ML20134E017
| ML20134E017 | |
| Person / Time | |
|---|---|
| Issue date: | 08/01/1985 |
| From: | NRC OFFICE OF INVESTIGATIONS (OI) |
| To: | |
| Shared Package | |
| ML20134E011 | List: |
| References | |
| FOIA-85-460 82-100, NUDOCS 8508190545 | |
| Download: ML20134E017 (1) | |
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e 0FFICE OF INVESTIGATIONS INVESTIGATIVE PROCEDURE MEMORANDUM NO.82-010
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SUBJECT:
MIRANDA WARNINGS OBJECTIVE To inform investigators about when to give the Miranda warnings to interviewees.
BACKGROUND Persons interviewed during the course of NRC investigations may have comitted criminal as well as civil violations of statutes or NRC regulations.
Consequently, the question arises as to whether such persons need be given the 1
warnings required to be furnished to criminal suspects by(the Supreme Court decision in the case of Miranda v. Arizona (384 U.S. 436 rulings (comonly known as "Miranda warnings").
GENERAL POLICY Miranda warnings will not be furnished by OI investicators to persons interviewed during the course of OI investigations unless (1) the interviewee is in custody or (2) OI management directs that such warnings be given because of some special circumstance which exists.
A person is in custody if incarcerated, under arrest, or otherwise significantly deprived of freedom for As 01 any reason, even if it is not related to the matter being investigated.
i investigators nonna11y do not interview persons who are in custody, Miranda warnings are rarely required.
Any questions 'regarding this area that arise during an investigation should be directed to 01:HQ for resolution.
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ESCLOSURE 1
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Acril 11,1983 CH AIR M AN Earl J.
Silbert, Esq.
Schwalb,_Donnenfeld, Bray & Silbert Suite 400 2828 Pennsylvania Avenue, N.W.
Washington, D.C.
20007 Re:
NRC Advisory Committee on Rights of Emoloyees Under Investication
Dear Mr. Silbert:
The Commission believes that in order to aid the Advisory Committee in its deliberations it would be advisable to delineate exactly what questions the Advisory Committee should address.
Those questions are as follows:
1.
Should the NRC as a matter of policy apprise,all interviewees prior to an interview that they have a right to have an attorney present?
(a)
Should there be different policies for those merely being questioned to obtain information and for those being personally investigated, i.e.,
" suspects"?
(b)
If the NRC shoulf advise interviewees of their right to an attorney, what form should that advice
- take, i.e.,
published rule, oral advice, signed acknowledgement, etc.?
2.
May, and, if so, should the Cc= mission limit an intervie.:ee's chcice of counsel by excluding from the interview any atterne;.ho also represents the entit3 being investigated?
2.
Should the SRC alle.- interviewees to tape record the interview and/cr should the URC record the interview at the recues; cf an 4 '
viewee?
(a) f so, should the NRC afvise of this right orior to the interview, and, if so, what form should that advice take?
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(b)
Under what circumstances should the interviewee be allowed to keep the tape or a copy of the tape?
(c)
If the interviewee records the interview but the NRC does not, should the N"' insist on having a j
copy of the tape?
)
4.
Should the NRC give all interviewees express grants of confidentiality?
(a)
What limitations, if any, should be placed on grants of confidentiality by the NRC?
(b)
Should there be'different policies for different types of interviewees, e.c.,
those who come i
forward on their own, and those whom the NRC has to seek out?
i (c)
Should the NRC grant confidentiality in the absence of a recuest for confidentiality?
(d)
Should the NRC advise witnesses of the availability of confidentiality, and, if so, what form should this notification take?
I hope this further guidance will assist the Committee in its task.
The co=ission would, of course, welcome any other coments which the Comittee might have on these subjects.
Sincerely,
'.a fbAL -
Nun:
. Palladino I
Treated as Chair. an Correspor. dance F.e f. - C?.- E3-51 Cricinatinc Office:
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.f *%'e, UNITED STATES
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NUCLEAR REGULATORY COMMISSION ma.saowctow, c. c. rous r
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oooo April 11,1953 we
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Earl J. Silbert, Esq.
5:hwalb, Dennenfeld, Bray & Silbert Suite 400
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282E Pennsylvania Avenue, N.W.'
Washington, D.C. 20007
.Re:
NRC Advisery Cor-ittee on Rights of E=cloyees Under Investientien
Dear Mr. Silbert:
The Cc==ission believes that in order to aid the Advisory Cc==ittee in its deliberations it would be advisable to delineate exa::1y what questiens the Advis:ry Cc==ittee should address.
Those questiens are as fellows:
1.
5heuld the NRC as a matter of p51 icy apprise all-interviewees. prior to an interview that they have a right to have an attorney present?
(a)
Should there be different policies for those rerely being cuestioned to obtain infermatien and for those being pers nally investigated, i.e.,
" suspects"?
(b) 'If the NRC should advise interviewees of their right to an attorney, what form should that advice d
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- take, i.e., published rule, oral advice, signe nckncvledganent, etc.?
I 2.
May, and, if se, should the Cc==issien limit an -
interviewee's ch6 ice of counsel by excluding from the
'i:terview any at:czney who also represents the entity being investigated?
3.
Should the NED allow interviewees te tape record the interview and/or should the NRC re:Ord the interview at the request of an interviewee?
ka)
If se,,should the NRC advise of this right pric:
the interview, and, if se, what fcrm should that advice take?
2 (b)
Under what circu= stances should the interviewee be allowed to-keep the tape or a ecpy of the tape?
(c)
If the interviewee records the interview but the NRC does not, should the NRC insist on having a copy of,the tape?
4.
Should the NRC give al'1 interviewees express grants of confidentiality?
(a)
What limitations, if any,,should be placed on crants of confidentiality by the NRC?
(b)
Should there be different policies for.different types of interviewees, e.c., thos.e who come forward on their own, and those whom the NRC has
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to seek out?
(c)
Should the NRC.' grant confidentiality in the
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absence of a request for confidentiality?
(d)
Should the NRC advise witne'ses of the s
availability of confidentiality, and, if so,. what form should this no.tification take?
