ML20009C172
| ML20009C172 | |
| Person / Time | |
|---|---|
| Site: | South Texas  |
| Issue date: | 07/17/1981 |
| From: | Gutierrez J NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD) |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| NUDOCS 8107200344 | |
| Download: ML20009C172 (28) | |
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UNITED STATES OF Af1 ERICA h
e NUCLEAR REGULATORY C0llt11SSION t
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l g[5 BEFORE THE AT0f11C SAFETY AND LICENSING BOAR c-i
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In the flatter of 4
HOUSTONLIGHTINGANDPOWERC0f!PANY,h Docket Nos. 50-ET AL
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50-499 4
(South Texas Project, Units 1 & 2
).
STAFF RESPONSE TO BOARD QUESTIONS OF JUNE 20, 1981 I.
INTRODUCTION This tiemorandum is filed in response to a Board request of June 30, 1981, for briefs from the parties relative to the circumstances under which the Staff may be compelled to reveal the names of persons ider.ti-fied by letters in I&E Reports and the evidentiary treatment the Board should give such reports in the event infomer's names are not revealed.
The Board specifically asked the parties three questions:
1.
tiay the Staff be required to identify, to the parties and the Board but not necessarily to the public, the names of scle or all individuals identified in inspection reports by letters or numbers.lf I
If In posing this questien the Board asked the parties to assuna the following:
.... assume that a party is seeking identificatior. in order l
to present its case, that the inspection report bears upon i
a factual matter at issue in the proceeding, that the indi-viduals in the report have not been positively identified I
through other means, and that a conflict or potential con-flict with other factual evidence on a significant matter is apparent.
(Tr. 5315).
The Board also asked the parties to address in their briefs whether it was material to disclosure whether an informant was also a I
participant in an event in question and whether it was significant that.a limited, rather than a total, pledge of confidentiality wa':
extended an infomant.
(Tr. 5315).
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lI 8107200344 010717 PDR ADOCK t.JOOO498 G
.If the Staff may not be required to identify individuals, 2.
should the I&E Report be excluded or stricken from evidence insofar as its truth is concerned on motion of a party, and in what circumstance, if any, should this be done?
3.
If the I&E Report is adnissible, may a Board, decline to accord it any weight solely because of the failure to identify some or all of the unidentified individuals in the report.
Tr.5314-16.2/
A briefing schedule was then established; briefs were to be sub-mitted by July 17, 1981, and the. Board'would hear oral argument on the evening of July 20, 1981, the beginning of the next hearing session.
(Tr. 4570). The Staff strongly objected to briefing such an issue in theabstract(Tr. 4570-71).
2/
During the afternoon session on June 17, 1981, the Board stated its tentative position relative to the necessity of knowing the iden-titius of informants in I&E Reports:
The Board right now will state that we have come to a tentative conclusion.
What we would do is if there is an objection made to a report or a portion of a report, and if the objection is made on the basis of the informant is confidential and the name has not been revealed, we would require those names to be revealed, at least to the parties and the Board.
We aren't stating that we wouldn't enter some sort of protection.
Absent that, we would strike the report from the record, at least insofar as it bears upon the truth of the matters as to which confidential informants are not produced.
I'm stating this is a tentative conclusion.
We would allow the parties to brief this question, howevec, if they wish to do so.
Tr. 4569-70.
The Licensing Board further indicated that after ruling on these ques tions it would certify the questions involved to the Atomic Safety and Licensing Appeal Board. Tr. 5314.
Should the Licensing Board confirm its tentative conclusions the Staff would urge it to follow such a course.
O O
. It is the Staff's position that, although the legal principles are fairly well settled in this area, whether a particular name in a specific situation should be required to be revealed 'is totally depen-dent upon the factual surroundings. Thus, to brief the issue absent a motion to compel a particular individual's identity is prenature.
Whether an infomant's identity is required for a proper decision in this operating license proceedingfis detemined by, inter alia, the sub-stance of the infomant's infomation, & reason such infomation is offered, the issue before the Board such infomation relates to, whether such infomation can be obtained from other sources and whether the infomation provided is contested by other parties. See i IIIA, infra.
As a predicate to framing these three questions, the Board indicated it felt it was [not] possible to establish definitively the overlap and duplication among the verious incident reports submitted by the varicus parties and that in order to clarify this matter. it may be necessary to compel the Staff to identify some of the individuals in its investi-gative reports.
(Tr.5314). The Staff emphasizes that the names of its l
confidential sources are not needed for a determination in the proceeding.E y
As the record has developed over the first five weeks of hearing.
Staff counsel is unable to f fnd one incident in the record which cannot either be correlated with an I&E Report or which constitutes a separate incident not covered in such a report.
If the Board has a question on t6 ether specific incidents testified to by Applicants or Intervenors witnesses are covered in I&E Reports, it can put that question to the appropriate Staff witness when he takes the stand in September.
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4-II.
