ML18045A386
| ML18045A386 | |
| Person / Time | |
|---|---|
| Site: | Palisades  |
| Issue date: | 07/22/1980 |
| From: | Smith I Atomic Safety and Licensing Board Panel |
| To: | |
| References | |
| ISSUANCES-CIV, NUDOCS 8007250678 | |
| Download: ML18045A386 (29) | |
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- nacKETED USNRO UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION I *Ju1.7 2 31980 THE ADMINISTRATIVE LAW JUDGE In the Matter of CONSUMERS POWER COMPANY (Palisades Nuclear Power Facility)
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MEMORANDUM AND ORDER ON LICENSEE'S MOTION TO COMPEL DISCOVERY (July 22, 1980)
By its May 14, 1980 Motion to Compel and its June 13 Supplemental Motion to Compel, Consumers Power Company (CPC) seeks an order requiring the NRC staff to answer its February 21 discovery requests (interrogatories and document requests) 2,3,4,5,12,13,14,15, and 17.
Requests 2 through 5 and a portion of 14 relate to the facts and deliberative con-siderations leading to the Notice of Violation in this pro-ceeding.
Requests 12 through 15 relate to similar information with respect to alleged breach of containment violations by other utilities.
Request 17 having been answered is moot according to the staff.
The staff on July 3 answered CPC's motions by agreeing to provide factual data to CPC's requests, i.e., "facts, calculations, and criteria on which it relies in prosecuting this civil penalty action" (hereinafter "factual data"),
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with respect to this case (Answer p. 3-7).and to provide similar factual data with respect to other utilities.
Id. p.3 and passim.
The staff reports, and CPC does not dispute, that the staff is in compliance with CPC's discovery requests on such factual data. *The staff's representation is dispositive of the motion as it relates to factual data.
The staff declined to answer the discovery requests either as to this proceeding or with respect to other utilities where they inquire into the mental impressions and deliberations (hereinafter "deliberative data") of the Director of the Office of Inspection and Enforcement (Director) and other staff members who participated in this and in other enforcement actions.
The staff's objections rest upon the asserted grounds that the information sought is irrelevant, privileged and unnecessary to a proper decision in this proceeding.
When refined, the issue presented is the traditional one of attorney work-product privilege and its laymen's counterpart, executive privilege.
Interrogatories to the NRC staff are authorized by 10 CFR §2. 720 (h) (2) (ii):
In addition, a party may file with the presiding officer written interrogatories to be answered by NRC personnel with
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knowledge of the facts designated by the Executive Director for Operations.
Upon a finding by the presiding officer that answers to the interrogatories are necessary to a proper decision in the proceeding... the presiding officer may require that the ~taff answer the interrogatories.!!
Document requests to the staff are authorized by 10 CFR §2.744(d):
Upon a determination by the presiding officer that the requesting party has demonstrated the relevancy of the record or document and that its production is not exempt from disclosure under §2.790 or that, if exempt, its disclosure is necessary to a proper decision in the proceeding... he shall order the Executive Director for Operations, to produce the document. 1/
See also §2.744 (1) (2) (3) & (4).
As can be seen, the standards of the two sections differ.
According to the provisions of §2.720 interrogatories may be enforced only upon a showing that the answers to be produced must be necessary to a proper decision in the pro-ceeding.
Document requests, however, must be enforced where relevancy has been demonstrated unless production of the 1/
The materiaL deleted from the quoted regulations relates to the need to find that the r~quested material is not pbtainable f~om a:nother source~* The parties* refer to this provision in passing but they present no issue for ruling.
- 4 document is exempt under 10 CFR §2.790.
In that case, and only then, it must be demonstrated that disclosure is necessary to a proper decision in the matter.
The parties have not briefed the difference in the two sections.
Moreover, neither the staff nor CPC seem to recognize that document requests must be decided on the dual bases that documents must be produced if relevant unless exempt, or, if exempt, when disclosure is necessary.
E.g.,
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Staff answer, p. 14 n.21, p. 17, p. 21 n.33, CPC's Motion p.2, 18.
By arguing relevancy of interrogatories, (Answer pp.7-11) and by providing factual answers to interrogatories on the basis of relevancy, rather than need, the NRC staff appears to have waived the higher "necessary to a proper decision" standard of
§2.720 (h)(2)(ii) in favor of a traditional relevant-unless-privileged standard.