I. hope this further guidance will assist the Co==ittee in its task.
The Com ission would, of course, welcome any other c--- -'= which the Co=tittee right have on these, subjects.
Sincerely,
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. Palladino O
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0 ENCLOSURE 3 t
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It i 7 5l US. Department ofJustice CriminalDivisigg n r - ;l.....na.,r.
.s.>u Asstant Attorney General Washington. D.C 29Kr...
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Munzio Palladino Chairman Nuclear Regulatory Commission Washington, D.C.
20555
Dear Chairnan Palladino:
The Criminal Division has reviewed the report of the Adviscry Committee created by the NRC to comment uper its pclicies and proce6ures in investigations cf the Commissior's licensees.
While the report does not articulate what is meant by the term " licensees", presumably the recommendations in the report would apply to investigations of builders and operators of nuclear power plants, as well as other persons and entities handling nuclear material whose activities are directly or indirectly subject to regulations and licenses granted by the NRC.
The report then recommends implementing certain procedures fer NRC investigators to follow when interviewing employaes of the licensees.
Che four questions which the Committee was asked tc address cencerning interviews of the enployees, are:
(1). Should the NFC apprise all interviewees prior to ar interview that they have a right to have an attorney present?
(2)
May, and if so, should the Commission limit an interviewee's choice of counsel by excluding from the interviaw ary attorney who also represents the entity being investigated?
(3)
Should the NRC allow interviewees to tape record the interview, and/or shculd the NFC tape record the interview at the request of the interviewee?
(4)
Should the NRC give all interviewees express grants cf confidentiality?
This letter will address those Cc=mittee recommendatiens with which we disagree er believe need further amplification.
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Ouestion No. 1 At paces 7-8 of its report, the Comhittee recommends that an inter"iewee be advised of his right to counsel when the investigator has reasonable grounds to believe that he has committed a criminal offense and the focus of the investigation shifts from information gathering to developing further evidence of the person's criminal liability.
For a number of 1egal and practical reasons, we believe that such a recuirement would be unsound and contrary to the public interest in the safe operatien and construction of nuclear plants.
To begin with, the judicial cases which have decided this very issue, including those by the Supreme Court, have uniformly held that a person need not be advised of a right to counsel, or a richt to remain silent for that matter, until that person has been taken into or placed in custody for the alleged crime.
The whole purpose of Miranda warnings is to afford some safeguard against coerced or comoellad confessions of guilt while the person is in custody.
Orecen v. Mathiaser, 429 U.S.
492, 494-95 (1977): United Statas v. Beep.with, suora, 425 U.S.
341, 345-46 (1976).
Absent such circumstances, there is a preeminent public interest in finding out the truth about what occurred.
Furthermore, as the Supreme Court has recognized, it is not only permissible but desirable for society to find this out from the susp= cts thenselves, since they usually know the ecst about what occurred.
See United States v. Washincton, 431 U.S.
181, 186-87 (1976); United States v. Wonc, 431 U.S.
174, 179-180_n.8_(1976);
United States v. Manduiano, 425 U.S.
564, 573-574 (1975).
If there is any area where a paramount cencern must be finding out investigat.cns of activities involvinc or which could i
the truth, affect the safe use of nuclear materials must certainly be one of them.
For. example, the NF.C may hr.ve infcrmation revealine that certair data may have been concealed er fairified, such as impcrtant safety tests, welding x-rays alleged to be bogus, or defective and inferior building materials falsely reported as being of higher quality.
See 42 U.S.C.
552272 & 2273 (b) ; 18 U.S.C. 51001. 1/
If not discovered, these kinds of defects and the potential Yor harm that they may create, could be hidden under concrete, or' could otherwise go undetected.
Even where seme of the misconduct is discovered, it is egually essential te find out whc was responsible in order te determine the tota 3 extent of the ccnditions contribu'ing to the pctential danger, 1/
We perceive no societal interest nor constitutional or lecel basis supporting a more preferential policy for those who ere susner:ed cf such criminal violatiens, which may directly or ind'irectly affect the safety of a nuclear facility, than fer employees or outsiders suspected of violations of 42 U.S.C.
52284 (destrcyire or causing physical damage to a nuclear facility),
fer example.
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and to prevent or discourage repetition of similar types of conduct when the NRC is not aware of it.
The Committee, at page 8 of their report, acknowledges that the prinarv goal of NRC investicators is to get to the bottom of allegations of violations of NRC requirements which may have potential for causing great harm to the public. The Committee further acknowledges the adverse or chilling affect upon the NRC's ability to get this information from uarning a person that he has a right to an attorney -- part of the Miranda warnings given upon arrest of an individual.
The preeminent consideration of the NRC, then, must be to get this information'without 1
violating constitutional rights, rather than creating restrictions not required by law that could impair or discourage l
this flow.
Indeed, the more likely that a person has committed l
such violations, the more critical it is for the NRC to obtain the information, and the greater the responsibi,lity of the agency to obtain it.
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Furthermore, in most investigations of this sort, the determination of whether the purpose of questiening is to obte.in l
information that will be used against that person in a prosecution, is not made, nor should it be made by an NRC investigator.
This kind of determination usually would not be rade until the prosecutor decides that a crime did in fact occur, and that a specific person probably will be charged with the
- crime, i.e.,
that he is a target of the investigation.
Another very impcrtant fact, as noted in previous correspondence, is that enployees (or ex-employees) have baen the 4
primarv source of information concerning violatione that can affect the safe operation and construction.of nuclaer facilities.
i Since the employees perforn their tasks at their superior's direction, and maintain their jobs hy performing.in conforncnce with sue.h direction whether it is proper or improper, not erly is the investigater nct the persen to dacide whether the empleyae will probably be prosecuted, but warning him could chill a valuable source of 2nfermation to the advantaae of those who are actually responsible for causing the violations to occur.
Even in an unusual case where a subordinate committed criminal violations of.his own accord, the NRC has an intense interest and duty in discovering this, not only with respect to existing violations, but to prevent those which can occur in the future if the wrengdoer is not ferreted.out and prosecuted. 2/
2/
This potential for harm, of course, is not present with respect to violations of the Internal-Revenue Code, referred to by the Cc=rittee, which only irrelves a recoverable loss of money i
frem an individual tanpeyer.