STATEftENT OF THE CASE By Commission Order, dated September 22, 1980, the Licensing Board was directed to consider Houston Lighting and Power's (HL&P) technical competence and character, as well as quality assurance / quality control (QA/QC) issues during an expedited hearing and to render an early and separate decision on those aspects relative to an operating license.4/
In the Commission Order, the Board'was further directed to look not only at charges that Houston Lighting & Power Co. abdicated too much responsibility for construction to its contractor, Brown & Root, Inc.,
and that the utility demonstrated an unacceptable failure to keep itself knowledgeable about necessary construction activity; but also, to look at the broader ramifications of these charges in order to deter-mine whether, if proven, they should result in denial of the operating license.5/
In an attempt to implement the Commission's broad instructions, issues were formulated in the Board's Second Prehearing Conference Order of December 2,1980, and the parties engaged in discovery. On Octo-ber 28, 1980, Citizens Concerned About Nuclear Povar (CCANP) requested information from the Staf t concerning "the names of those inspectors l
who supplied information about harassment at the South Texas Nuclear l
l 4/
Houston Lighting and Power Company (South Texas Project, Units 1 and 2), CLI-80-32, 12 NRC 281, 291-92 (1980).
5/
12 NRC at 291-292.
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5-Project and the nanes of those saployees who harassed and intimidated them."0I The Staff objected to this request; however, the Licensing Board compelled discovery in a Menorandum and Order of March 24, 1031.
The Appeal Board re/ersed, stating that the Intervenors failed to demon-strate more than a speculative need for revealing the Staff's confidential sources.
See generally, Houston L'ighting & Power Co. (South Texas Project, Units 1 & 2) ALAB-639 Slip Op. p.15 (May 8,1981) (hereinafter referred to as ALAB-639).
Hearings began on May 12, 1981, and the question of identities of persons referred to by letter in Staff I&E Reports resurfaced in the course of cross-exanination.
(See Tr. 4472). Although ALAB-639 was decided in the context of a discovery request, the legal principles and standards any board must employ as a precursor to compelling disclosure of a government informant during a hearing or trial are substantially the sane. Thus, what follows is a discussion of those standards relative to the three questions recently raised by the Board, together with other broader issues those questions raise.
6/
[CCANP] Request for Information From NRC Staff, October 28, 1980.
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6-9 III. DISCUSSION A.
May The Staff Be Required To Identify To The Parties And The Board, But Not Necessarily The Public, The Names Of Some Or All Individuals Identified In Inspection Reports By letters Or Numbers (1) The Government Informers Privilege.
Initially, it should be stressed, the Staff does not dispute that it may be compelled to reveal the names of persons whose identity is necessary for a determination of factual issues herein if a party moving for disclo-sure of such names makes the requisite showing to overcome the Government privilege of protecting its confidential sources of information.1/ To date, the Staff has argued such a showing f.as not been made by any party moving for the disclosure of persons des'gnated only by a letter in an I&E Report. An appreciation of the rationale underlying the informer's privilege and the standard this Board must apply if asked to rule on a motion to compel the identity of an informant is a condition precedent to elaborating upon the Staff's response to the Board's first question and to addressing the assumptions provided by the Board.
In ALAB-639, the Appeal Board stated:
The Supreme Court has recognized "the Government's l
privilege to withhold from disclosure the identity of persons who furnished information of violations of law to officers charged with enforcement of that law. The purpose of the privilege is the furtherance and protection of the public interest in ttfective law enforcement. The privilege 7/
This assumes, of course, that the Staff has proffered an informant's
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statement or information supplied by the source to the trier of fact for the truth of the matter stated therein.
Perforce, if confronted with a motion to compel, the Staff always has the option to withdraw
+he proffered evidence and preserve the informant's confidentiality.
However, tit Staff again emphasizes that findings can be made in this proceeding without knowledge of confidential sources.
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recognizes the obligation of citizens to communicate their knowledge of the commission of crimes to 1ra enforcenent officials and, by preserving their anonymity, encourages them to perform that obligation." Roviaro v. United States, 353 U.S. 53, 59 (1957) (citations omitted).
This "infonner's privilege" obtains not only in criminal cases but exists (perhaps even more strongly) in civil cases [ citing In re United States, 565 F.2d 19, 22 (2nd Cir.1977),
certiorari denied sub nom. Bell v. Socialist WorkersParty436U.S.962TIU78)],andis embodied as all in the Freedom of Information Act.
[ citing 5 U.S.C. 6 552(b)(7)(0); Church of Scientology v. De3artment of Justice, 612 F.2d 417 (9th Cir. 1979); lix v. United States, 572 F.2d 998 (4th Cir.1978).] KLAB-639 at Slip op. p. 5-6.
The Appeal Board went on to say that it is beyond dispute that the Government informer's privilege applies in NRC proceedings. ALAB-639 at Slip op. p. 6; citing, Northern States Power Co. (Monticello Plant, Unit 1), ALAB-10, 4 AEC 390, 395; _Id., ALAB-16, 4 AEC 435, aff'd, 4 AEC 440 (1970); 10 C.F.R. ll 2.744(d), 2.790(a)(7), and 21.2.8_/
8/
In Northern States Power Co., ALAB-10, at 395 the Appeal Board ruled
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that the Commission's confidential investigatory sources should not be revealed in discovery or at hearing, stating:
We think it sound policy that, when information is given in confidence, the names of the persons giving it may properly be withheld from disclosure.