The staff has waived this higher standard in other proceedings and it is particularly appropriate that it do so in this proceeding.
Therefore the standard applied in this order with respect to interrogatories is that the answers will be required where relevant, unless privileged, then the privilege will be weighed against CPC's need for the information.
As it turns out, the standard for interrogatories 2/
However the organization of the staff's brief is consistent with* the correct standard for both interrogatories and document production.
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is functionally identical to the standard for document pro-duction because exemption under §2.790 is the equivalent to traditional privilege in civil proceedings.
Relevance The deliberative data leading to this litigation are almost by definition relevant to the issues in this pro-ceeding.
The deliberative data may be indirectly relevant for the broad purposes of discovery because the information may lead to the discovery of admissible factual evidence.
They are directly relevant to expert NRC staff judgment as to the proper application of enforcement criteria which in turn is conceded by both parties to be relevant in this adjudication.
See also Atlantic Research Corporation, (ALAB-594), June 2, 1980, 11 NRC
, Slip op. p.14, (schedule of civil penalties may be considered by adjudicators).
The discovery requests relating to other enforcement proceedings are also relevant to the correct application of the civil penalty criteria.
Contrary to the staff's position, (Answer, p.10)~ an issue of "discriminatory enforcement" may be raised in this proceeding.
There is an interest in NRC civil penalty proceedings in "achieving general equality of
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treatment among offending licensees.... " ALAB-594, Slip op.
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Therefo~e the requested deliberative data are generally relevant to this proceeding.
Whether or not each interrogatory and document request in particular is relevant, will be left to the parties to work out in accordance with this order.
Neither party argues irrelevancy on an item-by-item basis.
The particular discovery requests seem to be relevant.
Privilege and Exemption Section 2.790 of the rules of practice is the NRC's promulgation in obedience to the Freedom of Information Act, (FOIA), 5 USC §552.
Section 552(b) sets* forth nine exemptions to the FOIA requirement that agencies maintain and make available identifiable public information records.
Exemption 5 (§552(b)
(5)) is similar to the NRC's Exemption 5 (§2.790(a)(5)):
(5)~ Interagency or intra-agency memoranda or letters which would not be available by law... in litigation with the [agency or Commission].
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By this ruling I do not necessarily disagree with the staff that, as a matter. of law, "discriminatory enforce-ment" is no defense.
Answer, p.10.
If, however, the staff is to urge in this proceeding a departure from general equality of treatment of those charged with violations, the bases for the departure may be considered.
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Exemption 5 is the only one germane to the privilege 4/
consideration raised by licensee's motion to compel.-
Licensee argues, however, that the FOIA in general does not purport to set rules of discovery in United States courts or agencies.
Motion, p.4.
The NRC staff in responding to this point concedes that the FOIA does not establish new govern-ment privileges against discovery, but points out that the Commission, empowered to adopt rules of discovery, has elected to incorporate the exemptions of the FOIA into its own rules.
Answe~ p.18 n.28.
Citing Montrose Chemical Corp. v. Train, 491 F. 2d 63 (D.C. Cir. 1974), the staff also argues that Exemption 5 embodies preexisting principles protecting disclosure of the deliberative processes of decision makers.
The staff is correct~ The point is made even more exactly in the Supreme Court decision referred to by the Montrose dourt as the Exemption 5 "seminal case" (Id., p.65), Environmental Protection Agency v. Mink, 410 US 73, (1974).
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Exemption 7, under FOIA and §2.790 relates to investigatory records compiled for law enforcement purposes.
It is so restricted by its six limitations that it is not relevant to this case.
Exemption 7 has not been asserted by the staff.
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At issue in EPA v. Mink were efforts by members of Congress to discover under FOIA whether conflicting recommendations had been made to the President concerning the advisability of underground nuclear tests and whether the recommendations were protected by Exemption 5.
There the Court noted that the.
language of Exemption 5 "clearly contemplates that the public*
is entitled to all such memoranda or letters that a private party could discover in litigation with the agency."
Id. at 85-86.
The court in EPA v. Mink, however, acknowledged that "the discovery rules can only be applied under Exemption 5 by way of rough analogies."
Id at 86.