It is interesting to note that not only does no other agency to our knowledge follow or use the IRS guidelina as an example, but the IRS itself has been observed not following these guidelines without disapproval from the Courts.
(rootnote continues en following page).
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I Whila the Committee report states that fairness and decency requires that such warnings be given, if this were so, the Supreme Court and numerous other Federal courts when faced with this issue, would have required the warnings.
Certainly all of these courts could not have been insensitive to recuirements of
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j To the contrary, if the NRC'without 4
fairness and decency.
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violatina constitutional rights uses all lawful means'at its i
disposal to. discover violations of regulations, many of which can have extremely dangerous or harmful consequences to the public, and ferrets out those responsible for them, that is the fair and i
decent thing.
While persens who may authorize or commit violations may believe this is unfair, the NRC is not obligated i
te implement procedures such persons micht find advantageous, i
Indeed, there are unsettling. implications of premature concerns future investigations inasmuch expressed to the Committee about j
as the criminal sanctions would only apply to intentional and deliberate efforts to circumvent NRC's scfety rules and reculations.
I Accordingly, we would request and advise that these recettendations not be adopted.
Question Nc. 2 J
i Questien 2 deals with potential conflicts of interest i
an interview or testimony of an arising from the presence at At empicyee, of an attorney who also represents the company.
the Cetmittee recommends that the NRC page 16 of the repert, oniv where shculd seek a court order of exclusien of the attornev
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the witness has been ordered to testify and there is concrete evidence that the chosen representative of that witness is in such a position that his participation as counsel voeld seriously l
f.e]ucice the investigation.
several reasons why the NRC should not adept these Chere are recer encations: (1) The rece mendaticn seeks to hrve declared bv i.e.,
policy that which has not yet been settled by the courts, the ' circumstances under which an attorney paid for by potential l
subjects of an investigation may be disqualified when he also seeks to represent their suborcinates; (2) No policy statement is l.
necessary since the NRC has no power itself to exclude an attorney, but must seek a court order; (3) There is no valid reasen, therefore, why the UFC, in advance, should limit the circunstances under which it may seek aid of the Court, 2/
(Footnote continued from previous page.)
See United States l
E. Jacksen, 576 T.2d 1162, 1163 (5th Cir. 1978); Unite 6. States v.
Neth, 605 T.2d 229, 233-34 (6th Cir.1979).
It would therefore be anarcleur to adopt the-least ageressive enforcement policy in an area of such significant public concern and interest, and use the isolated exception as the model, rather than continuing to follow the general rule.
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The view that a policy is needed is also dubiouc hecause if sufficient circumstances do otherwise exist, the Court, which decides such matters, will disqualify the attorney; and, if the grounds do not exist, the Court will not order disqualification.
Thus, the purpose and effect of such a policy would be to deprive the Government of its day in Court to seek discualification, or, to cratuitously serve as a bootstrap for arguments by those opposing diseualification.
Both the Decartment of Justice and the NRC are familiar with the adverse affect upon the ability to ascertain the truth which
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car occur simply by the fact of multiple representetion, e.g.,
when an attorney, who has been hired and paid for by those who may have authorized, or are accountable for violations, also represents employees who may have information damagine to their superior's interests.
As previously discussed, since the attorniy represents the company and/or its management, he owes his undivided loyalty to ther and nust act in their interests at all times. Therefore, at all cines he veuld seek to minimize their exposure.
If an employee may have information damaging to his superior's interests, it would not be in their interests to have this fully disclosed to the NRC.
Thus, there is an inherent incentive to I
impair or dilute this flow of information by a number of subtle metheds which, although not illecal in themselves, can irpede the ability to discover such infermation.
At a very minimum, where the employee may have information about violations committed at the behest ef, or with the knowledge of management, said attorneys wculd not be acting in the letter's interests by enceuraging employee-witnesses te disclose the whole truth.
Further, the fact that the attorney represents management means that he will report everything that the empicyee says back to ther, as the e=ployee well knows, and simply the fact of manacemer.t's representative being present is an intimidating factor, as was acknowledge 6 by the Connittee at page 12 n.1 of their report.
Moreover, company attorneys are, in reality, usually chosen for the employee, and not independently by them.
The so-called
" offer" cf a company's attorney fer an employee is one which is very difficult to refuse, inasmuch as a rejection in favor of a perscnally selected counsel over whor manacement has no contrcl, would convey a sieral to an employee's superiors that he, as a i
prospective witness, is goine to look out solely for his own interests.
In the foreccing regard, we believe that two candid observe-
-icns by well known atterneys on the issue of cultiple represen-taticn nay be instructive.
In an article published in the Naticnal Journal of Criminal Defense, Volute II, No.
2, Fall 1976, entitled, " Time for a Change: Multiple Representation
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Should Be Stopped," the author 3/ observes, among other things, j
that multiple representation of persons in an investigation offers an opportunity, with a little ingenuity,~ of " stopping an investigation dead in its tracks."
The author goes on to state, j
" Reliance upon the right to select counsel is not a.very persuasive factor in this context.
There are more than enough good defense lawyers to i
go around.
Though multiple representation does permit some saving in fees, it does not appear that this factor is the principal motivation in the many cases in which this conduct occurs.
}
A more realistic analysis of these situations i
suggests that multiple representation is more often j
prompted by the desire to keep certain persons in
' friendly' hands.
What better way can there be for an attorney to learn what a witness or co-defendant will say or do than by representing such a person?
Indeed, by representing him, an attorney not only will know what he will say or do; he will even be j
i able to guide him.
Such a witness will remain
" friendly", because his attornev vill keen him thet way."
(emphasis added).
In an address civen by the United States Attorney for the.
District of Columbia 4/, he advised the members cf the Federal Ear Association that one cf the most serious obstacles jeopardizing and seriously undermining the Government's ability to ferret out white collar crire, organized crime and official corruption was multipin representation by one lawyer or a law firm, of persons in an investigation who have actual or potential t
ccnflicting interests.
Ccnsequently, the United States Attorney spoke approvinely of successful and increasing efforts to disquali,fy counsel.
