ML19309D049
| ML19309D049 | |
| Person / Time | |
|---|---|
| Site: | Crane  |
| Issue date: | 04/02/1980 |
| From: | Smith I Atomic Safety and Licensing Board Panel |
| To: | NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD), UNION OF CONCERNED SCIENTISTS |
| References | |
| NUDOCS 8004100021 | |
| Download: ML19309D049 (7) | |
Text
__
"hls~
N\\
\\
/.
V.
-.3%~3 gp CK,'d -
7;5 UNITED STATES OF AMERICA NUCLEAR REGULA'IORY COMMISSION
.C ggefj '7
~1 b?R
,7p"m E; S$$:{. i[i.g.
4,/j' A'IOMIC SAFETY AND LICENSING DOARD v.
t1-Ivan W. Smith, Chairman f., N '
Dr. Walter H. Jordan
'O
,2 Dr. Linda W.
Little In the Matter of
)
)
Docket No. 50-289 METROPOLITAN EDISON COMPANY
)
(Restart)
)
(Three Mile Island Nuclear
)
Station, Unit No. 1)
)
MEMORANDUM AND ORDER ON UCS MOTION TO COMPEL STAFF TO ANSWER UCS INTERROGA'IORIES 210 AND 211 (April 2, 1980)
UCS interrogatory 210 requested " time and attendance cards" since the TMI-2 accident of the staff members who wrote and reviewed the Staff's Status Report for the TMI-l restart.
It is clear from UCS's willingness to accept a computor printout of this data that UCS is willing to accept any reliable paper providing the requested information and does not insist upon original records.
The staff at first objected (February 25) to the interrogatory solely on the ground of irrelevancy.
UCS now moves to compel a response (March 11).
The staff in its answer to the motion to compel (March 24) still raises the objection of irrelevancy.
Also, for the first time, the staff resists the interrogatory on the additional grounds that 1.) it will instead provide the names of staff's 8 00410 0H98l
. witnesses when it decides who its witnesses are, and 2.) the documents containing the requested information may not be
~
produced because they contain information about individuals which may not be disclosed because of the proscriptions of 1/
the Privacy Act of 1974.-
Assuming that UCS is seeking only information about how much time each contributor to the status report proportionally spent on the report, we rule that the information requested by UCS is relevant.
Moreover it is important.
Although we cannot predict how UCS will actually use the information, it is clear that it will provide at least a quantitative assess-ment, useful perhaps on cross-examination, as to how much opportunity the staff's selected witnesses have had to under-stand their testimony.
Staff willingness to provide (with nothing more) the names of its witnesses (when it decides upon its witnesses) is simply not responsive to the in-terrogatory.
The staff provides the briefest discussion of the Privacy Act with almost no analysis.
Response, pp. 2-3.
Its partial quote from 5 U.S.C. Sec 552a(4), underlined in the full text of paragraph (4) set out below, tends to overlook the salient 1/
In its response, n.1, p.1, staff explains that time and attendance cards do not contain the requested information.
This information reposes in " manpower system records."
l l
. protections afforded by the Privacy Act while it unduly stresses portions supporting the staff's position.
(4) the term " record" means any item, collection, or grouping of information about an individual that is maintained by an agency, including, but not limited to, his education, financial transactions, medical history, and' criminal or employ-ment history and that contains his name, or the identifying number, symbol, or other identifying particular assigned to the individual, such as a finger or voice print or a photograph; (underlining supplied]
Even the limited portion of the Privacy Act cited by the staff does not fairly represent UCS's request.
UCS is obviously not interested in the " employment history" (at this time) of the status report contributors.
It is seeking details about this one particular assignment.
e It is clear that the thrust of the Privacy Act is to prevent unwarranted intrusions into the private lives of the individuals falling within its protection.
We find nothing in the Privacy Act which suggests that the relevant assignment record of public officials who, in the performance of their public duties, have prepared public documents, needed in public litigation, who may publicly testify in that litigation, may not be revealed because it may tell us something about a specific public assignment, but virtually nothing about their private lives.
If the staff's interpretation of the reach of f
the Privacy Act is to be accepted,then,without waivers, it cannot identify its proposed witnesses, release publications I
j signed by or attributed to named NRC staff members, nor could it function under public scrutiny as it must.