Nevertheless the court went on to analyze the limits of Exemption 5 in terms of traditional cases on discovery of deliberative processes in civil litigation, citing Kaiser Aluminum and Chemical Corp. v. United States, 157 F. Supp. 939, 946 (Court of Claims, 1958) and United States V; Reynolds, 345 US 1, (1953).
The circumstances in NLRB v. Sears Roebuck & Co.,
421 US 132 (1975) are closer to those involved in Administra-tive Procedure Act (APA) proceedings such as our own.
There the issue was whether Exemption 5 protects intra-agency advice given to the General Counsel of the NLRB and the General Counsel's memoranda reflecting that advice and reflecting his own deliberations as to whether unfair labor practice charges should be instituted before the NLRB.
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The similarities between the respective roles of the NLRB General Counsel and the I&E Director in this proceeding are very strong.
The NLRB General Counsel, acting upon a complaint, receives the advice of one or more components of his office.
Either acting upon the advice or not, the General Counsel makes in writing the final determination as to whether a charge of unfair labor practices should be filed before the National Labor Relations Board for adjudication.
If the General Counsel decides that no charge should be filed, the matter is ended.
If his determination is to file the charge, the matter is tried de novo.
421 US at 138-142.
Within the NRC, the Director of I&E has the sole delegated authority within his office to make the decision as to whether or not a civil penalty is imposed.
If his decision is to impose a penalty, a hearing de ~
is held. if requested by the licensee.
If the Director decides n9t to impose the penalty, or to compromise it, the matter ends.
10 CFR §2.205.
The fact that the NLRB General Counsel acts upon a complaint from an aggrieved person, while the I&E Director most often acts upon an internally generated report is immaterial.. Each is the agency official charged with making the decision whether or not a matter is to be litigated.
NLRB v. Sears, because it involved adjudications under the Administrative Procedure*Act, because it involved a demand for prelitigation deliberative data, and because the scope of Exemption 5 is in issue, is the leading case con-5/
trolling the issue raised by licensee's motion to compel.-
The Court in NLRB v. Sears left little doubt th*a t, absent special considerations, where an APA adjudicative proceeding is involved, the reach of Exemption 5 is co-extensive with privileges in civil litigation:
Since virtually any document not privileged may be discovered by the appropriate litigant, if it is relevant to his litigation and since the [Freedom of Information] Act clearly intended to give any member of the public as much right to disclosure as one with a special interest therein, [citations omitted], it is reasonable to construe Exemption 5 to exempt those documents, and only those documents, normally,privileged in the civil discovery 5/
The NRC staff cites Renegotiation Board v. Grumman Aircraft Engineering Corp., 421 U.S. 168 (1975),
(decided the same day as NLRB v. Sears) in support of its position on Exemption 5.
Answer p.24.
Licensee
§tates that Renegotiation Board is. inapposite.
Both parties hav~ a good point.
Renegotiation Board. contains a reasoned discussion concerning the distinction between intra-agency :memoranda and fina_l agency opinions. *:But*
Rene*gotia tion_ Boardr proceedings were exempt from the Administrative Proc-edure Act,_. except for the :FQIA.
This fact troubl~d the-Court.
421 US at 192.
In view of.
NLRB v. Sears, there is no need to rely upon Renegotiation i3'0"ard in APA Proceedings.
.- context. 16 The privileges claimed by the petitioners to be relevant to this case are (i) the "generally... recognized" privilege for "confidential intra-agency advisory opinions...,"Kaiser Aluminum &
Chemical Corp. v. United States, 141 Ct Cl 38, 49, 157 F Supp 939, 946 (1958), Reed, J., disclosure of which "would be 'injurious to the consultative functions of government.... '
Kaiser Aluminum & Chemical Corp., supra, at 49, 157 F Supp, at 946," EPA v Mink, supra, at 86-87, 35 L Ed 2d 119, 93 S Ct 827 (sometimes referred to as "executive privilege"), and (ii) the attorney-client and attorney work-product privileges generally available to all litigants.
