ML20031H045
| ML20031H045 | |
| Person / Time | |
|---|---|
| Site: | Crane  |
| Issue date: | 10/22/1981 |
| From: | Milhollin G Atomic Safety and Licensing Board Panel |
| To: | |
| References | |
| ISSUANCES-SP, NUDOCS 8110270082 | |
| Download: ML20031H045 (14) | |
Text
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L' SERVED OCT231981 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION 00CMETED USHRC
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ATOMIC SAFETY AND LICENSING BOARD Before Administrative Judge Gary L. Milhollin ST 23 Ni 50 as Special Master 4
0FFICE OF SECRETAR'f 00CMETING & SERVICt SRANCH In the Matter of Docket No. 50-289-SP 7,
METROPOLITAN EDISON COMPANY (Restart)
(Reopened Proceeding)
(Three Mile Island Nuc~ ear Station, Unit 1)
October 22, 1981 N
MEMORANDUM AND ORDER ON CONFIDEN11ALITY O
9 I.
Background
On July 31,19E1, the Office of Inspector and Auditor of the
.q United States Ne. lear Regulatory Commission reported that candidates for the posit'ons of reactor operator and senior reactor oprator at the nuclear power reactor at Three Mile Island, Unit 1, cheated on their NRC licensing examinations.
It also reported that the NRC had f ailed to proctor the examination properly and had f ailed to detect the cheating when grading the examination papers. On August 1, 1981, the NRC's Office of Inspection and Enforcement filed a similar report, in which two candidates admitted in signed statements facts which constitute an admission of cheating.
/s a result of these investiga-tions, the Atomic Safety and Licensing Board on September 14, 1981, Q
ordered that the above-entitled proceeding be reopened to evaluate the S
effect this cheating might hive on the conclusions the Board reached j
8110270082 811022 0500028
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gg pgiq jgsgPargial Initial Decision of August 27, 1981. The Board also appointed me Special Master under 10 CFR 2.722 (1981) for the purpose of conducting the reopened proceeding.
The purpose of this Memorandum and Order is to decide to what extent individuals who may have cheatea on examinations, or who have been or may in the future be accused cf cheating, are entitled to have their identities held confidential.
The parties to the reopened pro-ceeding have taken the following positions un this question:
the NRC Sta), urges that cor.fidentiality is required by the NRC's Rules of Practice and by the regulations which implement the Freedom of Infor-mation Act; the Intervenors, Mr. and Mrs. Aamodt and Three Mile Island Alert (TMIA), urge that confidentiality is inconsistent with tha need to examine and to refer to those who cheated in order to discover whe-ther management condoned or encouraged cheating and to discover how much cheating there was; attorneys for th,e individuals who were in-volved in cheating oprase public disclosure on the ground that intense feeling in the community may result in threats or other harm to the individuals and their. families; the Licensee, GPU Nuclear Corporation, takes the position that it has no legal right to refuse to identify these individuals by name through the normal process of discovery, but suggests a lettering system which, if adopted by the Special Mas-ter through exercise of his discretion, could preserve anonynity at least until individuals are called to testify; the Commonwealth of
v
/
- Pennsylvania takes no position on the legality of disclosure, but recommerde discretionary use of the Licensee's lettering system.
The parties were given an opportunity to make these argume.its orally and ir writing at a confe ence among the parties held in Harrisburg, Pennsylvania on October 2. 1981.
At that time the Special Master ruled from the bench that the Licansee's lettering system should be used to f acilitate discciery until such time as a final ruling on confidentiality could be made.
(Tr. 23,228.)
I'.
The timing of this decision As stated 4:;ve, the parties are now using the lettering system proposed by the Licensee.
That system consists of replaciog, by letters, the names of individual candidates in investigatory reports, examination papers, and seating diagrams.
Tae system is working; discovery is proceeding rapidly.
However, wt.en the evidentiary hear-ing begins on November 10 it will thc.. he necessary to decide whether cinfidentiality will be maintained.
Individual operator candidates will be called to testify; they will N asked about their own conduct, their kaowledge of the conduct of other operators, and the conduct of management.
That decision will be appealable, first to the Atomic Safety and Licensing Board (Tr. 23,119-120') and then, perhaps, to the Ato.iic Safety and Licensing Appeal Board, and to the Commission.