Perhaps the board has not fully understood the staff's l
l position.
It may be, as it appears, that the " manpower system records" are so tainted with private information that the 2/
Privacy Act would prohibit their release.-
But the staff's objection goes beyond the specific records in issue.
Staff l
asserts that "... the information UCS seeks comes under the Privacy Act.
As we noted above, we don't believe this to be the case, and the staff does not separate its argument l
l between " record" and "information."
-2/
Staff cites "NRC Rules and Regulations, Volume II, Systems of Records, NRC 21 [ payroll accounting records) and NRC 30 (manpower system records]" which prohibit the disclosure j
of information in both categories.
Whether these "regula-tions" and " rules" are adopted pursuant to the rulemaking requirements of the Administrative Procedure Act, 5 U.S.C.
553, is not clear from staff's citation or the brief opportunity we had to examine them.
They don't seem to be APA regulations, but rather internal rules for the guidance of NRC employees.
Thus it is not certain that the pro-hibition in "NRC 30" against disclosure of manpower system records is, in itself, a regulation binding in litigation.
The point is moot, however, because below we accept the staff's representation that the " manpower system records" do in fact contain information intended to be covered by the Privacy Act.
l The staff states in its response that the information UCS seeks is exempt from disclosure under the Privacy Act, unless, inter alia disclosure of the record (containing the information) would be required under Section 552 of Title 5.
Title 5 U.S.C.
552 covers a federal agency's duty to make certain information available to the public (Freedom of Information Act), as well as the Privacy Act exemptions.
The staff goes on to say that, unless each staff member gives his written consent, or unless UCS can show that its request falls under one of the exceptions to the (Privacy Act) statute, (pp. 2-3) the information cannot be released.
The trouble with the staff's approach, which troubles the board, is that the staff raised for the first time its argument under the Privacy Act in its response to UCS's motion to compel.
Thus, under the Rules of Practice, UCS had no opportunity to offer an argument that its request may be required under the Freedom of Information Act which, by incorporation would include information discoverable in litigation.
This isn't fair.
Although the staff does not expressly state, we believe that it is probable that the manpower system records contain information which is discoverable in litigation and information about employees entitled to protection under the Privacy Act.
If the NRC administration has mixed public and private informa-tion in a single set of records, the burden should not be carelessly placed upon UCS to proceed without information to which it is otherwise entitled.
Although normally we would not call upon a party to create new documents in response to discovery requests, in this case we believe that the burden properly belongs on the NRC staff to provide the information to UCS and, at the same time, to protect the privacy of its members.
It may do this by doloting the private information from the original record, but the board believes that the better method is to discuss with UCS a simplified demonstration of the 3/
information sought by the interrogatory.-
The board also recommends that counsel for UCS and staff counsel discuss whether UCS will make a similar discovery request following the issuance of the Safety Evaluation Report or its equivalent, and plan accordingly.
The staff must remember that, in requesting the original documents, UCS was attempting to do its own work.
It could have proceeded, (and perhaps may still do so) under depositions, placing an even greater burden upon the staff.
The staff is directed to proceed immediately in accordance with this order, and to report to the board within 10 days following the service of this order.
l 3/
This points to another difficulty the board has with the l
staff 's handling of this interrogatory.
The staff shifted
~
the inquiry from " time and attendance cards" to " manpower system records" but it is silent as to whether the requested information is presently efficiently retrievable from another source.
. UCS interrogatory 211 requests NRC staff inputs to the Status Report.
Counsel for the staff and counsel for NRC have, at the board's suggestion, agreed to proceed under 10 CFR $2.744, and the board accepts UCS's motion to compel an answer to interrogatory 211 as if it were a request under that section.
This understanding is discussed in the staff's response to UCS's motion to compel, pp. 3-4.
It should be noted that counsel for NRC staff has misstated UCS's interrogatory 211.
Where UCS seeks "the staff inputs to the status report" staff counsel states that " drafts of the Status Report" are the documents requested.
Id. p.4.
We recommend that respective counsel confer concerning the nature of UCS's request.
In the meantime there is nothing before the board with respect to UCS interrogatory 211.
THE A10MIC SAFETY AND LICENSING DOARD 1
M Ivan W. Smith, Chairman Bethesda, Maryland April 2, 1980
.