Evaluation of NRC’s FOIA Process

full denial of records, notification that the requested information is already
publicly available, or communication that no relevant records were identified.
Each week, the FOIA section prepares a Weekly Information Report that lists
incoming FOIA requests for distribution to Office of Information Services
management and the Office of the Executive Director for Operations. This
weekly listing of incoming FOIA requests is also posted on NRC’s public Web
site. Information on completed FOIA requests is posted on NRC’s public Web
site and often includes the specific information NRC provided to the requester.
Some information on requests and responses is also available in NRC’s
Agencywide Documents Access and Management System (ADAMS).°

When a FOIA request is received from the media, the FOIA section sends a copy
to the Office of Public Affairs. This practice is documented in Handbook 3.1.
According to an Office of Public Affairs manager who reviews this notification, the
purpose of this notification is informational, and the Office of Public Affairs
sometimes uses it to alert regional or headquarters public affairs officers that the
media may contact them about a particular issue; however, the Office of Public
Affairs does not communicate it to any of NRC’s political appointees.

NRC Political Anpointees and the FOIA Process

According to FOIA section staff and managers, the FOIA section does not notify
political appointees of incoming FOIA requests, NRC political appointees do not
contact the FOIA section with questions about requests or requesters, and NRC
political appointees do not review agency FOIA responses before they are sent
out. When a FOIA request is assigned to the Chairman’s and/or Commissioners’
Offices (because records originally generated by the Chairman and/or
Commissioners’ offices, or records that had previously been submitted to the
Commission, fall within the scope of the FOIA request), this is coordinated
through the Office of the Secretary (SECY) FOIA coordinator. The SECY FOIA
coordinator, in turn, sends a request to the Chairman’s and/or Commissioners’
legal assistants who coordinate the response process in their respective offices
and provide their offices’ disclosure recommendations to SECY.

OIG staff interviewed NRC’s 10 political appointees concerning their involvement
in the FOIA process. Each appointee said they are informed by staff in their

5 According to a FOIA section manager, documents for the following requests are not made
publicly available: (1) requests concerning allegations and investigations (other than third-party
requests), (2) OIG records, (3) individuals seeking information about themselves (e.g., personnel
file, security investigations), and (4) requests for certain databases that are subject to daily
change.

4


Electronic Distribution

Edwin M. Hackett, Executive Director, Advisory Committee
on Reactor Safeguards
E. Roy Hawkens, Chief Administrative Judge, Atomic Safety
and Licensing Board Panel
Stephen G. Burns, General Counsel
Brooke D. Poole, Director, Office of Commission Appellate Adjudication
James E. Dyer, Chief Financial Officer
Hubert T. Bell, Inspector General
Margaret M. Doane, Director, Office of International Programs
Rebecca L. Schmidt, Director, Office of Congressional Affairs
Eliot B. Brenner, Director, Office of Public Affairs
Annette Vietti-Cook, Secretary of the Commission
R. William Borchardt, Executive Director for Operations
Michael F. Weber, Deputy Executive Director for Materials, Waste,
Research, State, Tribal, and Compliance Programs, O0EDO
Darren B. Ash, Deputy Executive Director
for Corporate Management, OEDO
Martin J. Virgilio, Deputy Executive Director for Reactor
and Preparedness Programs, OEDO
Nader L. Mamish, Assistant for Operations, OEDO
Kathryn O. Greene, Director, Office of Administration
Patrick D. Howard, Director, Computer Security Office
Roy P. Zimmerman, Director, Office of Enforcement
Charles L. Miller, Director, Office of Federal and State Materials
and Environmental Management Programs
Cheryl L. McCrary, Director, Office of Investigations
Thomas M. Boyce, Director, Office of Information Services
James F. McDermott, Director, Office of Human Resources
Michael R. Johnson, Director, Office of New Reactors
Catherine Haney, Director, Office of Nuclear Material Safety
and Safeguards
Eric J. Leeds, Director, Office of Nuclear Reactor Regulation
Brian W. Sheron, Director, Office of Nuclear Regulatory Research
Corenthis B. Kelley, Director, Office of Small Business and Civil Rights
James T. Wiggins, Director, Office of Nuclear Security
and Incident Response
Marc L. Dapas, Acting Regional Administrator, Region |
Luis A. Reyes, Regional Administrator, Region II
Mark A. Satorius, Regional Administrator, Region III
Elmo E. Collins, Jr., Regional Administrator, Region IV


Evaluation of NRC’s FOIA Process

SCOPE AND METHODOLOGY

Auditors reviewed Management Directive and Handbook 3.1, an NRC FOIA
training guide, and FOIA information on NRC’s Web site to learn about the
agency's FOIA process and help determine whether and what role political
appointees have in reviewing FOIA requests or FOIA responses.