The time required to decide such an appeal would probably enount to three
e t.
or four weeks, at a minimum.
Unfortunately, the schedule for this reopened proceeding cannot accommodate such a delay.
The balance of the Licensing Board's initial decision will be issued in late November (cnpublished Licensing Board Order of Septem-ber 3, 1981).
If that decision is f avorable to -astart, the Commis-sion will decide by early Januc y whether to make the decision inned-iately effe'.tive. Metropolitan Edison Company (Three Mile Island Nuclear Station, Unit 1), CLI-81-19, 14 NRC
, slip op. at 3 (August 20,1981).
At that point, however, the Commission will not have a complete record before it because the Licensing Board rendered its first Partia' Initial Decision (P.I.D.) subject te the outcome of this special proceeding.
P.I.D., August 27,1981 at 27. Therefore,.
in order to provide the Commission with a timely ooportunity to rule on a complete record, this proceeding must go forward (and will go forward) on an extraordinarily rapid schedule.
As things now stand the evident'ary hearing in this proceeding 3hould be completed in November of 1981. Under this schedule the Special Master could, if necessary, make a preliminary report in Dece.nber or early January regarding the co' tent of the record.
A delay to decide appeals on confidentiality would preclude such a report.
Under the present schedule the Specin.1 Master's final report is due in early January, and the Licensing Board's decision or the final report on the first of February, 1982.
I
- For the reasons stated above, a ruling on confidentiality will now be made so that an appeal can be decided before the evidentiary hearing begins.
III. Confidentiality as a matter of right A.
With respect to the Licensee.
The Licensee ncw stands ready to disclose to any party in this case the identity of any present or former employee whose name may be linked to cheating on operatcr examinations. The Licensee points out that neither the Privacy Act nor the Freedom of Information Act (both of which are discussed below) applies to the Licensee's records.
Thus, the Licensee does not assert any legal basis for refusing a properly-drawn discovery request which seeks these identities. The Licensee also states that, in its opinion, there are no solid grounds upon which individual employees would be legally entitled to prevent disclosure by the Licensee.
From this it follows that the only way in which the Licensee could refuse to supply the identities would be if the Licensee were ordered not to supply them by the Special Master.
As stated above, the Licensee recummends that the Special Master make such an order through the use of his discretion. The Special Master's decision on discretion is set out below.
9 With
_;pect to the law applicable.o the Licensee, there is little doubt about 'he soundness of the Licensee's position.
Both the Privacy Act, 5 U.S.C. @ 552a (1974) and the Freedom of Information Act, 5 U.S.C.
552 (1977), apply to government agencies only, not to the Licensee.
Nor Joes either of these Acts give a private individual the right to prevent disclosure. Chrysler Corporation v. Brown, 441 U.S. 281, 60 L.Ed. 2d 208, 99 S.Ct.1705 (1979) (no private right of
- ction where a government agency elects to disclose).
The result is that the litigants to this case are fully entitled under the law to obtain che information they seek.
In the absence of the Special Master's discretion, mentioned above, there is no barrier to discovery from the Licensee.
B.
With respect to the NRC Staff.
The Staff urges that the identities of the individuals accused of cheating are not discoverable from the Staff because they fall within tvo except:ans to 10 CFR 5 2.790, the rule which makes final NRC documents generaily avail Nie to the public.
These exceptions are coatained in %% 2.790(a)(6) and 2.790(a)(7).
The first, in 2.790(a)(6), exempts " personnel and medical files and similar files, the disclosure of which would constitute a clearly unwarranted inva-sion of personal privacy." This language is the same as that in 10 CFR 9.5(a)(b), which implements the Freedom of Information Act
o I
- s (5 U.S.C. 5 552 (1977)).
The second, in 2.790(a)(7), exempts
" investigatory records compi'.cd for law enforcement purposes, but only to the extent that the production of such' records would... constitute an unwarranted invasion of personal privacy...".
There is, again, a parallel provision in 10 CFR 9.5(a)',/), implementino the Fraedom of Information Act.
With respect to 2.790(a)(6), there is considerable doubt whether that exemption is intended to shield th3 type of infor-mation sought here. The concern of the exemption, as the Staff points out, is with the " personal quality of the information in the file,"
}Lne Hobby U.S,A
- v. !.R.S., 502 F.2d 133,135 (3d Cir.1974), and i
with " intimate details of a highly personal nature," Getman v.