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The ability of a private litigant to override a privilege claim set up by the Government, with respect to an otherwise disclosable document, may itself turn on the extent of the litigant's need in the context of the facts of his particular case; or on the nature of the case, EPA v Mink, 410 US, at 86 n 13, 35 L Ed 2d 119, 93 S Ct 827; Hickman v Taylor, 329 US 495, 511-512, 91 L Ed 451, 67 S Ct 385 (1947); Jencks v United States, 353 US 657, 1 L Ed 2d 1103, 77 S Ct 1007 (1957);
United States v Nixon, 418 US 683, 41 L Ed 2d 1039, 94 S Ct 3090 (1974).
However, it is not sensible to con-strue the Act to require disclosure of any document which would be disclosed in the hypothetical litigation in which the private party's claim is the most compelling.
Indeed, the House Report says that Exemption 5 was in-tended to permit disclosure of those intra-agency memoranda which would "routinely be disclosed" in private litigation, HR Rep No. 1497, p 10, and we accept this as the law.
Sterling Drug, Inc. v FTC, 146 US App DC 237, 243-244, 450 F2d 698, 704-705 (1971).
421 US at 149.
The Exemption 5 cases approached the issue from the direction of the public's right to information.
It is, however, axiomatic that where the public's right to in-formation is equal to the right of a litigant in civil
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discovery, the litigant's right is equal to that of the public.
The exception to Exemption 5. noted by the NLRB v. Sear's Court, the situation where a litigant has a compelling need for a document, (421 US at 149, n 16, supra,) closes the circle on staff discovery privileges in NRC proceedings.
The Commission in adopting the standards of Exemption 5 and "necessary to a proper decision" as its document privilege standard under 10 CFR §2.744(d) has adopted traditional work product/executive privilege exemptions from disclosure.
Consumer's particular need for the Director's deliberative data must be balanced against the purposes of the privilege under both Exemption 5 cases and traditional privilege cases.
Need vs. Privilege The Freedom of Information Act does not "
permit inquiry into the particularized needs of the individual seeking the information, although such an inquiry would ordinarily be made of a private litigant."
EPA v.Mink, 410 US at 86.
The Exemption 5 cases therefore provide little guidance as to balancing the needs 0£ the discovering party, but they do provide some of the rationale for applying the exemption to prelitigation deliberative considerations of the government decision makers.
This rationale is instructive because the Courts had to balance the need for the privilege against an
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expressed public interest and the strong statutory mandate requiring disclosure of government documents affecting the public.
The Court in NLRB v. Sears, supra; held that the "Advice and Appeals Memoranda" which explain the decisions by the NLRB General Counsel to commence a litigation fall within the scope of Exemption 5 (421 US at 148) and ruled that the Exemption 5 6/
privilege would attach.
Id. at 160.-
The Court commented that the underlying need for the privilege is to encourage the frank discussion of legal or policy matters in order to pro-duce better decisions and policies.
The Court also observed the practical human phenomenon of "playing it safe" and the temptation to temper candor in favor of appearances when public dissemination of written remarks is expected, all to the detriment of the decision-making process.
Id. at 150.
In balancing the need for the privilege against the public's right to information, the court also observed that the bases for the decision to litigate would come out in the course of the litigation, and that any "law" to be made in the proceeding will be made by *the National Labor Relations Board, not the General Counsel.
Id. at 159-60.
This latter consideration is, of course, parallel to the circumstance of this proceeding.
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The Court did not authorize non-disclosure, however.
The matter was remanded to determine whether Exemption 7 would apply.
Id. at 166.
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14 In EPA v Mink, supra., there wa.s no counterweighing factor, in that the information sought would not come forth in any subsequent litigation.
Nevertheless the Court recognized the value of the traditional executive privilege doctrine in extending executive privilege to the secret documents in issue:
As Mr. Justice Reed [in Kaiser Aluminum v.
U.S. J stated:
There is a public policy involved in this claim of privilege for this advisory opinion--the policy of open, frank discussion between subordinate and chief concerning administrative action.
Id., at 48, F Supp, at 946.
410 us a.t.87.
Mr. Justice Reed, retired, wrote the opinion for the United States Court of Claims in the cited leading case of Kaiser Aluminum & Chemical Corporation v. United States, 157 F. Supp, 939, 945-47~ (1958).
The ruling held privileged the intra-agency advisory opinion leading to the sale of an aluminum plait to Kaiser's competitor, Reynolds Aluminum, by the GSA Liquidator of War Assets.