As preuicusly noted, the law in this area with respect to j
the showing that must be made in order to have an attorney j
disqualified, is not yet settled.
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- he terr. " concrete evidence" (that the attorney's representation of the employee and participation in the interview -
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)
)
3/
Alan Cole, Escuire: Partner, Cole & Groner, Wash., D.C.;
l President-Elect of the National Association of Criminal Defense Lawyers; Chairman of_the Criminal Justice Section of the Americar Ear Association.
2/
Address of Earl J. Silbert to the Federa) Bar Association, i
Sep'.enber 15, 19'6, reprinted in'the Federal Bar Nevs, Fall Ed.
1976, at pp. 260-285.
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4 enuld seriously prejudice the investigation), suggests a recuirement of some direct evidence, such as a statement or testimony of overt efforts to cover-up the truth.
This kind of evidence is not only extremely difficult to get, even when it l
does occur, because the events usually take place in secret between cooperatina persons (willingly,or unwillingly).,~but more importantly, the same impeding results can occur as a result of more subtle methods, as discussed above.
Since any prejudice to an investigation can be serious, the public interest dictates that the Government must be free to have its day in Court to discualify attorneys whenever there are circunstances which could i
warrant disqualification, and not just when the Government can l
. prove by " concrete" evidence that an attorney's participation would seriously prejudice the investigation.
Contrary to a requirement of concrete evidence that the dual representation will substantially prejudice an investigation, i
there are discussions by Courts in various jurisdictions i
revealing that the possibility of a ecnflict of interest can warrant discualification.
The joint representation of the employer and employee was discussed in United States en rel Hart
- v. Davenport, 476 T.2d 203, 209-211 (3rd Cir. 1973):
I
. Moreover, in a case of this type, particu-larly, a conflict arises long before the trial.
That conflict is referred to in Justice Weintraub's opinion in In re Abrams, 56 N.J.
271, 266 A.2d 275 (1970).
Abrams is a 6.isciplinary proceeding against an attorney for undertaking at the behest and expense of an erployer in a gambling enterprise the representation of ar underling empicyee.
That is precisc3y what the attorney did in this cese for it is not disputed that the Batterbys, employers, retained and paid the common attorney.
In Abrams Justice Weintraub wrcte:
"But, accepting the premise that respondent had no prior cc=mitment to Pickett's organiza-tion, we nonetheless think it was improper for respondent to have accepted the organization's promise to pay his bill, for such an arrange-ment has the inherent risk of dividing an attorney's loyalty between the defendant and the gambler-employer who will pay for the services.
Obvious 1v, it is to the interest of the defendant's emolover that the defendant shall not turn him in.
That is whv the emplover is villine te cav.
As the Penrsylvania Supreme Court saic in salus (In re Salus), supre (321 Fa. 106) let A.
[70) at 71:
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'It is the Jatter [the bankers of the syndicate) who are anxious to protect the numbers for writers so that they will have no cause so dissatisfaction and no occasion to disclose the operations of the system or the identity It is of parties by whom they are engaged.'
of course to the advantage of the convicted defendant to seek leniency by aiding the State State v.
in its pursuit of his employer.
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Destasio, 49 N.J. 247, 256-258 [229 A.2d 636]
(1967), cert. denied, 389 U.S.
830, 88 S.Ct.
96, 19 L.Ed.2d 89 (1967).
It is the duty of g
the defendant's attorney to advise him of that W
is hardiv well situ '
opportunity.
An attornev ated to discharce that duty when he has acreed__
to look to the svndicate for the cavment of
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his fee.
A conflict of interest inheres in everv such
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situation.
It is no answer that Canon 6 of the Canons of Prcfessional Ethics permits the representation of conflicting interest 'by express consent of all concerned given after a full disclosure of the facts,' or that Canon 38, restated in affirmative terms, would permit the
'the acceptance of compensation fron others with knowledge and censent of his client after full disclosure.'
Neither rule is relevant when the subject matter is crine and when the oublic
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ir the disclosure of crinical activities _
interest
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micht therebv be hindered.
It is irheren.1"
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wronc to reoresent both the emnlover and the
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and
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emolo'.**e if the emolovee's intere.t nar,
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the the oublic interest will be advanced by
,emolove*'s disclosure of his enclover's criminal conduct. 56 r.J. at 275, 2'6, 266 A.2d at 2 E."
]
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(emphasis added)
There are other cases, as well, not requirin~g the Government to prove by concrete evidence thet joint representatic." would -
substantially impair an investigation, and ordering disqualification because of the conflict inherent in.the nature'-.
of the joint representation, or because of the clear potential for a conflict of interest:
In re Michican Grand Jurv 42R F. Supp. 273 (E.D. Mich. 19]6J Jnoting that the "Proceedines,
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of goint representation of subjects and non-subject fact In re Texas witnesses presents an actual, non-waivable conflict);
Gr E i Jurv, 446 F. Supp. 1132, 1136n.4 - 1140 (N.D. Tex. 1978) 4 a
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o (potential conflict alone arisina from multiple representation since the Court has responsibility may warrant disqualification, in the bud and need not to nip any potential conflict of interest sit back and wait for a probability to ripen into a certainty in
(
order to restrain conduct having such potential); In re Ohio Grand Jurv, 480 F. Supp. 162, 168-171 (N.D. Ohio 1979) (Joint representation of targets and non-targets constitutes a non-waivable conflict of interest warranting disqualification, since purported waivers are simply a device to facilitate non-targets' stonewalling grand jury investigation, and conflicts with the public's right to every man's evidence as declared by the Supreme Court); In re Lvnchburg Grand Jurv, 563 F.2d 652, 657-658 (4th Cir. 1977) (when attorney represented non-targets
- who may have had damaging information to provide against targets also represented by same attorney, conflict of interest existed since* professional ethics prevented him from taking steps to have damaging information about his client targets disclosed to prosecutor or grand jury); In re Gooman, 531 F.'2d 262, 264-268 (5th Cir. 1978) (attorney engaged in Joint representation lead to or disqualified where disclosure by one client might result in divulging damagine informatien against the other client).
5/
Accordingly, we would request and advise that this recommendation not be adopted.