As stated in the House report dealing with a like matter under the Freedom of Information Act:
"[A] citizen must be able to confide in his Government. Moreover, where the Government has obligated itself in good faith not to disclose documents or information which it receives, it should be able to honor such obligation."
(See, Attorney General's Memorandum on the Public Information Section of the Administrative Procedure Act, June 1967, pp. 32-33).
(Continued)
I O
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The Appeal Board further noted 10 C.F.R. 5 21.2 explicitly invites individuals who become awsre of problems in safety-related activities at nuclear power plants to report them to the appropriate Com-mission office, tendering assurance that, as authorized by law, the iden-tity of anyone so reporting will be withheld from disclosure. ALAB-639 at Slip op. p. 6-7.
Thus, the Commission's regulations contem? ate l
holding in confidence the names of persons supplying information relative to safe plant construction and operation.
10 C.F.R. 2.744(b)(c) and (d),
as well as, 2.790(a)(7) also incorporate this policy by prohibiting release of confidential information except where disclosure is needed to establish a material fact necessary to a proper decision in a proceeding.
See ALAB-639 at Slip op. p. 7, n. 15. The Appeal Board emphasized that the need to protect confidential informants is not an academic concern to the NRC. The Energy Reorganization Act of 1974, as amended, 9 210, 42 U.S.C.
9 5851 (1980) was cited as Congressional recognition of the need to safe-guard from retaliation those persons who assist the NRC in carrying out its safety responsibilities. ALAB-639, Slip op. p. 8.
8/
(Continued)
We further believe that a showing that there was an explicit understanding that information was being given in confidence is not an absolute prerequisite for this nondisclosure consideration to apply.
For example, the surrounding circumstances, when viewed in the light of an historical pattern of non-disclosure, may support a deter-mination that it was entirely reasonable for the party giving the information to assume that it was being given in confidence.
In this connection, consideration here should be given to the possible adverse effect any such disclosure might hava on the ability of AEC inspectors to obtain full and cand1d expression of the views of individuals they interview during the course of an inspection. 4 AEC at 395.
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In NRC' proceedings, workers at nuclear construction sites are an invaluable source of information to the NRC.E Such individuals are particularly in need of and entitled to protection through anonymity.
See e.g. Hodgson v. Charles Martin Inspectors of Petroleum, Inc. 459 F.2d 303, 306 (5th Cir.1972). Absent this vital supply of infonnation, the NRC inspection program would be dependent'upon its Resident Reactor Inspector and periodic visits by Regional Reactor Inspectors and Investi-gatcrs to gather all information effecting safety related activities at plants. A blanket disclosure of the names of informants in the instant case could effectively dry up sources at the South Texas Project, as well as, adversely affect the Staff's credibility in extending pledges ofconfidentialityatothersites.E 9/
The need for maintaining the confidentiality of informants on nuclear construction sites is analogous to the need for such confidentiality under the Fair Labor Standards Act, 29 U.S.C. 59 201, et seg. The qualified informers privilege is generally applicable in actions by the Secretary of Labor against employers to enforce the provisions of that Act. Wirtz v. Continental Finance and Loan Co. 326 F.2d 561, 563 (5th Cir.19T4T; Wirtz v. McDade, 330 F.2d 610, 610-11 (5th Cir.
1964); Walling v. Richmond Screw Anchor Co. 4 FRD 265, 269 (E.D.N.Y.
1943).
The raticnale offered is that (1) employees, who are usually the informants, are especially susceptible to fear of retaliation by l
the employer and (2) the government to a great extent relies on receiving information from employees in order to effectively enforce the Act. The issue in such proceedings is whether there has been a statutory violation, not the identity of informers.
See generally; Application, In Federal Civil Action, Of Governmental Privilege Of Non-disclosure Of Identity Of Informer, 8 ALR Fed 6, 57 (1971).
10/ Although it is initially for a licensing board, when presented with a motion to compel, to determine whether the informer's privilege is properly asserted, the Appeal Board in Northern States Power Co.,
supra, at 399, stated the board should give great weight to the position of the Staff director since this official is most aware l
of the adverse impact disclosure of privileged information might have on the Commission's regulatory progra :.
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The Appeal Board in ALAB-619 set forth the standard which this Board should apply in the event a motion is made to compel disclosure of the name of an individual who provided information to an NRC fespectnr and is designated by
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letter in an I&E Report:
The privilege to wi'5 hold the names of confidential informants is not absolute; it must yield where the informer's identity "is relevant and helpful to the defense of an accused, or'is essential to a fair detennication of a cause." Roviaro, supra, 353 U.S. at 60-61.
In the matter before us the Power Company, not Citizens, is the " accused"; we must therefore focus on the second prong of the test.15/
The issue is thus whether the Licensing Buerd abused its discretion in ordering the staff's confidential informants revealed to these intervenors as "necessary to a proper decision in this proceeding." ALAB-639 at Slip op. p. 7.
Footnote 15 in the above quote referred the reader to 10 C.F.R. 95 2.744(d) and 2.790(a)(7).