See also Hickman v. Taylor, 329 US 495, 509, (1947), regarding attorney work product, cited by Justice Reed where he notes that the government executive privilege is "akin" to the attorney-client privilege and the attorney's work-product privilege. 157 F. Supp. a.t 947..
In another APA case, KFC National Management Corp. v.
N.L.R.B., 497 F. 2d 298 (2nd Cir. 1974), cited by the staff, the Court, in protecting work product in the decision-making process, noted:
Thus what emerges from the Morgan quartet is the principle that those legally responsible for a decision must in fact make it, but that their method of doing so--their thought processes, their reliance on their staffs--is largely beyond judicial scrutiny.
The Morgan quartet referred to in KFC is a reference to four executive privilege cases concluding in "Morgan IV,"
United States v. Morgan, 313 U.S. 409, (1941) in which the Supreme Court unanimously ruled that the Secretary of Agri6ulture cannot be examined on the deliberative processes by which he arrived at decisions affecting marketing agencies absent a consideration of improper conduct.
NRC decisions.have come down on both sides of the issue of work product/executive privilege exemption.
In Consumers Power Company (Midland Plant Units 1 & 2), ALAB-33, 4 AEC 701 (1971) aff 'd ALAB-123, 6 AEC 339-41, the Appeal Board accepted the staff's argument that to require disclosure of documents reflecting the development by many persons of its position on the issues would in the future impede a free and open dis-cussion.
In Virginia Eleqtric and Power Company, (North Anna Power Station Units 1 and 2), CL! 74-17, 7 AEC 313 (1974) the Commission permitted intervenor's discovery of certain Advisory Committee on Nuclear Safeguards (ACRS) documents.
The Commission recognized the executive privilege and Exemption 5 argunents against nondisclosure, citing United States v. Morgan, supra, EPA v. Mink, supra and Kaiser Aluminum v. United States, supra.
However, in view of the important safety significance of the material in issue, and the licensing board's determination that the information was necessary to a proper decision, the Commission required disclosure of the ACRS internal opinions, memoranda and advice.
The privilege asserted by the Director of I&E and up-held by this order is not for the purpose of protecting the Director or his advisors.
It is to protect free discussion and to encourage the staff of the NRC to speak candidly and forthrightly among themselves in their deliberations so that the Director may have the advantage of best advice available.
Kaiser Aluminum v. United States, supra.
157 F. Supp. at 947.
He is of course not required to accept advice that he dis-agrees with -- advice which may have little value or perhaps even be wrong.
But requiring disclosure would most certainly in the future restrict the flow of advice to him, the bad and good alike.
In the instant case I see no important public safety considerations requiring the disclosure of the staff's deliberative processes.
CPC knows better than the staff, it is to be expected, how the factual circumstance arose, and in any event, the staff has agreed to produce all relevant factual material.
We do not read the licensee's
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papers as a request for advice from the staff on the technical issues involved.. If any need exists, it is a 7/
litigative need, asserted to be required as a defense.-
Although I have ruled that the data sought is relevant or could lead to the discovery of relevant information possibly useful in CPC's defense, it is not possible to find from the present record that the information is necessary to a proper decision, or that it is so important to CPC's defense that the privilege should be set aside.
The privilege, as noted above, is very important to the Director's responsibilities.
The Director must prove his case de novo in the hearing and on review by a preponderance of the reliable, probative and substantial evidence.
Radiation Technolo.gy, Inc. ALAB-567, 10 NRC 533, Cf. Atlantic Research Corporation, ALAB-594, supra, slip op., p.12.
The licensee does not need to be privy to the Director's mental processes and those of his advisors to test whether the Director satisfies his burden of proof.
Whether he has proved his case or not will be decided on the basis of the evidentiary record and the law.
It will not be decided on any basis not known to licensee.
7/ This proceeding is neither entirely private nor entirely public.
The same circumstance prevailed in NLRB v. Sears, supra, where the Court, nevertheless upheld the work-product privilege.
421 US at 155, n 22.
Moreover, to the extent there is a public interest in this proceeding, the fact that the Director will be required to disclose the bases for his cha~ges fully in a public pro-ceeding, removes from consideration ohe of the factors to be considered in weighing disclosure over privil~ger NLRB *,v..
--*-*~,,.
Sears, p. 13,--supra.