Auditors interviewed Office of Information Services managers responsible for the
FOIA program and FOIA section staff to determine whether they notify political
appointees about incoming FOIAs and whether political employees ever contact
them to seek information about FOIA requests or requesters, or review
responses to requesters. Auditors interviewed NRC’s 10 political appointees to
understand their roles in the FOIA process. Auditors interviewed SECY officials
to understand SECY’s role in coordinating FOIA requests assigned to the
Chairman's and/or Commissioners’ offices and Office of Public Affairs officials to
learn what is done when the FOIA section notifies the Office of Public Affairs
about a media FOIA request.

OIG reviewed 75 of 926 RFD files for FY 2010 FOIA requests completed as of
August 30, 2010, for any evidence that political appointees inappropriately
involved themselves in the FOIA process. This sample of FOIA files were those
that took the longest response times and included files from every NRC office
that responded to a FOIA during FY 2010. Because 9 of the 10 political
appointees work in the Offices of the Chairman and Commissioners, and SECY
coordinates FOIA responses for those offices, OIG included 16 SECY FOIA files
in its file review. Two OIG FOIA files were also included in the file review.

This evaluation was conducted at NRC headquarters from August 27, 2010, to
September 14, 2010. This work was performed by Steven Zane, Deputy
Assistant Inspector General for Audits; Judy Gordon, Quality Assurance
Manager; and Michael Steinberg, Senior Auditor.


Evaluation of NRC’s FOIA Process

office about FOIA requests assigned to their office for response, but are not
informed about FOIAs assigned to other offices for response. The NRC
Chairman and the Inspector General said that occasionally they receive FOIA
requests addressed to them in the mail; however, both said they refer these to
others in their office to ensure the request goes through the proper channels.

All appointees said they are not involved in reviewing other offices’ FOIA
responses to the FOIA section, or NRC’s FOIA response to requesters. Several
appointees described varying types of oversight of their respective office’s FOIA
compilation before it is sent to the FOIA section. Their reasons for conducting
such oversight were to ensure the compilation is responsive to the request and
and generally to be aware of the materials that are sent.

OIG staff reviewed 75 FOIA files® for FOIAs that were completed during FY 2010;
none contained any documentation to indicate that political appointees had
communicated questions about requests or requesters, or reviewed FOIA
responses prior to their transmittal.

AGENCY COMMENTS

OIG provided NRC with a discussion draft version of this report, and on
September 16, 2010, NRC’s OIG Liaison communicated that the agency was in
general agreement with the report finding and would not provide formal
comments. The agency provided editorial suggestions, which OIG incorporated,
as appropriate, into this final version of the report.

° Files selected for review were primarily those with the longest response times.
5


Thank you for your cooperation and attention to this important matter. If you
have any questions, please do not hesitate to contact Christopher Armstrong for the
Committee on Finance at (202) 224-4515 or Jonathan Skladany for the Committee on
Oversight and Government at (202) 225-5074. All formal correspondence should be sent
electronically in PDF format to Brian_ Downey@finance-rep.senate.gov or via facsimile
to (202) 228-2131.

Sincerely,

Charles E. Grassley Darre a

Ranking Member Member

U.S. Senate Committee on Finance | Committee on Oversight and Government Reform
United States House of Representatives


UNITED STATES

NUCLEAR REGULATORY COMMISSION
WASHINGTON, D.C. 20555-0001

OFFICE OF THE
INSPECTOR GENERAL

September 17, 2010

The Honorable Charles E. Grassley
Ranking Member

U.S. Senate Committee on Finance
135 Hart Senate Office Building
Washington, DC 20510-1501

The Honorable Darrell Issa

Ranking Member

Committee on Oversight and Government Reform
U.S. House of Representatives

2157 Rayburn House Office Building

Washington, DC 20515-6143

Dear Senator Grassley and Representative Issa:

1 am writing in response to your August 23, 2010, letter requesting that | undertake an inquiry
into the U.S. Nuclear Regulatory Commission’s (NRC) Freedom of Information Act (FOIA) office
to determine whether and, if so, the extent to which NRC political appointees are made aware of
FOIA information requests and have a role in reviewing requests or decisionmaking.