10 C.F.R. il 2.744(b), (c) and (d) read together with 10 C.F.R. 2.790(a)(7) exempts from disclosure NRC records and documents, as well as the names of confidential informints, except where such information is necessary for a proper decision in the proceeding and the information is not reasonably obtainable from another source. Thus, if faced with a motion to reveal the name of any person designated only by a letter in an I&E Report, and if this person provided information which the NRC used in preparing that report, the Staff would resist disclosure and maintain the following showing must be made to overcome the informer's privilege:
First, the movant would have to show that the name of the individual, in contrast to the information he supplied, is essential for a proper decision of an issue in this operating license proceeding, and second, that the information is not reasonably obtainable from another source.
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S Specula' tion that a confidential source may aid in the proper decision of an issue is not enough to overcome the public interest in the protection of the informer. United States v. Prueitt, 540 F.2d 995, 1003 (9th Cir.1976), cert denied, 429 U.S.1053 (1977); United States
- v. Marshall, 532 F.2d 1279,1282 (9th Cir.1976).
Indeed in ALAB-639, the Appeal Board determined that, to.date, Intervenors had failed to show anything more than a speculative need for revealing the Staff's confidential sources. ALAB-639 at Slip op. p. 15. Merely stating that names of infonnants are needed to prepare one's case or to confirm one's theory of a case is legally insufficient to compel disclosure.
To old otherwise would render the privilege useless. Cf. ALAB-639 atSlipop.p.13.E I
11/ The Board must also keep in mind that when disclosure of confidential sources will lead only to cumulative evidence, such disclosure should not be ordered. Suarez v. United States, supra; Wirtz v. Robinson &
Stephens, Inc., 368 F.2d 114, 115 (5th Cir 7.6)7 In the instant proceeding, to the extent HL&P has admitted matter; or the parties are not in substantial disagreement on an issue, nothing further would be gained by ordering disclosure. As stated by the Appeal Board, Intervenors must first show that their informants tell a significantly different story than that reported by the Staff before disclosure of Staff informants might be considered. ALAB-639 at Slip op. p. 13.
This precondition would appear to be equally applicable to any motion to compel disclosure by the Applicants.
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With respect to the second prong of this test, it has not been J
l established that the identity of many of the sources and the facts con-
-l cerning many of the incidents could not have been ascertained by the other parties without having the staff identify its confidential sources.
In this regard, the Staff would iote that, to date, the record does not evi-dence any inability on either the Applicants or the Intervenors part to gather informtion relevant to this hearing and effectively bringing such information to the attention of the Board. This fact is critical in light of the observation made in Northern States Power Co., supra at p. 399:
In this connection, we note that the necessity for disclosure is sharply reduced where available alterna-tives for obtaining information are present.
In the face of a proper privilege claim, the proponent for disclosure should demonstrate convincingly that infor-mation already furnished or otherwise available is not adequate under the circumstances.
In this case, it would seem that with respect to much information obtained by the Staff through informants, the other parties could obtain similar inforration through inquiry among their sources of information l
at the plant. The burden on the movant to show that such identity is essential because the matters reported could not be verified by other means is not necessarily an easy one.
It is self-evident that such a showing can only be properly r.onsidered when made in the context of a motion to compel disclosure of a particular individual, thus, requiring the Board to balance the public interest in protecting the flow of l
information to tL2 Commission, against the rights and needs of the party seeking disclosure of a particular individual. ALAB-639 at Slip op.
pp. 14-15; Northern States Power Co., ALAB-10, supra at 395.
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No dist'inction is drawn in the Commission's regulations between a motion directing the Staff to produce confidential information by an Applicant or an Intervenor.EI All parties must satisfy the two prong test that an informer's identity is necessary for a proper decision and the infonnation is unavailable from other sources, in order to be successful in a motion to compel disclosure.
Although ALAB-639 cited Roviaro v. United States, 353 U.S. 53, 60-61 (1957), for the proposition that an accused may obtain an informer's identity when it is relevant and helpful to tae defense of an accused, and likened HL&P to an accused, Roviaro is a criminal case and its applicability to an administrative proceeding involving a re.gulated industry is limited. Moreover, in light of the other cases cited in ALAB-639,EI and the Commission policy stated therein relative to confidential soerces, it is unlikely the Appeal Board meant, without expressly holding, that upon a mere showing of relevancy and helpful-ness an Applicant may obtain NRC confidential sources. Such a position would be unique in civil federal jurisprudence and contrary to when an informer's paivilege generally must be sustained in civil litigation.
1_2,/ See, 10 C.F.R. 9Q 2.744, 720 and 21.2.
2
_13/ See, ALAB-639 at Slip op. p. 6-M.
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Specifica11y', in federal civil litigation disclosure is ordered only where the informer's identity or communications is essential to a fair detennination of the case, after balancing the public's intere9 in protecting disclosure with that of the private litigant.
