ML20046D106
| ML20046D106 | |
| Person / Time | |
|---|---|
| Issue date: | 08/10/1993 |
| From: | Robert Davis NRC OFFICE OF THE GENERAL COUNSEL (OGC) |
| To: | Margulies M Atomic Safety and Licensing Board Panel |
| Shared Package | |
| ML20046D096 | List: |
| References | |
| 93-673-01-PF, 93-673-1-PF, NUDOCS 9308160141 | |
| Download: ML20046D106 (7) | |
Text
'
l UNITED STATES OF AMERICA I
NUCLEAR ROCDLATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD Before Administrative Law Judge Morton B. Margulies j
)
In the Matter Of
)
Docket No. 93-01-PF
)
LLOYD P.
ZERR
)
ASLBP No. 93-673-01-PF
)
)
HBC'S OPPOSITION TO RESPONDEUT'S MOTION TO CLOSE FILES The Defendant, Lloyd P.
Zerr, caused to be docketed in this case on July 29, 1993, the " Respondent's Motion to Close Files"
(" Motion").
The Defendant's motion seeks an order requiring the sealing of the ASLB file, the removal of previous filings from the NRC's Public Document Room, and cessation of delivery of filings to the Public Document Room, pending further Order.
t The United States Nuclear Regulatory Commission ("NRC"),
through counsel, hereby opposes that motion with one exception.1 7
The Defendant's motion is undermined by pertinent facts and i
considerations of the public interest which are not presented in:
the motion.
Indeed, as shown below, the Motion falls far short of a required demonstration that justice requires the requested relief.
First, the Defendant fails to ground his motion in-the i
controlling regulations.
Indeed, the Defendant simply ignores 1
The NRC would not oppose an Order discontinuing the delivery of the parties' filings to the public' document room if Chief Administrative Law Judge Margulies determined that justice required such an Order.
This would not preclude disclosure of such filings pursuant to FOIA.but would reduce the likelihood of publication of such materials to those with no particular j
interest in the matter.
9308160141-930810
[U PDR-MISC tt 9308160142 PDR bd
i 2
'l
[
1 the fact that federal law generally (such as FOIA, see 5 U.S.C.
S 552) as well as the pertinent NRC regulations expressly favor i
public access.
In particular, the NRC's regulations provide that j
i
"[t]he record may be inspected and copied (upon payment of a j
reasonable fee) by anyone, unless otherwise ordered by the ALJ pursuant to S 13.24."
10 C.F.R.
13.35(c).
Under S 13.24, a party "may file a motion for a protective order with respect to discovery sought by an opposing party or with respect to the j
hearing, seeking to limit the availability or disclosure of
-i evidence."
10 C.F.R. S 13.24(a).
The presiding ALJ is then authorized to make and issue "any order which justice requires to protect a party or person from annoyance, embarrassment,
[
oppression, or undue burden or expense...."
10 C.F.R.
S 13.249(b).
Such orders may limit attendance at deposition, require the sealing of a deposition, limit the disclosure of facts relating to any criminal investigation, or require simultaneous filing of sealed documents or information.
Id. at S 13.24(5)-(8).2 Moreover, both civil and criminal trials are " presumptively open proceedings and open records are fundamental to our system of law."
Brown & Williamson Tobacco Corp. v.
F.T.C.,
710 F.2d 1165, 1177-79 (6th Cir, 1983) cert. denied, 465 U.S. 1100; sgg also Nixon v. Warner Communications. Inc., 435 U.S. 589 (1978).
The presumptive right of the public to inspect and copy court records and files is a "long-established legal tradition."
In Re 2
Also, under 5 13.30, the regulations provide that
"[t]he hearing shall be open to the public unless otherwise ordered by the ALJ for good cause shown."
i i
3 Knoxville News Sentinel Co., 723 F.2d 470, 473-74 (6th Cir.
t 1983).
Only the most compelling reasons can justify non-l disclosure of judicial records,3 id., for "once a matter is i
brought before a court for resolution, it is no longer solely the parties' case, but also the public's case.
Absent a showing of extraordinary circumstances the court file must remain accessible to the public."
grown v.
Advantaae Enaineerina. Inc.,
960 F.2d 1013, 1016 (11th Cir. 1992).
In fact, the news media routinely cover allegations in the courts regarding wrongdoing by public officials and employees.
Second, the Defendant's motion is completely indiscriminate in its effort to require the sealing of all records.
Its breadth would include the complaint, any decision in the case, and all evidence submitted.
Yet, there is no focused showing of the types of materials or particular documents that would create injustice to the Defendant if disclosed.
Moreover, there is no demonstration that evidentiary material to be sealed would otherwise be unavailable to the public, as, for instance, if a member of the public requested a copy of Mr. Zerr's official i
travel records under the Freedom of Information Act.