Licensee cites Boyd v. Gullett, 64 F.R.D. 169, 177 (D. Md, 197 4) and Verrazzano Trading Cor.E_.. v. United States, 349 F Supp. 1401 (Cust. Ct. 1972) to the effect that the "exceptions'i (nine exemptions) of the FOIA and §2. 790 are not a list of documents privileged from discovery in litigation.
This is true.
The fact that, under Exemption 5, a private litigant's needs may exceed the scope of Exemption 5 is thoroughly discussed.above (p.9-12).
This principle has been applied to licensee's motion.
The court in Boyd v.
Gullet itself recognized at the very place cited by licensee that, where the material requested (under FOIA) would have been privileged in a judicial proceeding under Federal rules, Exemption 5 subjects the agency to the same privilege standard.
64 F.R.D. at 177.
Verrazzano Trading *corp.* v. United States follows the principle that scientific reports such as laboratory analyses, purely objective in nature, which are not policy or decision-making recommendations are not exempt under Exemption 5.
349 F. Supp. at 1401-07.
This standard has been applied in
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this order.
As I understand the staff's response to the motion to compel, the staff has not withheld from disclosure any objective scientific reports.
If this is not :the case; the staff is wrong.
Licensee cites United States v. Continental Can Co.,
22 F.R.D. 241 (S.D.N.Y. 1951) to the effect that once the government comes into court as a party it waives whatever privileges it had.
Motion, p.16.
Indeed the portion of the decision cited by licensee does seem to have sweeping implica-tions that the government loses privileges wµen it becomes a litigating party.
Id. at 245.
However the situation in Continental Can relates to a "privilege" created by an Attorney General's regulation protecting the disclosure of facts developed by the FBI, and in no way touches upon work-product privilege, nor does the holding differ from this order where every material fact which may be relevant to the case must be produced upon appropriate demand.
The better reasoning is that the government is no less entitled to normal privilege than is any other party in civil litigation, as dis-cussed by the staff in its Answer.
pp. 15-16.
Similarly, United States v. Reynolds, supra, does not support licensee's argument that it is entitled to the Director's deliberative data.
Licensee argues that pursuant
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to Reynolds, the government may exercise its evidentiary privilege only at the price of letting the defendant go free.
Motion, p.5.
Reynolds involved a ruling that military secrets were privileged in a tort proceeding against the government.
The passage cited by licensee was an observation that in a criminal case, the government would have to elect between secret factual privilege and dismissing the criminal defendant, but that such considerations would not apply in a civil proceeding where the government is a defendant.
345 U.S.
at 12.
Licensee has not made a case for granting to ~t in a civil penalty proceeding the same special considerations to be afforded to defendants in criminal proceedings.
In Ghana Supply Comm'n v. New England Power Co., 83 F.R.D.
583 (E. Mass, 1979), cited by licensee (motion p.6), the executive privilege was asserted by the government of Ghana but the court ruled that the executive privilege was waived when Ghana elected to become a plaintiff in United States Courts.
Although the case is complicated by considerations of comity and the diversity among Federal law, Massachusetts law and the law of Ghana, on balance licensee is correct.
Ghana tends to support the position that the executive immunity is waived where the government sues.
The answer to Ghana, however, is that _Ghana, functioning as both a government and as a trading*corporation had the choice to sue or not to sue for commodity contract damages in
21 United States Courts.
There was no consideration of the public interest in protecting the e~ecutive privilege as explained in NLRB v. Sears, EPA v. Mink and the other cases cited above.
In this proceeding, involving the enforcement of important public health and safety laws and regulations, the public interest in protecting the quality of the decision-making process is no less than in any other case on the subject.
Accordingly, I find.that the deliberative data leading to the hearing in this proceeding, withheld from discovery* by the Director is privileged and exempt from production under traditional privilege tests, under Exemption 5 of the FOIA and under §2.790.
The record does not demonstrate that the
- i information is needed for a proper decision in the proceeding nor that the information is important to licensee's defense.
The Director is not required to produce such data.
This may not be the end of the matter, however.
Until the Director's case unfolds, it may not be possible to determine what ~s required for a proper decision in the proceeding or what licensee must have for a full defense.
The ruling today is based upon the record* as it exists now.
Due process will require that the licensee's defense be permitted to follow the Director's allegations and arguments.