See, 8 ALR Fed., supra, at p. 31 (and the cases cited therein). This is esseni.ially the standard set forth in ALAB-639.
s a limitation upon this general principle, the Applicants suggested that during the hearing under certain fact situations they may have a Fifth Anendment procedural due process rigi;t to the names of sources of information the Staff may seek to rely upon to prove the material facts in the Staff's case in order to confront and cross-examine such persons.
See generaly, Board of Regents v. Roth, 408 U.S. 564, 573 (1972);
Cafeteria Workers v. McE'r,oy, 367 U.S. 886, 898 (1961); McNeil v. Butz, 480 F.2d 314, 319 (4th Cir. 1973); Ringquist v. Hampton, 582 F.2d 1138, 1141 (7th Cir.1978); Cf. Vitarelli v. Seaton, 359 U.S. 535 (1959).
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Obviously, absent a specific motion, the Staff need not and cannot address the merits of such a claim.
It has been held the requirerients l
l of the due process clause are flexible and require only "such proce-dural protections as the particular situation demands." Morrissey v.
Brewer,408U.S.471,481(1972); Ringquist v. Hampton, 582 F.2d 1138, l
l l
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v' 9
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1140 (7th Cir.173). Therefore, the merits of any procedural due process claim would have to be weighed individually as it may arise.E Of particular relevance to the instant proceeding, and to the Appli-cants' basis for access to such names, is the principle that where, as here, the acts complained of are admitted, the disclosure of confidential sources will not be ordered.
Black v. Sheraton Corp. of Acrica. 47 F.R.D.,
263, 270-7! (D.C.D.C. 1969). This principh stands even in the face of a constitutional claim that such information should be provided to permit one to confront and cross-examine their accusers. McNeil v. Butz, 480 F.2d 314, 322 (1973); see also, Goldberg v. Kelley, 397 U.S. 254, 269 (1970); Morrissey v. Brewer, 408 U.S. U 1, 489 (1972). The importance 14/ For example, if the Applicants had contested the enforcement action stemming from 79-19 and the Staff had to prove each element of each violation, to the extent the Staff relied upon infonner's statements as proof of the facts in its case the Applicants' might have had an drGttable basis to show its need to know the names of those informants l
and question them by reason of the due process clause of the Fifth Amendment. The Applicants did not contest allegations of harassment and intimidation, but stated "our own review suggests that such 1
l incidents probably did occur." Staff Exh. 47, littachment, p. 1.
Similarly in regard to allegations of intimidation and harassment l
in the Show Cause Order, the Applicants conceded that the instances set forth on the first item of noncompliance in the notice of violation issued as a result of inspection 79-19 probably did occur.
Staff Exh. 91, p. 2.
It also stated the items of noncompliance in that report "are essentially substantiated" and paid a $100,000 l
civil penalty. Staff Exh. 90. The Applicants cannot now choose j
to dispute these matters. See 10 C.F.R. 5 2.202(e).
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of confrontatirm and cross-examination are only relevant to these situations where factual allegations are in dispute. McNeill v. Butz, 480 F.2d at 322. Where one has admitted the :onduct complained of, he has no reason to obtain the name of the Gover.nent's source as he now admits the truth of the allegation, and does not need the name of any informant.E 5pplying this principle to the instant case, any motion based upon a claimed constitutional right relative to violations which have been admitted by the Applicants should be denied. Once the Applicant's admit certain violations, they become their own accusers and any need to know the confidential souces,the Staff relied upon vanishes.
See, McNy,ill, v.
Butz, 480 F.2d 314 (4th Cir.1973) and cases cited therein.
Further, in NRC proceedings this purported need to know the name cf informants particularly vanishes where matters are conceded in reply to a Commission Show Cause Order.
10 C.F.R 9 2.202(e) provides:
15/ la McNeill, two federal workers were discharged without being given the opportunity to confront and cross-examine their secret accusers.
One of the two, McNeill, admitted a sufficient amount of the activity, but not all, to provide a basis for his discharge. The other worker had not made such admissions. The Fourth Circuit held with respect to McNeill, that since his admissions were sufficient to warrant tenninution the opportunity to confront his accusers would have availed him nothing; in effect, he had become his own accuser.
480 F.2d at 326.
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LThe consent of the licensee to the entry of in order shall constitute a waiver by the licensee of a hearing, findings of fact and conclusiors of law, and of all right to seek Canmission and judicial review or to contest the validity of the order in any forum. The order shall have the same force and effect as an order made after hearing by a presiding officer or the Commission.
Thus, where matters are not contested in respo.nse to a show cause order the f' acts alleged therein are established, and may not be contested.
The important point is that the Applicants have admitted sufficient matters to substantiate the charge that they failed to control activities affecting the safety related functions of structures; and therafore, proving the part~cular incidents cited by the Staff or the conditions found by the Applicants in their investigation, which led them to concede such incidents "probably Jid occur" is not essential to the instant operatinglicenseproceeding.E (2) Application Of The Government Informers Privilege To The Board's Assumptions In posing the first question, the Board asked the parties to assume the following:
.... assume that a party is seeking ider;;i-I fication in order to present its case, that the inspection report bears upon a factual matter at issue in the proceeding, that the individuals in the report have not been positively identified through other means, and that a conflict or potential conflict with other factual evidence on a significant matter is apparent.