Question No. 3 We believe the Committee's response to Question #3 accurately reflects the prerogatives of the parties when the interviewee requests that the interview be tape recorded.
Hewever, ve would note for future reference and guidance that enforcement agencies, including the NRC, should not tape record or agree to tape recorded interviews durine an investigation,
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in the most e::traordinary circumstances. 6/
except See also, Federal Rule of Criminel ProceE re~4 Tlc), shlftin'c ~
5/
Ihe burden to those desiring joint representation to show that no conflict would be likely to arise.. While the Rule shifting the burden is for a post indictment procedure, it may well be additional authority for future cases in the investigative stage, particularly in view of the above reported cases, and the ad=cnition in Hart v. Davencert that steps to preclude a conflict Fhould be taken at the earliest opportunity in the criminal process.
478 F.2d at 211.
6/
In such unusual circumstances, if the interviewee recuests to tape recorc the interview, the NFC should not agree unlert it s agreed in vriting that the NRC wil*. promptly receive a ccpy of the tape.
Civil er criminal charging decisiens should not, if at i
l all possible, be made in a situation where the witnesses have copies cf their verbatim statements, but the NRC does not.
l (Feetnote continued on following page).
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1
_lo_
Finally, if employees and agents of licensees are inristing it is essential for the NRC to upon tape recording interviews, contact the prosecutor who is working with th to contact a supervisor in the General 8
or, if there is none, Litigation and Legal Advice Section of the Crininal Division for consultation and guidance as to prior to the interview,as well as consideration of the option of procedures to follow, and sworn grand jury testimony which may assure a more accurate of events from hostile or potentially hostile relevant account at witnesses.
See United States v. Washincton, suora, 431 U.S.'
187-88. _7/
~~
Question No. 4 decisions as to Lastly; the Committee recognizes thatto nive grants of confidentiality t interviewees present difficult and complex questions, not readily whether or not capable of blanket, universal rules.
This issue is contrclied primarily by the stage of the investigatior at which the request as well as the circumstances of the industry itself.
it nade, the NRC should not Therefore, we agree with the Committee that have a blanket policy of cranting confidentiality to every witness who requests it.
_8/
(Footncte continued frer previous page).CcEversely,~the NRC ~~
~
~
6/need not and should not provide copies of tapes or any other irterview reports to the witness or subjects of investigation.
witness statements may If criminal or civil charges are brought, be made evailable to the witness in preparing their testimony or If ne tc the defendants throucP the legal discovery procedures.
the statements have nc litigation charges are brought, consequences and are privileced as the Gevernment's werk product,.
On the other prepared in anticipation of possible litigation.
hand, providing such statements prior to the initiatien of charges can urnecessarily afford the eppertunity for collusion
~
and tailoring of testimony.
7/
It is unlike]y that cooperative witnesses willingly
'Fevealing violations or possible violations to the-NRC would
~
- -- insist upon having tape reccrdings made of their interviews.-
Althouch a cronise of confidentiality is not equivalent to a 8/
the if a request is also madd for the latter, grant of im5 unity,seme considerations which favor affording confidentiality w be similarly taken into account by the Department of Justice in immunity also.
While enforcement deciding uhether to grant agencies do nct gratuitously initiate or suggest offers of or a neec for immunity, if a request for immunity is made by the witness or circumstances indicate that they will not cooperate the General Litigation and Legal Advice Section of without it, the criminal Division should be contacted immediately to obtain a decision.
(
_11 The types of witnesses and the stage of the investigation in i
which the issue of granting confidentiality will arise generally are:
(1)
Those who will report a violation, the existence of which is unknown to the NRC.
(2)
Those who, in the early stages of an investigation, can give leads to the NRC after a potential violation is known to the I
agency, which would assist the investigator in finding out how it occurred and/or who may have been responsible.
I (3)
Those who, after the NRC discovers the violation and the probable identity of those who may have been responsible, can
. provide further information to confirm or corroborate this.
l 1
There are circumstances under which affording confidentiality may be particularly important. 'This arises from the fact that the construction and operation of a nuclear facility does n>t occur in public view.
Consequently, only those who are involved in its construction or operation would ordinarily be privy to a deviation from requirements, as well as how and why it occurred.
Therefore, as previously mentioned, the j
employees themselves are the most likely source of information as i
to the existence of violations and the identity of those who may have been responsible for them.
However, the livelihood cf these employees is subject to the control of those who would not eppreciate having violations disclosed to tne NRC.
Therefore, there are substantial inherent factors which inhibit or discourage those who heve knowledge of offenses from reporting then, without some assurance of anonynity to avoid retaliatien.
See McCrav v.
Illinois, 386 U.S.
300, 306 (1967).
Since one of the most important functions and services which the NRC performs is to discover the existence of violations, we believe thr.t the NRC should not implement procedures which could discourage anonymous or confidential disclosure of violations from those who may vcluntarily seek to do so, especially where l
the violations have not previously been under investigation by the NRC. 9/
The third category, i.e., where the NRC has identified the violations and the persons probably responsible for them, is the i
3 9/
Indeed, we understand that a proposal has been made at the l
NFC to establish a hotline or post office box for reporting viclations, es has already been implemented by.other agencies.
We believe this proposal has considerable marit.
l l
l l
l
m 12-1 one least requiring grants of confidentiality.
- Further, l
potential witnesses who would be within the zone of occurrences underlying the violation could probably be identified by the NRC, and immunized by the Department of Justice if their testimony is necessary.
Decisions about whether to grant confidentiality are more difficult with respect to the second category, that is, where the NRC has identified a violation, but is having or may have some i
difficulty establishing how it occurred, and/or who was responsible.
A grant of confidentiality may be necessary t
depending upon the circumstances of the case.
t' With respect to circumstances where confidentiality is j
i
' appropriate,.we disagree with not only the format of the
- sugcested written agreement at pages 21-22 of the Committee report, but the language as well.
Noteworthy is the fact that the language could be intimidating and frightening, rather than i
l reassuring, inasmuch as no effort is made to list the mechanisms and steps the NRC and Justice Department would take to preserve confidentiality, but only describes circumstances under which i
their identity may be disclosed.