Such extraordinary circumstances include juvenile
[
3 proceedings, see e.a. Ohio v. Akron Center for Reproductive Health, 497 U.S. 502 (1990), where an ongoing government investigation may be jeopardized, see United States v.
- Coiab, 1993 WL 219542 (2d Cir. 1993), the protection of a government informant whose life had been threatened, Clark v.
Lewis, 1993 WL 232354 (9th Cir. 1993), the protection of trade secrets, Leucadia. Inc.
v.
ADolied Extrusivi Technoloaies. Inc., 1993 WL 221528 (3rd Cir. 1993), and the protection of the release of privileged attorney-client information, crystal Growers Corp. v.
Dobbins, 616 F.2d 461 (10th Cir. 1980).
t 4
l l
Third, the Defendant advances his position only marginally I
by noting that the allegations of violation of travel and overtime regulations are unproven.
This is true of all judicial and quasi-judicial case files open to the public prior to decision.
i Fourth, the Defendant claims that he is damaged in his ability to carry out his employment.
While it is the NRC's' belief that Mr. Zerr is employed by a firm engaged in consulting on matters of NRC regulation, Defendant has not explained or i
substantiated his factual claim of real damage to his ability to carry out his employment.
?k Fifth, even if the record were sealed at this point, it would remain true that the record to date revealing the nature of the allegations has already been made available to the public.
j The complaint and all filings since the filing of the complaint have been made available to the public in the document room.
Taking back all documents in the public document room, microfiche copies, etc., would not affect those members of the public who l
may have read or obtained copies of such documents.
In addition, i
the Defendant's belated motion overlooks the burden upon the Board, the parties and the NRC that would ensue from requirements that all records be sealed, and all records previously filed in the Public Document Room be retrieved.
l t
t f.
j l
5 For the foregoing reasons, the NRC respectfully requests that the Defendant's motion be denied, with the one exception-noted above.
Respectfully submitted, (7 T W D
Roger /K. Davis Daryl M.
Shapiro U.S. Nuclear Regulatory Commission Office of the General Counsel Mail Stop 15 B18 Washington, DC 20555 Tel. 301/504-1606 Attorneys for the NRC DATED:
August 10, 1993 l
i
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD Before Administrative Law Judge
-j Morton B. Margulies
)
i In the Matter Of
)
Docket No. 93-01-PF
)
LLOYD P.
ZERR
)
ASLBP No. 93-673-01-PF
)
)
t I
CERTIFICATE OF SERVICE
~l I hereby certify that copies of the foregoing "NRC's opposition to Respondent's Motion to Close Files" was served upon the following persons by U.S. mail, first class, except as indicated by an asterisk through deposit in the Nuclear j
Regulatory Commission's internal mail system, this 10th day of August, 1993.
Morton-B. Margulies*
Lloyd P.
Zerr Chief Administrative Law 718 13th Street, NE Judge Washington, DC 20002 Atomic Safety and Licensing Board, Mail Stop EW-439 Timothy E. Clarke, Esq.
U.S. Nuclear Regulatory 5 North. Adams. Street Commission Rockville, MD 20850 Washington, DC 20555 (original plus two copies)
Office of Commission Appellate Adjudication
- 1 U.S. Nuclear Regulatory l
Commission Washington, DC 20555 Roger KU Davis U.S. Nuclear Regulatory r
Commission Office of the General Counsel Mail Stop 15 B18 Washington, DC 20555 l
Tel. 301/504-1606 x
~
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION i
Docket No. 93-01-PF In the Matter of Lloyd P.
Zerr ASLBP No. 93-673-01-PFC e
i i
CERTIFICATE OF SERVICE I hereby certify that copies of the foregoing " letter I
enclosing NRC*S OPPOSITION" in the above-captioned t
proceeding have been served upon the following persons by l
U.S. Mail first class, except as otherwise noted, this lith day of August 1993:
office of Commission Appellate I
Adjudication U.S. Nuclear Regulatory Commission Washington, D. C.
20555 Roger K. Davis, Esq.
l Daryl M. Shapiro, Esq.
Office of the General Counsel Mail Stop 15 B 18 U.S. Nuclear Regulatory Commission Washington, D.
C.-20555-Morton B. Margulies Chief Administrative Law Judge Mail Stop EW-439 s
U.S. Nuclear Regulatory Commission Washington, D.
C.
20555 l
Lloyd P.
Zerr-718 13th Street, N.E.
Washington, D. C.
20002 Timothy Clarke, Esq.
5 North Adams Street Rockvilla, Maryland 20850 bam hl JMmes M.
Cutchin V