leader; Kristen Lipuma, Audit 

Manager; Amy Hardin, Senior Auditor; and Andrew Pham, Student Analyst.
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 ATTACHMENT 1
Evaluation of Involvement of Political Appointees in NRC’s FOIA Process

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Evaluation of Involvement of Political Appointees in NRC’s FOIA Process

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Evaluation of Involvement of Political Appointees in NRC’s FOIA Process

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 ATTACHMENT 2
Evaluation of Involvement of Political Appointees in NRC’s FOIA Process

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