(Tr. 5315).
1_6/ This detennination is particularly mandated by the possibility of
" drying up" the Staff's sources of information at the South Texas Project should the disclosure of confidential sources be required.
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In the light of the principles and standards set forth in the previous sections of the memorandum and in particular ALAB-639, whether the identity of an individual is important to an individual party's case is not of itself legally sufficient to compel disclosure. What one seeking disclosure must show to the satisfaction of the Board, is that the name is essential for a fair determination of an issue or contention and that the identity cane.oc be obtained by another means.
See ALAB-639 at Slip op. p. 7.
The Appeal Board seems to set out a "but for" test.
Thus, if "but for" the identification of an informer an issue cannot properly and fairly be decided by this Board, then disclosure of that name might be ordered..It is only in this situation that a motion to compel disclosure might be appropriate. Of course, the facts the Board asked the parties to assume would be relevant considerations in the Board's overall determination of whether the moving party had met its burden of showing disclosure of an informant's identity is essential for a fair determination of an issue or contention and the information could not be gathered from other sources.32/ However, no assumption alone or in combination with another assumption given by Ltc B03rd would, per se, warrant disclosure.
I 17/ The question of whether a source in an investigation report has been " positively identified" is immaterial. The questions are whether knowledge of the source is necessary for a determination I
of the issues, and if so, could the information necessary for the determination ha gathered by other means. Similarly, the relevancy l
of the information sought is not along sufficient to compel dis-The Board must also find the information is essential closure.
to a determination of the ultimate issues, ar,J not available from other means.
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The Board next asked relative to disclosure, would it matter if the person whose identity was being protected was also a participant or protagonist in an event in question.
(Tr. 5315).
Based upon the rationale set forth earlier that the privilege is for the benefit of the government to obtain information it would not appear to be determina-tive of the question of disclosure whethe'r persons supplying informa-tion to the NRC were also participants in the event in question or even protagonists. Once the Government obtains information in return for a pledge of confidentiality or under circumstances warranting nondisclosure it has an interest, trart from the individual informant, in keeping con-fidential an individual's name regardless of the culpability of the informer. As stated in ALAB-639 at Slip, op. p. 14:
" Clairvoyance is not needed to appreciate that word of the breach of confidentiality would spread and the likelihood of informants coming forward with safety related information in future cases be diminished.
The privilege against disclosure is held by the Government and the principle reason is to protect and promote the flow of information to authorities. Although it may appear that an individual who is a protagonist is less deserving of protection than an innocent worker, if viewed from the NRC's viewpoint of pranoting and protecting a free flow of information from the workers on the South Texas project to the Commission, the identities of both individuals require equal O
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I protection.
Again, to state such a principle in the abstract based upon general policy considerations is simple; however, the factual settings in which a motion to compel an informer's identity is made, the
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reasons proffered by the movant for his need in knowing such information, and the issue or contention it allegedly relates to all contribute to whether such a name should be ordered disclosed.
Lastly, the Board asked if it weald make a difference relative to disclosure if "a limited pledge [of confidentiality were extended] such as appears in at least one I&E Report." The Staff takes this to be a reference to I&E Report 81-17, wherein it is stated:
On April 21, 1981, Mr. D.D. Driskill,1RC Investig4Nr. was interviewad and advised that on October 27, 1980, he had telephonically contacted Individual C between 7:00 and 7:30 p.m.
Mr. Driskill explained that during the NRC investigation 50-498; 50-499/80-34, Individual C was identified to him as a person who could identify some irregularities at the Electrical Termination Shack at the South Texas Project.
Mr. Driskill explained that Individual C was (1) assured confidentiality, barring any court or legal hearing process, that Individual C's identity would be protected, and (2) assured that NRC would investigate within the next two days.
I&E Report 50-498/499-80-17, p. 4.
The Staff does not interpret this pledge of confidentiality as warranting a relaxation of the standard a moving party must meet as a 18/ In contrast, in criminal cases where the infonnant was also a participant in the crime as opposed to a mere tipster it has been held to be a relevant factor in judging whether his identity should be disclosed.
Contrast, United States v. Silver, 580 F.2d 144 (5th Cir.1978); United States v. Alonzo, 571 F.2d 1384 (5th Cir.1978);
United States v. DOE, 525 F.2d 878 (5th Cir.1976) cert den. 425 U3. 976 (1976).
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precondition to a Board Order to disclose Individual C's identity. The only other interpretation which could be given this pledge is that Individual C's confidentiality would cease with the commencement of "any court or legal hearing process." Such an interpretation in effect would render the pledge worthless since, at the time this pledge was extended, there was already this conterted operating lichnse proceeding. To have any impact at all, the pledge in question has to be read to mean, absent a court or board order compelling disclosure during a hearing process.
Individual C's identity would be protected.
Again, that order should only issue after this Board makes the requisite findings of necessity for a detennination of an ultimate issue and that information cannot be gatheredbyothermeans.E B.
If The Staff May Not Be Required To Identify Individuals In I&E E Reports Should The Report Be Excluded Or Stricken From The Record 1&E Reports are public reports prepared by representatives of the federal government pursuant to authority granted by law.