My staff conducted an evaluation of this issue and did not identify any evidence that NRC’s
FOIA process includes any type of political review’ by NRC political appointees of FOIA
requests or responses. To reach this conclusion, my staff reviewed applicable FOIA guidance;
interviewed NRC’s political appointees, FOIA caseworkers, and other staff involved with the
FOIA process; and reviewed FOIA files. The attached evaluation report contains additional
information on the evaluation finding, scope, and methodology.

Thank you for your support for a responsive and open FOIA process. If you have any
questions, please contact me at 301-415-5930, or Stephen D. Dingbaum, Assistant Inspector
General for Audits, at 301-415-5915
Sincerely,
Nb T. Bell ete
Inspector General

Enclosure: As stated

‘ For purposes of this evaluation, OIG defined political review as an attempt, by a political appointee to
inquire about the background of a FOIA requester and/or delay disclosures deemed too politically
sensitive.


Attachment

Congress of the Anited States
Gashington, BEC 20510

August 23, 2010
Via Electronic Transmission

The Honorable Hubert Bell
Inspector General

Office of the Inspector General
Nuclear Regulatory Commission
Rockville, MD 20852

Dear Inspector General Bell:

According to recent press reports, the Department of Homeland Security (DHS)
under Secretary Janet Napolitano has impeded Freedom of Information Act (FOIA)
requests by creating a new layer of political review. Specifically, the Associated Press
reported that DHS political appointees required requests from “lawmakers, journalists,
activist groups or watchdog organizations... to go to the political appointees” for review,
and they routinely probed “for information about the requesters and delay[ed] disclosures
deemed too politically sensitive.”' In the case of requests from Congress, DHS
employees were told to specify the party affiliation of the requester.

This new layer of political review is not only alarming, but a betrayal of President
Obama’s pledge to increase transparency in government. The President campaigned for
office on a promise to “return government to the people by bringing government to the
people,” and make government “ open and transparent so that anyone can see that our
business is the people’s business.” It appears that not everyone in the Administration
has taken this pledge to heart. We write to you today to inquire about the full breadth of
this practice, and whether the Nuclear Regulatory Commission is also engaged in the
political filtering of information requests.

As the Inspector General of the Nuclear Regulatory Commission, we request that
you conduct an inquiry into the agency’s FOIA office to determine whether, and if so, the
extent to which political appointees are made aware of information requests and have a
role in request reviews or decision-making. We also request that you provide us an
account of your findings by no later than September 17, 2010.

' Ted Bridis, AP IMPACT: A Political Filter for Info Requests, ASSOCIATED PRESS, Jul. 21, 2010, available at
http://www, washingtonpost.com/wp-dyn/contenvarticle/2010/07/21/AR2010072103534.html.

? Senator Barack Obama, Remarks at Manchester, New Hampshire (June 22, 2007).


Evaluation of NRC’s FOIA Process

NRC Management Directive and Handbook 3.1, “Freedom of Information Act,”
provides guidance on NRC’s FOIA policy and implementation of the FOIA
process. MD 3.1 was last revised on March 30, 2006. The FOIA section also
maintains an internal Web site with FOIA information available to staff.

NRC currently has 10 political appointees: the Chairman, 4 Commissioners, 4
Office of the Chairman staff members, and the Inspector General.>

PURPOSE

The evaluation objective was to determine whether and, if so, the extent to which
NRC political appointees are made aware of FOIA information requests and have
a role in reviewing requests or decisionmaking. This evaluation was conducted
in response to an August 2010 congressional request and was not included in
OIG’s FY 2010 Annual Plan.

RESULTS
FOIA Process

The FOIA process begins when the FOIA section (1) receives — via mail,
facsimile, or Internet — an incoming FOIA request, (2) assigns it a number, (3)
determines which NRC offices need to review their records to identify whether
they have information pertinent to the request and sends an RFD to those
offices, and (4) FOIA coordinators‘ in those offices provide an estimate of the
search, review, and duplication effort required to produce any documents
identified as within the scope of the request.