Further, the language as to when identity may be disclosed is so general, and incorrect in j
l i
some instances, as to convey the impression of virtually no assurance of confidentiality at all.
i There is a well developed body of law which' protects the identities of persons who confidentially provide information to the Government about possible violations of law.
The privilege i
frer 6isclosure of information which could expose their j
identities was sumrarized in McCra" v. Illinois, surra, 386 U.F.
at 305-09:
3 "A genuine privilege, on.
fundarental principle.
must be recognized for the identity of persens supplying tha ecvernment with information concerning the commission of crines.
Communications of this kind ought to receive encouragement.
They are discouraged if the informer's identity is disclosed.
Whether an informer is motivated by good j
citizenship, promise of leniency or prospect of pecuniary reward, he vill usually condi-l tion his cooperation on er assurance of l
anonymity--to protect himself and his family l
from harm, to preclude adverse social reactions and to avoid the risk of defamation or malicious j
prosecution actions against him.
The govern-ment aise has an interest in non-disclosure
)
of the identity of its informers.
Law enforcement officers often depend uper professional informers to furnish them with a flow of infornation about criminal activities.
Revelation cf the dual-role played by such
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. persons ends their usefulness to the covernment and discourages others from entering into a like relationship.
That the governnent has this privilege is well established, and its soundness cannot be cuestioned."
(Footnctes omitted.)
8 Wigmore, Evidence 5 2374 (McNaughton rev. 1961).
Perhaps with the well developed body of law surrounding this the Committee report mistakenly' creates a privilege in mind, distinction between persons who confidentially provide and an " informant"--which is the nomenclature information,
- typically used by the Government and in judicial decisions to
" informers" are According to the report, describe such. persons.
those who have essentially contracted with an agency and can receive money, a new job, or a new identity.
We belie"e that this distinction, under which the report then offers new guidelines suggesting less protection of identity to these who volunteer information out of civic responsibility or than to those who exact some economic cuid pro que, conscience, is erroneous, particularly as to the basic obligation of We are aware of no authority preserving confidentiality.
supporting such a distinction, and the report cites none.
The purpose of the privilege is to encourage citizens to report information, and we perceive no coherent reason for in this regard to some affording more preferential treatment because they recuired more of an economic inducement to provide demand more than the than others, or less to those who did not it In fact, in many if not most protection of their identities. circumstances the Government does not giv or other ecenomic inducements to persons who confidentially If there furnish infernation about possible violatiens of law.
is anv' distinction which can be made, it is not material here.
suggested term of an agreement, which would surely The first make apprehensive and discourage a person seeking to confidentially disclose information is:
"That the interviewee's identity may be communicated to other public agencies if necessar" to fulfill their statutorv responsibil'itie s. "
Since this is stated as e ceneral proposition, Ceaving a there is no end to the hands in which person to speculate thathis. identity may fall, the basic response is that ar egent and is er will be working, de not the prosecutor with whom the agent have to disclose the identity of their informant.
1
b e.
Moreover, where possible violations of law are confidentially reported, they are usually susceptible of independent verification.
Thus, other agencies, if they have need of the information, can simply be apprised of the reported e
violation rather than information which would disclose the informant's identity.
As the Court said in Wirtz v. Continental 326 T.2d 561, 563 (5th Cir.1964) :
_.7 Finance and Loan Coreanv, possible difference does it make who reported to the "What It is entirely possible that Secretary that violations occurred?
(of Labor) entire case could he proved by the use e
the' Secretary's of a single witness such as a bookkeeper or a supervisor.
it may be that ten or twelve employees may have reported
- However, In such circumstances the g
or, informed as to alleged violations.
only conceivable need for the names of the informers would be the
~ desire of the. employer to know who had informed on it."
Another proposed condition in the report, at page 21, is that the interviewee may waive confidentiality by taking action inconsistent with confidentiality, such as disclosing his or her identity, or providing information to another person that centradicts the information provided to the NRC.
Providing contradictory informaticn to another should not constitute an ipso facto waiver, since an employee, for example, for the same may be cuestioned by his employer or co-workers and, reason he scught confidentiality in the first instance, wculd not them to be aware of what he knowr and is capable of vant providing.
Interestingly enough, $f the empicyee, for example, did mirlead his employer to protect himself, that would constitute a waiver under the proposal; yet, if he truthfully replied that he talked to the NRC and what he had said, that too could constitute a waiver under the proposal.
Further, revelation of his identity may not necessarily, as the report incicates, be inconsistent
._31.i;h confidentiality.
See Hedesen v. Charles Martin :nspectore
~~
of Petroleum, Inc., 459 F.2d 303, 306 (5th Cir. 1972) (knowledge of identity of employees who gave statements to Government does not constitute a waiver of informer's privilege, since only identity and contents of statement would re"eal whether I
infernation'was given reluctantly or vcluntarily, and whether it was. favorable or unfavorable, thus revealing him as an informer).
Che third condition in the propese6 agreement is that the NEC may have to disclose his/her identity in response to an order of a hearing board or a Court.
The languege of this proposal
(
~
e conveys the impression that preservation of anonynity is something over which the Government has no control, and disclosure of identity can, and often does occur whenever there is a Court case and someone demands it.
Although a hearing board may request disclosure, we are unaware of authority vesting in a administrative agency hearing board the authority to compel I
disclosure of informant's identities, and indeed belie've they do not have such power,, E.g., United States v. White, 332 U.S.
694 (1944); Comn'r v. Brinson, 154 U.S.
447 (1894); Reisman v.
Caplin, 375 U.S.
440 (1964); United States v. Matras, 487 F.2d 1271, 1.275 (8th Cir. 1973); United States v. Harrincton, 388 F.2d 520, 523 (2d Cir.>1968).
Moreover, the circumstances in which disclosure occurs at the U.S. District Court level are, extremely rare,.and even then, under verv restrictive circumstances.
Simply because an informant has provided information concerning a crime, or for that matter was a witness'to'it, or even a participant in it, does not warrant compelled disclosure of either the information or his identity.
United States v. Alonzo, 571 F.2d 1384 (5th l
Cir.), cert. denied, 439 U.S.
847 (19 7 f,) ; United States v.