Rule 803(8)(C) of the Federal Rules of Evidence states in relevant part:
-19/ The Appeal Board in Northern States Power Co., ALAB-10, supra at 395, stated that the Government's privilegc in the non-disclosure of confidential sources could trise from circumstances surrounding the giving of information as well as from an exp ess pledge of confidentiality. See n. 8, supra. Thus a " limited pledge of con-fidentiality" could not lessen the government's right to refuse to disclose its confidential sources if the circumstances of the giving of the information to the Government showed it was reason-able for the party giving the information to believe it was given in confidence.
20/ In light of the Staff position set forth in 6 IIIA of this brief, a situation where the postulated evidentiary decision would have to be made is unlikely; however, the Staff would offer the following rules of evidence for Board guidance.
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The following are not excluded by the hearsay rule, even though the declarant is available as a witness:
(C) in civil actions and proceedings and against the Government in criminal cases, factual findings resulting from an investigation made pursuant to authority granted by law, unless the sources of infonnation or other circumstances indicate lack of trustworthiness.
This Rule embodies the recognded common law exception to the hearsay rule for public. records based upon the assumption a public official will perfonn his duty proptrly and the unlikelihood he will not remember details independent of his report. See, Advisory Committee's Notes on Rule 803(8)(c) of the Federal Rules of Evidence, reprinted in 28 USCS Appx., Federal Rules of Evidence, p. 533; see also Admissibility, under Rules 803(8)(c) of Federal Rules of Evidence, of " Factual Findings Resulting From Investigations Made Pursuant to Authority Granted By Law, 47 ALR Fed. 321, 324 (1980). Licensing Boards have been guided by the Federal Rules of Evidence in the past.
See, Illinois Power Company (Clinton Power Station, Unit Nos.1 and 2), 4 NRC 27, 31 N.2 (1976).
By authority of this Rule, administrative investigatory reports are routinely accepted into evidence for the truth of the matters stated therein in civil litigation. Baker v. Elcona Homes Corp., 588 F.2d 551 (6th Cir.,1978), cert den. 441 U.S. 993 (1978) (police report in which investigating officer determined one vehicle in accident ran a red light, held admissible under 803(8)(C)); Melville v. American Home Assur. Cn.,
443 J. Supps 1064 (ED Pa. 1977), rev'd on other grounds, 584 F.2d 1306 l
(FAA Airworthiness Report which impugned the mechanical safety-of the t
model aircraft involved in crash, held admissible in a suit to collect insurance proceeds following death in that model aircraft by reason of 803(8)(C)); Connecticut Light & Power v. Federal Power Commission, 557 F.2d 349 (2nd Cir.1977) (citing 803(8), inter alia, in rejecting an applicant's argument that evidence accepted by the Administrative Judge in determining a river was navigable.was impermissible hearsay).
The Commission's rules of practice contemplate the routine admissions of NRC Staff prepared documents.
53, 10 C.F.R. 2.743(g) and (h) (I&E Reports are not, however, explicitly mentioned in i 2.743).
To exclude I&E reports would be a substantial departure fron thir Com-mission practice, and accordingly this sanction should not be utilized absent some compelling reason. This is so especially since by reason of the inspectors' impartiality they are inherently reliable, cf.
In Re Hamlin Testing Laboratories, Inc., 2 AEC 423 (License Renewal Application) (1964), and their reporta have been admitted fcr the truth of the matters stated therein. M.
In the instant case, the trustworthiness and validity of the I&E Reports, and the Notices of Violations set forth therein, are enhanced by virtue of the fact the Applicants admitted to many of the violations contained in this reports.
In addition to the Applicants' admission is the fact that the I&E Reports which may be the subject of evidendary challenge have already been stipulated into evidence by all the parties with respect to l
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admissibility and authenticity,2_1/ and this stipulation was accepted by this Board.
Stipulations entered " freely and fairly" should not be set aside except to svoid manifest injustice. Johnson y, Internal Revenue Service. 495 F.2d 1079 (6th Cir.1974).
Indeed, within NRC practice stipulations are encouraged in a licensing proceeding to avoid time consuming evidentiary hearings, related delays and associated costs.
See, e.g., Maine Yankee Atomic Power Co. (Maine Yankee Atomic Power Station), CLI-74-1, 7 AEC, 2, 3 at n.1 (1974).
Immeasurable delay
.ill occur if the Staff cannot rely upon I&E Reports, and conse-ouentially, must submit detailed testimony by Staff inspectors and investigators.
In the instant case, at the time this stipulation was entered into, all parties were represented by competent counsel, and accordingly, should be bound by their actions.
C.
If The Report Is Nevertheless Admissible, May A Board Decline To Accord It Any Weight Solely Because Of The Failure To Identify Some Or All Unidentified Individuals I&E Reports, due to the impartiality of the inspectors preparing the reports, like other NRC Staff documents which must be introduced as evi-dence in a licensing proceading (10 C.F.R. 6 2.743(g)), are inherently l
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21/ This stipulation stated in relevant part:
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Pursuant to 10 C.F.R. 2.753, it is hereby stipulated and l
agreed by and between the parties to the above captioned proceeding, by and through their respective attorneys and representatives, ti.at the following exhibits may be stipu-lated and admitted into evidence, in lieu of formal proof, with respect to their admissibility and authenticity and l
not with respect to the truth of the matters therein stated; subject, however, to the general objection on the part of any party as to the materiality and relevancy of i
the said exhibits.
