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NUCLEAR CONTROL INST. v. UNITED STATES NRC

May 20, 1983

NUCLEAR CONTROL INSTITUTE, Plaintiff
v.
UNITED STATES NUCLEAR REGULATORY COMMISSION, Defendant



The opinion of the court was delivered by: RICHEY

 UNITED STATES DISTRICT JUDGE CHARLES R. RICHEY.

 I. THE FACTS.

 In June of 1981, while Emanuel R. Morgan was employed by defendant Nuclear Regulatory Commission ("NRC"), he was asked by NRC Commissioner Victor Gilinsky for a briefing on his prior experience as an inspector for the International Atomic Energy Agency ("IAEA"). On July 7, 1981, Morgan met with Commissioner Gilinsky, and later submitted a written report to him concerning IAEA safeguards. This report was subsequently classified in its entirety as "Secret- National Security Information."

 On November 9, 1981, NuclearFuel, a trade journal, published an article stating that a Commission employee had written a memorandum critical of IAEA safeguards. This was followed on November 16, 1981 by a report in the New York Times, which identified Emanuel R. Morgan as the author of a memorandum critical of IAEA safeguards and which purported to summarize the contents of the memorandum. On November 23, 1981, NuclearFuel published what it claimed to be a verbatim copy of the full text of the Morgan Memorandum.

 On the same day as the New York Times report, plaintiff Nuclear Control Institute, a nonprofit, public interest organization, submitted the Freedom of Information Act request that is the subject of this action. On December 1, 1981, this request was granted in part and denied in part by defendant. Specifically, defendant turned over to plaintiff copies of several documents responsive to its request and a list identifying five documents that would not be disclosed:

 
1. Memorandum for William J. Dircks, Executive Director for Operations, from James R. Shea, Director of the Office of International Programs, dated August 3, 1981, concerning the classification of the report prepared by E. R. Morgan.
 
2. Memorandum for Commissioner Gilinsky from William J. Dircks, dated August 5, 1981, forwarding a copy of report prepared by E. R. Morgan.
 
3. Report prepared by Emanuel R. Morgan (undated).
 
4. Memorandum for Commissioner Gilinsky from William J. Dircks, dated September 23, 1981, forwarding and including the Staff Commentary on Report by E. R. Morgan.
 
5. Memorandum for Chairman Palladino from William J. Dircks, dated October 30, 1981, forwarding and including the Staff Commentary on Report by E. R. Morgan.

 On December 31, 1981, plaintiff appealed the nondisclosure of these five documents. At a public meeting held on February 25, 1982, the NRC voted, in a split decision, to deny plaintiff's appeal. Plaintiff was informed of this action by the Secretary of the Commission on February 26, 1982.

 Meanwhile, on December 2, 1981, the Committee on Foreign Relations of the United States Senate held public hearings on "IAEA Programs of Safeguards," at which one of the testifying witnesses was Emanuel R. Morgan. Plaintiff's President also testified, and asked the Committee to insert into the hearing record "the Morgan report as it was published in NuclearFuel," a request that was granted. The "Morgan Memorandum" and IAEA safeguards were again discussed on March 3, 1982 in a hearing by the Subcommittee on Energy Conservation and Power of the House Committee on Energy and Commerce. On March 18, 1982, there was further extensive discussion of these subjects at joint public hearings held by the Subcommittee on International Security and Scientific Affairs and the Subcommittee on International ...


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