N.L.R.B., 450 F.2d 670, 675 (D.C. Cir.1971).
Thc qualifications cf an individual reactor operator for his job are rather different from th at.
They are not " intimate details o; a personal nature," they are objective facts necessary to resolve an issue of central relevance to the restart proceeding.
Those qualifications include, of course, the f act of whether the operator cheated on a licensing examination.
With respect to 2.799(a)(7), however, which deals with investi-gatory reports, it is clear that the exemption applies.
The names of the operators involved in cheating first appear in NRC investigative reports, so tie policy of protecting the pr'vacy interests of indi-viduals named in these reports is brought squarely into play.
In order to decide whether to implement at policy in a particular case,
i
- a balancing test is required.
10 CFR S 2.744 p:ovides that the presiding officer may order production of an I?C record exempt under 5 2.790 if its " disclosure is necessary to a proper decision in the prtceeding and the document, or the information therein is not rea-
., ably obt ainable from another source...".
This balancing test in 5 2.744, which weighs the need for a proper decision against the interest in privacy, is similar to that used by the courts in cases under the Freedom of Information Act where this 3 language is at issue.
See Columbia Packing Co., Inc. v. Draartment of Agriculture,
{
563 F.2d 495, 498 (1st Cir. 1977); Wine Hobby, supra, at 136; Getman
- v. N.L.R.B., supra, at 674.
However, t n i balancing test is appar-ently not required under 5 2.744 if the "information...
is...
rea-sonably obt ainable from another source...".
Here, o' course, it is
" reasonably obtainable" from the Licensee.
This would appear to make the above inquiry moot unless the Special Master exercises his discre-tion so as ?.o olock the Licensee's disclos.ure.
As im'icatad below, this discretion will not be so exercisca, at least at this time. The result with respect to the Staff, therefore, is that it is unneces-sary to decide which way the balance under @ 2.744 should tip with respect to information which is also obtainable from the Licensee.
Such a result might not be reached if it were deciAA tt the protection enioyed by the Staff's reports should be extended, as a matter of policy, to the Licensee.
It could be argued that the policy i
)
I I
_9 underlying the exemption for investigatory reports is principally one o pre erving the government's power to investigate effectivel.y.
Tf identities of persons mentior d in raw investigatory data are r leased, persons could be inhibited from speaking candidly to inves-tigators.
This power might well be undermined if the snne information contained in the government's reports could be obtained directly from the Licensee through routo dir overy. However, the fact that Con-gress did not choose to make tlia Freedom of Information Act or its exemptions aoplicable to private entities weakens such an argument considerably. Further, the NRC Staff in this case has not r2 quested that the exemption ce extended to the Licensee.
Finally, the language of 2.744, quoted above, appears to view disclosure of information by the Licensee as a clear alternative to disclosure by the NRC Staff.
The result is that no basis appears irl aw for extending any of the l
concepts peculiar to the Freedom of Information Act to the Licensee.
The only basis could lie in the Special Master's discretion as dis-cussed below.
There remains the question of information which may be available only from the Staff's investigatory records.
In this case, those records contain the identities of persons who have provided informa-tion relative to cheating.
These persons Will be c;11ed as witnesses.
They may give testimony which describes acts or words which amount to cheating by others, or which reflects upon management's possible v
t.
implicat;,n in the cheating.
Such testimony is very likely to be contradicted by other testimony.
It is obviou, that ehatever facts emerge from this conflicting testimony will be important to the ques-tion of operator competence at 'MI-1, and of great interest to the community surrounding the reactor. The policy in favor of public hearings is designed to avoid having testimony such as this received in camera.
Absent a f ar stronaar showing in favor of confidentiality than the Staff has made so far, the community's right to have these matters aired publicly means that the balance under 10 CFR 5 2.744 must be struck in favor of public disclosure.
It follows that there is no legal right on the part of the Staff to hold these identities confidential.
C.
'With respect to rights asserted by private individuals.
Counsel for three persons who have been involved in cheating incidents entered appearances. They argued that their clients' names should be held confidential.
However, they cited no persuasive authority for the propos.ition that their clients had any individual rights against either the Staff or the Licensee.