The FOIA section then estimates the associated processing fees (for which the
requester is often responsible), reaches agreement with the requester on
payment, and assigns the request to the appropriate offices to identify and
provide to the FOIA section all relevant documents from their office within an
assigned timeframe. To facilitate appropriate disclosure of records, the FOIA
caseworkers consult as needed with agency staff in the responding offices and/or
the Office of the General Counsel to prepare a response. The response is
reviewed and signed by the FOIA section chief, and sent to the requester.
Response options include records released in entirety, partial denial of records,

3 The Chairman, Commissioners, and Inspector General were each appointed by the President
and confirmed by the Senate; the remaining four appointees were appointed by the Chairman to
serve on his staff.

* Each NRC office has a FOIA coordinator and some have alternate FOIA coordinators.

3


Evaluation of NRC’s FOIA Process

OIG's evaluation found no evidence that NRC’s FOIA process includes any type
of political review! by NRC political appointees of FOIA requests or responses.
This report elaborates on our evaluation finding and methodology, and makes no
recommendations.

BACKGROUND

The FOIA, enacted in 1966, is a Federal law that is set forth in Title 5, Section
552, of the United States Code, as amended. In enacting the FOIA, Congress
established that any person has the right to submit a written request for access to
records or information maintained by the Federal Government. In response to
such written requests, Federal agencies must disclose the requested records,
unless they are explicitly protected from disclosure by any of nine FOIA
exemptions.” In addition, the right to request access is enforceable in court, and
the law provides administrative and judicial remedies for those who are denied
access to records requested under the FOIA.

NRC’s FOIA program is managed by the FOIA/Privacy Section (referred to in this
report as the FOIA section) within the Office of Information Services. There are
five FOIA specialists, one program analyst who processes FOIA cases as a
secondary function, and the section secretary who is involved in the
administrative processing of FOIA requests. Based on 302 requests, and 3
referrals received from other agencies in fiscal year (FY) 2009, the FOIA section
processed 777 requests for documentation (RFD) throughout the agency. Based
on 320 requests, and 6 consultations received from other agencies, in FY 2010
(as of August 30, 2010), the FOIA section processed 926 RFDs.

1 For purposes of this evaluation, OIG defined political review as an attempt, by a political
appointee to inquire about the background of a FOIA requester and/or delay disclosures deemed
too politically sensitive.

2 Information may be withheld from public disclosure under the FOIA if it falls into one or more of
the following exemption categories: (1) classified national security information, (2) internal matters
of a relatively trivial nature and substantial internal matters, (3) information mandated by Federal
statute to be withheld from public disclosure, (4) matters involving trade secrets and/or privileged
or confidential commercial or financial information, (5) interagency or intra-agency material
privileged in the context of civil discovery, (6) personal privacy information, (7) investigatory and
other information compiled for law enforcement purposes, (8) matters contained in reports
prepared for the use of an agency responsible for the regulation or supervision of financial
institutions, and (9) geological and geophysical information and data, including maps, concerning
wells.


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SUBJECT: MEMORANDUM REPORT: EVALUATION OF
NRC’S FOIA PROCESS (OIG-10-A-19)

The Office of the Inspector General (OIG) conducted this evaluation to determine
whether and, if so, the extent to which U.S. Nuclear Regulatory Commission
(NRC) political appointees are made aware of Freedom of Information Act (FOIA)
information requests and have a role in reviewing requests or decisionmaking.
The evaluation was initiated in response to an August 23, 2010, letter from
Senator Charles Grassley and Representative Darrell Issa to the NRC Inspector
General that requested the Inspector General conduct an inquiry with the
aforementioned purpose and report back to them with any findings by
September 17, 2010.

The letter (attached to this report) from Senator Grassley and Representative
Issa cited recent press reports that political appointees at the Department of
Homeland Security (DHS) impeded FOIA requests by creating a new layer of
political review. According to the letter, DHS political appointees required an
opportunity to review requests from lawmakers, journalists, activist groups, and
watchdog organizations, and they routinely probed for information about the
requesters and delayed disclosures deemed too politically sensitive.