Relevant Data From Other Proceedings In NLRB v. Sears, supra, the Court extended the pre-
- litigation deliberative data *exemption under Exemption 5
22 to only those data and memoranda which led to the filing of a formal charge of unfair labor practices before the NLRB.
In supplementation to the traditional work-product privilege, the basis for the Court's ruling was *that memoranda which recommend litigation are not "final opinions, including con-curring and dissenting opinions, as well as orders, made in the adjudication of cases;... "
Such opinions, under FOIA, must be made available for public inspection.
5 USC 552 (a) (2) (A).
The Court, it will be recalled, observed that the adjudication following the filing of charges, not the charging memorandum, was the final agency opinion.
421 US at 148.
However, Exemption 5 did not apply where the General Counsel's memoranda concluded that no complaint should be filed.
421 US 155.
The Court reasoned that where the memoranda disposing of the consideration closed the proceeding without a formal litigation, that disposition was the final agency disposition.
Id.
At the NLRB the General Counsel's closing memoranda are not appealable.
Id.
As far as any particular case is concerned, the closing memoranda constitutes the "law" of the agency.*- - Id*~ -at 158.
As "final opinionsn the closing memoranda must be indexed pursuant to 5 USC 552(a)(2)(A).
Id.
The closing memoranda is also regarded as an "adjudication" under the Administrative Procedure Act.
Id.
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The analogy to our proceeding is clear.-
The Director, having the final authority under §2.205 to issue or not to issue a notice of violation imposing a civil penalty is, by delegation, making the final decision of this Commission when he determines not to impose the penalty.
Any document in final form memoralizing his decision not to issue a notice of violation imposing civil penalties does not fall within Exemption 5.
While I do not find that closing documents in other civil penalty proceedings are necessary to a proper decision in this proceeding, I have above, (p.5, supra,) found that they are relevant.
As such, they fall beyond the scope of privilege and beyond Exemption 5.
They must be produced pursuant to licensee's Lnterrogatories 12 through 14.
8/ It is not so clear that the Director's actions are APA "adjudications" within the meaning of NLRB v. Sears, because the matter most often arises by internal I&E inspection, not upon the complaint of an aggrieved party.
Nevertheless it is a final disposition.
The staff must concede this point if it argues that his decision to issue the notice of violation is to be protected as the work of the decision maker.
E.g., Staff Answer, p.8.
Although it is my view that 5 USC 552 (a) (2) (A) requires the Director to prepare and to index final closing memoranda on civil penalties, that is a consideration beyond the jurisdiction scoped by the notice of hearing.
and beyond the powers of Part 2 presiding officers.
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It is not clear from the record whether such closing memoranda exist, or if they exist, whether the staff has al-ready provided them to licensee under the FOIA.
In any event the Director is not required to prepare closing memoranda in previously closed cases covered by Interrogatories 12 through 14 by virtue of this order.
NLRB v. Sears, 421 US at 162.
The staff reports that only four memoranda, covered by Interroga-tories 12(f) and (g), exist and offers them for in camera inspection.
Answer~ pp. 6-7.
These memoranda and any others from regional personnel or from subordinate I&E headquarters personnel recommending for or against sanctions need not be produced.
Apparently the practice has not been for the Director to publish or index closing memoranda if in fact he prepares them.
Therefore there may be some unfairness in requiring disclosure of candid deliberations and references to confidential recommendations which were prepared in the belief that they would not be disclosed.
Moreover it would not be consistent with the public interest in encouraging free deliberations and advice by public officials as explained in the cases cited above even though closing memoranda are not covered by Exemption 5.
Therefore the staff may seek relief consistent with this order to balance the requirement that final opinions
25 be published against the need to protect previously expressed candid deliberative advice and decisions.
Perhaps sanitized and complete versions of closing memoranda may be submitted for in camera.
This procedure is appropriate only because other than the requirements of 5 USC 552 (a) (2), the Director has had no prior indication that closing memoranda would be made public.
It cannot be determined from the papers relating to licensee's motion whether the staff has withheld documents which contain facts, calculations, and criteria, conceded by the staff to be relevant and not privileged, but which also contain information revealing the deliberative processes of the Director and his advisors.
If purely factual material exists in documents containing deliberative information in a form which is severable without compromising the deliberative privilege, the staff is required to produce such documents in a sanitized form.