Instead, ti.ay cited evidence that the intense feeling in the community, where all the individuals still reside, may result in harm to the individuals a.a thtir families if identities are disclosed.
They indicated that
/ this f act should be taken into account by the Special Mastcr in the exercise of his discretion.
In the recent decision of Chrysler Corooration v. Brown, supra, the Supreme Court of the Un'.ed States decided that individualt Save no private right of action under the Freedom of Information Act to enjoin disclosure of documents by a governmental agency.
This deci-sion would be relevant to a decision +o disclose by the f4RC Staff.
However, in this case the Licensee stands ready tc disclosa, an.i no authority whatever has been cited for the propositio. that private individuals have a right against the Licensee.
IV.
Confidentiali g[ as a matter of discretion Under 10 CFR 2.718, a presiding officer has all powers neces-sary to conduct a f air and impart', 1 hearing. Under 10 CFR 2.722, a Special Master must be assumed to have these same powers with respect to those_ matters wich the Master has been appointed to Pear.
From this it follows that a Special Master has the power to hold information ccnfidential if to do so would increase the likelihood of a f air and impartial hearing.
In this case, it appears that confi-dentiality would have that effect to the extent that it increases the likelihood of compiling a full and accurate evidentiary record.
If such a record were made more likely, for example, because witnesses l
t accused of wrongdoing would be more coope ative under confidentiality, then it might be proper to exercise discretion to facilitate such cooperation. Also, granting co.) identiality might advance the policy underlying the exemption for investigatory reports, as explained above.
However, thest benefits of confidentiality may be possible only at the cost of placing practical burdens on other parties, and at the cost of sube-dinating the general policy, contained in 10 CFR 2.751, of having NRC hearings be public.
A weighing of these c^a-siderations determines whether discretion should be exercised, and to what extent.
The information rought fram the Staff's investigatory reports can be divided into two types.
First is the identity of those who-cheated.
Second is the manner in which they cheated, the extent to which they cheated, their knowledge of cheating by others, their knowledge of management's attitude toward cheating, and their knowl-edge of the extent to which the integrity of the examination process could have been or was in fact compromised by other devices, such as coaching, or knowledg'e of questions in advance, which would permit dn unqualified candidate to become licensed.
It is possible that the second type of infcrmation could be explored without going into the first.
It is also possible that it could not be. The persons involved in cheating will be called as witnesses.
Other persons called as witnesses will be asked about the persons involved :q
s cheating.
Both TMI A and Mr. ar
- Mrs. Aamodt assert that disclosure is necessary. TMIA contends 1at it would be confusing, and perhaps impossible, to develop a factual record on the cheating without referring to specific, 2.viduals by name during questioning of the witnesses.
There is also the public interest in open hearings.
At this time it is difficult to predict what, if any, arrangements for confidentiality will be feasible.
It is, however, clear now that testimony by those involved in cheating, and about those involved in cheating, will be of vital importance to issues in the reopened pr saeding, and it is clear that all litigants have the right to participate effectively in exploring this testimony.
Any claim of confidentiality which cori/licts with this right must give way.
Since it is not possible now to say with confidence whether.it will eventually be feasible to reconcile confidentiality with litigants' rights and the public *nterest in open hedrings, it is imprudent to exercise discretion to prevent disclosure. This is true even though it still appears that a reasonable accommodation may be possible through in camera proceedings and protective orders.
V.
Pt_:l i ng It is the ruling of the Special Master' that there is no right, on behalf of the individuals involved in cheating incidents, the
s Licensee, or the NRC Staff, to prevent the disclosure of the identi-ties of these individuals during the hearng process.
VI.
Effectiveness of this ruling This Order refusing to grant confidentiality is immediately appealable to the Atomic Safety and Licensing Board (Tr. 23,120).
A party may apoeal this Order within seven (7) days af ter its service by filing a notice of appeal and a supporting brief.
Any other party may file e brief in support of or in opposition to the appeal within seven (7) days af ter the appeal.
caring pendency of any appeal, and until further notice, confidentiality shall be maintained by use of the lettering system, referred to above, or by such other order of the Special Master as shall become necessary.
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2L9 Gary L. diilhollin d.
ADMINISTRATIVE JUDGE Dated at Bet! e,da, Maryland, this 22nd day of October, 1981.
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