Oliver, 570 F.2d 397 (1st Cir. 1978); United States v. Morris, 568 F.2d 396 (sth Cir. 1978); Simpson v. Kriecer, 565 F.2d 390 (6th Cir.), cert, denied, 435 U.S.
946 (1978); United States v.
l Russ, 562 F.2d 643 (2d Cir.), cert. denied, 385 U.S.
923 (1966);
I Hodeson v. Inspectors, supra; Machin v.
Zuchert, 316 F.2d 336, l
339 (D.C. Cir.), cert. denied, 375 U.S.
896 (1963).
Indeed, even where an informant's information provided the basis for a search i
warrant, disclosure of his identity was not recuired when defendants sought to challenge the validity of the warrant.
Jones v. United States, 362 U.S.
257, 271-72 (1960); see also, Unitef States v. Eazzano, 677 F.2d 971, 981 (3rd Cir. 1982).
Disclosure has only been required where it is clearly essential to defend the case, and where this need outweighs the public's interest in ass,uring and promoting enforcenent of the l at.- by prctecting the identity of persons who confidentially report violations.
Roviaro v. United States, 353 U.S.
53, 59
~
(1957). 10/ Thus, disclosure will not be ordered unless: (1)
~
there is an absence of significant independent evidence i
establishing the crime; and, (2) the testimony of the informant would-be essential to the defense because it would be excuplatcry, and. represents the only likely source of such exculpatory information.
United States v.
Suarez, suora, 582 F.2d-1007 (5th Cir. 1978); see also, United States v.
Doe, 525 F.2d 878, 880 (5th Cir. 1976); United States v. Morris, 568 F.2d 396, 399-400 (5th Cir. 1978).
3 10/
"Public policy foroids disclosure of an informer except where it is essential to the defense."
United States v.
- Scher, 305 C.S.
251, 254 (1938).
United States v. Toombs, 497 F.2d 68, 92 (5th Cir. 1974).
F
' Furthermore, in the kinds of investigations which the NRC conducts, the attorneys should be able to gauge well in advance whether there is sufficient evidence of the alleged offense independent of the. informer's testimony, or whether the case would both hinge on the informer's testimony and whether this testimony would be exculpatory.
If there is no case, of course, there is no risk of disclosure since public policy would forbid it.
Furthermore, even in litigation where there is a possibility of disclosure, before deciding whether to order disclosure the Court would take the informer's information in camera, to determine whether he
. wou.ld be capable of exonerating the accused by the information he f
had.
United States v. Suarez, supra, 582 F.2d at.1011-1012; United States v.
Doe, suora, 525 F.2d at 879-880.
And, even.if the Court finds that disclosure is appropriate, if protection of identity remains essential, among other things the case can be dismissed, or, the informer by then may be willing to testify voluntarily if he learns that it is essential to the case.
Thus the possibility that an informer's identity may be disclosed is cuite remote, and in view of the obligations and efforts of the enforcement agencies and the judiciary to assure protection of their identities, disclosure has occurred only in a miniscule minority of cases.
As previously noted, however, rather than as. curing the person who confidentially provides information of the ability and efforts available to protect his identity, the proposed agreement suggests unlimited potential for
_ disclosure over uhich there is no control.
Accordingly, we recuest and advise that the ERC not implement the propcsed agreement.
We will, hewever, be glad to werk with agency representatives to develop satisfactory procedures for dealing with such persons.
In this regard, we would also call upon o-her enforcement agencies, which have had a good deal of experience in these matters, to provide their input and advice.
Sin v
STE HEN S. TROTT Assistant Attorney General Criminal Division
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su:. a-a.s e-EAND DEI.IVERED W,.N_._ ___ ~
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Eonorable Nunzio J. Palladino,
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- Chairman f,
Honorable, James K.
Asselstine,
. 60/ '
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'([S Comr. ss:.oner Eonorable Frederick M.
Berntha1,.
Cc==issioner Honorable Victor Gilinsky, Co=.~.:.s s :.on er
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Eonorable Thomas M.
- Roberts, Corr.issioner
~
Nuclear, Regulatory Cc==ission 1717 E Street, N.W.
Room 1149 Washington, D.C.
20555
Dear Co==issioners:
I have the privilege of presenting to you the Report of the' Advisory Co==ittee,for Review of Investi--
cation Policy on Rights of Licensee Employees ~Jnder In;;estigation._
As reflected in the Introduction to the Report, in response to the charter and specific cuestions the Corr.ission requested us to address, the Co==ittee con-sidered a broad range of t.estimony anc document's f~ rom interested persons and entities.
All persons who wished' to "be heard were given an opportunity to do so in person and/or in writing.
9/M..To OGC for Appropriate Action..Cpys to: Cho,Cr.-s,0I,01A,EDO SECY 0PE...E3-2255
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I 4-Honorable.Nunzio J. Palladino
~
Bonorable James K. Asselstine
~
Honorable Frederick M. Bernthal C
Honorable Victor Gilinsky Honorable T,homas7.. Roberts Page two September 13, 1983 c
1 All members of the Co==ittee have appreciated the
. opportunity to serve on this com=ittee.
We hope that b
'this report will benefit the Comciss' ion.
We*are mo'st grateful for the invaluable assistance given us by
~
Richard Levi, Esq. of the General Counsel's office.
Mr. Levi made hi=self available at all times, arranged for the two days of public hearings we, held, cont' acted wit-nesses who wished to be heard, assured compliance with t.he procedures of the Federal Adviscry Corr.ittee Act, and provided us with most helpful background ma-terial on the, issues se were asked to address.
We are looking forward to our meeting with you.on Septerber 27,, 19E3.
Sincere.ly,
- l./h.
Earl J.
Silber:
EJS:cs
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r, cc:
James A. Fit: gerald, Esq.
~~
Oscar F..
Ruebhausen,' Esc..
Joseph M. Scott, Esq.
Professor Ra.ph S. Sprit:er O
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s d-4 REPORT._OF TEE-ADVISORY COMMITTEE FOR REVIEW OF INVESTIGATION POLICY ON RIGHTS OF LICENSEE EMPLOYEES UNDER INVESTIGATION
~
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Subaitted to the Nuclear R'egulatory Commission Septamhar 13, 19,83 e
~
Earl J. Silbert, Esq.