EPA v. Mink, supra, 410 US at 91.
On July 18, 1980 the licensee filed its answer to the staff's motion for a protective order which motion was l
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embodied in the staff's July 3 answer to CPC's motions to compel.
The answer to the motion for a protective order was received after the foregoing memorandum and order was prepared.
In its answer CPC argues anew the bases for 9/
its motions to compel.-
CPC raises no new substantive 9/
This sequence demonstrates a confusing aspect of the NRC discovery rules.
Section 2.740(f), which,,provides for motions to compel, suggests that a party may not resist the disputed discovery request on the ground that the discovery sought is objectionable unless the party failing to respond to discovery has first sought a protective order.
Another reading of the same rule suggests that a failure to respond to the motion to compel must be preceded by a motion for a protective order.
The Federal Rules of Civil Procedure are not analogous on this point.
In this case the staff moved for a protective order with its answer to the motion to compel.
This procedure is sometimes but not uniformly followed in NRC practice.
The staff's motion produced CPC's third argument in support of its motion to compel, each adding to CPC's position.
CPC's last filing, al-though literally permitted by § 2.730(c), is frequently omitted in discovery disputes.
The better practice is for the party moving to compel discovery to advance all arguments and bases known to it at the time it makes its original motion.
The staff's reliance upon executive privilege was known to CPC when CPC filed its original motion.
However, CPC is not to be faulted for its handling of this motion because of the provisions of §2.730(c) and §2.740(c) & (f).
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arguments.
Its latest filing provides no grounds to alter the rulings above.
However CPC's answer raises some points that deserve clarification.
CPC complains that the staff failed in a duty to identify the material for which it asserts the E?Xecutive privilege.
CPC Answer, pp. 8, 16-17.
The foregoing order does not require the staff to identify the privileged documents nor to present them for in camera inspection because it seems that the asserted privilege was a definite one, i.e., either a document or portion thereof is clearly privileged or it is not.
If CPC does not agree with this analysis, it may renew its request for further identification or for related relief consistent with the privilege rulings made above.
CPC suggests that the staff is providing factual data, (conceded by the staff to be not privileged) only where the factual data supports its position.
CPC Answer, p. 10, n.
However staff's responses to CPC's discovery requests purport to produce all relevant data not privileged.
While I do not share CPC's concern that the staff is withholding relevant factual data, to remove any doubt, the staff is directed to produce the relevant "facts, calculations and criteria" on which it relies and which it possesses, whether or not the data support the staff's position in this litigation.
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CPC argues that because the staff has disclosed certain information within the category of information asserted by it to be privileged, the privilege is lost as to similar informa-tion not disclosed.
CPC Answer, pp. 9, 10, and 15.
While it is true that a party cannot withhold as privileged the same data it previously disclosed, CPC has no standing to complain because the staff discloses data as to which it could have asserted privilege.
In other words, CPC has provided no support for its apparent position that waiving privilege on certain data waives the otherwise valid privilege on all other data in the same category.
CPC states that because the I&E Enforcement Manual, Chapter MCOSOO, instructs the Director to advise the appro-priate Regional Director of the reasons for not accepting the Regional Director's recommendation on enforcement cases, the Director's advice memoranda should be disclosed as the "best contemporaneous assessment by the Director of the importance" of the particular consideration.
CPC Answer, pp. 11-12.
This characterization of the memoranda may be true, and as noted above.such communications are relevant.
However, the fact that such instructions may appear in the Enforcement Manual does not operate to invalidate any privilege attached to the Director's report to his Regional
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Director.
The appropriate considerations are covered in the discussions above.
For example, if the Regional Director recommends that no enforcement action be initiated and the Director disagrees, the Director's memorandum to that effect is privileged under Exemption 5, p. 13, supra.
NLRB v. Sears, supra, 421 US at 148, 160.
If, however, the Regional Director recommends an enforcement action but the Director decides to terminate the matter, the Director's memorandum to the Regional Director, if it is his final closing memorandum, must be pro-duced.
- p. 22, supra, NLRB v. Sears, 421 US at 155.
Motions for corrections or reconsideration may be filed within 10 days following service of this order.
The staff shall comply with this order within 20 days following its service or within such other time as the parties agree to.
~1(~
Administrative Law Judge Bethesda, Maryland July 22, 1980