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reliable and therefore should be given great weight by the trier of fact.
Cf,. In Re Hamlin Testing Laboratories, Inc., 2 AEC 423 (1964) and cases cited in i B, supra. This is consistent with the approach in 803(B)(C) of the Federal Rules of Evidence; admitting public documents into evio~ence for the truth of the matters stated therein, unless the source of the information or other circumstances. indicate lack of trustworthiness.
It should not be lost sight of that the Staff is acting in accord with the unique role it plays in the statutorily established licensing and regu-latory process.
Obviously, until the Staff testifies during the September sessions of this proceeding, the' Board cannot inform itself of the circumtances surrounding the preparation of any particular I&E Report and cannot therefore judge whether the inspections and reports were performed and prepared under any conditions other than would indicate trustworthi-ness. To date, there is no evidence on the record to question the trustwortt f any Staff Report. However, the Advisory Committee on the then Proposed Rule 803(8)(C) listed four suggested factors in aiding the determination of trustworthiness: (1) timeliness of the l
investigatica; (2) special skill or experience of the official; (3) whether a hearing was held; and (4) possible motivational problems.
I Baker v. Elcona Homes Corp., 588 F.2d 551, 558 (6th Cir., 1978) cert den. 441 U.S. 933, U.S. (1978). Each factor needs to be weighed when judging the trustworthiness of a specific challenged report.
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. IV. CONCLUSION For the reasons aforesaid, it is respectfully requested the Board:
(1) withhold from making any general ruling relati';e to disclosure of Commission informants; (2) rule only in response to particular motions to compel disclosure of specific individuals in accordance with the above outlined legal principles; (3) admi.t or do not strike ISE Reports and (4) accord those I&E Reports great weight absent a showing that such reports lack trustworthiness.
Further, the Staff respectfully requests the Licensing Board to certify the questions here involved to the Atomic Safety and Licensing Appeal Board should this Board reject the Staff's position.
Respectfully submitted,
' Jay 'i. Gutierrez
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Counsel for '- : Staff Dated at Bethesda, Maryland this 17th day of July,1981.
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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATdMIC SAFETY AND LICENSING BOARD In the Matter of HOUSTON LIGHTING AND POWER COMPANY, Docket Nos. 50-498 ET AL.
50-499 (South Texas Project, Units 1 & 2),
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CERTIFICATE OF SERVICE I hereby certify that copies of " STAFF RESPONSE TO BOARD QUESTIONS OF JUNE 20, 1981" in the above-captioned proceeding have been served on the following by depcsit in the United States nail, first class, or, as indicated by an asterisk, hand delivered, or as indicated by a double asterisk, served by Express Mail, or as indicated by a triple asterisk, through deposit in the Wuclear Regulatory Commission's internal nail system, this 17th day of. July,, '1981:
Charles Bechhoefer, Esq.
Chairman
- Brian Berwick, Esq.
Atomic Safety and Licensing Board Assistant Attorney General Panel Environmentc1 Protection Division U.S. Nuclear Regulatory Commission P.O. Box 12548, Ca.pitol Station Washington, DC 20555 Austin, TX 78711 Dr. James C. Lamb III Jack R. Newman, Esq.*
313 Woodhaven Road Lowenstein, Newman, Reis.
Chapel Hill, NC ?.7514 Axelrad & Toll 1025 Connecticut Avenue, N.W.
Mr. Ernest E. Hill Washington, DC 20036 Lawrence Livermore Laboratory University of California Mrs. Peggy Buchorn**
P.O. Box 808, L-123 Executive Director Livermore, CA 94550 Citizens for Equitable Utilities, Inc.
Melbert Schwarz, Jr., Esq.
Route 1, Box 1684 Baker and Botts Brazoria, TX 77442 One Shell Plaza Houston, TX 77002 Mr. Lanny Sinkin**
Citizens Concerned About William S. Jordan, III, Esq.*
Nuclear Power Harmon & Weiss 2207 D. Nueces 1725 I Street, N.W.
Austin, TX 78705 Suite 506 Washington, D.C.
20006 m e.
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Kim Eastman. Co-coordinator.
Atenic Safety and Licensing Board Barbara A. Hiller Panel ***
Pat Coy U.S. Nuclear P.egulatory Cor.uistion Citizens Concerned About Nuclear Washington, DC 20555 Power 5106 Casa Oro Atomic Safety and Licensing Appeal San Antonio, TX 78233 Board Panel ***
U.S. Nuclear Regulatory Comission Docketing and Service Section***
Washington, DC 20555 Office of the Secretary U.S. Nuclear Regulatory Commission.
Washington, DC 20555
$xM M tierrez v Jay M. Gy'or NRC Staff Counsel f e
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