1 Chairperson i
James A. Fitzgerald, Esq.
Oscar M. Ruebhausen, Esq.
Joseph B. Scott, Esq.,
Professor Ralph S.
Spritzer, Esq.
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.c-Report of The Advisory Committee
. For Review of Investigation Policy on. R.ights of Licensee Employees Under Investication Introduction 1
The Advisory 'Co==ittee For Review of Investigation Policy on Rights of Licensee E=pl.oyees Under Investigation (hereinaf ter
" Advisory Co==ittee" ), was created by, the Nuclear Regulatory Co--'ssion (hereinafter "NRC" or the "Co==ission").
Its charter, attached as Exhibit 1, beca=a effective on February.
25, 1983. Subseq'uen'tly, by'.5etter dated April 11, 1983, attached.
as Exhibit 2, the Cc==ission delineated'"enctly what questions
- the Addisory Co=ittee should address " -
~
In addressing 'these questions, the Advisory'.Co==ittee has sought and considered a
wide variety of docu=entary and testi=enial input.
It has held two full days of bearings open
-to the public.
Notice of the =eetings,. pursuant to the Federf1 Ad. v.i s er.v. Co==ittee,Act., was published in the' Federal Register.
- -. All witnesses who wished to be heard had..an opportunity to present their views at the hearings.
Others =ade sub=issions L'.
in' writine..
In addition, the views of so=e individuals and organi:ations were actively solicited by the Advisory Co==ittee.
Thus the Co==ittee heard fro = federal investigators and fro =
representatives cf industry, unions, and the "public interest. "
Included a.=eng th'e'se were the Director cf the Co==ission's Offices of Investigations and his chief assistants,.a.nu=ber e
O -
Q of attorneys representing licensees or vendors who appeared individually and/or in behal,f of the Ato=ic Industrial Foru=,
l investigators of other federal agencies, representatives of the International Brotherhood of Electrical Workers and their counsel, a representative of.the Professional Reactor Operators Society, and the Legal Director of the Government Accountability Project (GAP) of the Institute for Policy Studies.
Among the written materials reviewed by the Committa:..e the following-letter dated August 13,
- 1982, from Gerald Charnoff, Esq. and J. Patrick Eickey,'Esq. to the Chairman of i
the NRC; Insoection' and~Enforcementi Conflict or Cocoeration, an address by Messrs. Charnoff and Eickey to the 1982 Annual
~
" Conference of the Atomic Industrial For' m; letters from Richard.'
u Littel, Esq. dated kay 25,19E3 and June 3,1983; a letter from James B. Burns, Esq. dated June 3,1983 ; a proposed " Advice to l
. Interviewees" presented by Gerald Charnof f, Esq. by letter dated June
.3, 1983; a
statement of Paur
- Shoof, International Rep esentative of the international Brotherhood of Electrical Workers; memorandum dated March 4,
- 19E3, to Ben B.
- Eayes, Director of the NRC's, Of fice of Investigations,.f rem the Secretazy of the NRC, pertaining to policies of the Office cf
~
Investigations; and.a letter dated July 16, 19E2 f. rom the NRC Chairman to the then Acting Director of the Office of l
Investigations, James A. Fit gerald (a me=ber of the Advisory Committe'e') delegating certain authority, l
l l
6
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Despite the
'large volume of this testimonial and documentary informaAion and pertinent legal materials considered by the Advisory Committee, the Advisory Committee has concluded that a comparatively brief report to the NRC which i
focuses solely o'n _the specifi'c questions the Commission wished addressed would be most, cons is. tent wi.th the mandate of the Com=ittee.
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o Question l'.
'Shonl'd the ERC as a matter of policy apprise all interviewees prior to an interview that they have a right to have a attorney present?
Initially, it is i=portant to note that e=ployees of licensees have no "right" to have counsel present during
~
interviews conduct d by NRC-inv'estigators when the employee has not.been subpoened.
The Co==ittee under, stands, !)owaver, that tbe Co= mission permits counsel to be present at such interviews upon fequest.
The question before the to==ittee is whether, as a matter of policy, notice of this opportunity to be acco=panied by counsel should routinely be given to a prospective interviewee before an interview is co'nducted.
l The Co==ittee, has concluded that"the NRC should not adopt l
t such a policy.
The Co==ittee believes that there are no persuasive policy reasons f or adopting such a notice require =ent l
and that there are i=portant policy considerations which 'suppert rejection of this, proposal.
l l
The primary argu=ents presented to the Co==ittee in suppert,
~
c'f routinely prdvid~ing notice o'f an opportunity to be accompanie?
}
by counsel were ' that not providing such notice would (1) disadvantage those wne ere unsophisticated and ignorant 6f their rights ~and 'therefore =ast in need of this advice, and (2) deter e=ployees f ro: willingly assisting in the investigative phocess.
The Co==ittee believes these arguments must be considered in i
two separate situations: (1) in the usual interview in which I
the purpose of the I investigation is to discover and asse=ble infor=ation to deter =ine whether safety regulations er D
+
a l
l procedures h'a.ve been violated and, if so, by whom; and (2) in unusuah case in which the investigation changes fro =
the information-gatherrnt to a focused effort to establish the criminal liability of a particular witness.
Most of th,e., interviews, conducted by NRC's Office of l
I5vestigations (OI) ' involve persons who are not.themselves suspected of wrongdoing, malfeasance 'or' the lik'e.~ Th~ey are being interviewed solely for the information they may have and OI investigators do not have a reasoned basis fbr believing that their responses will expose them to potential criminal liability. Under these circumstances, the need for advice about counsel appears minimal.
Moreover, rather than enhancing the willingness of e=ployees to, assist in the investigation, the.
Co=mittee believes that there is a risk that adopting a mandatory notice policy could impede the investigative process.
Regardless of how it is for=ulated, such notice may convey to interviewees a f a'se impression of personal vulnerabilit'y ~and"
~
. ' - - ' thereby cause them to~ resist providing assistance that migh t-otherwise be forthcoming.
In addition, providing such notied
.could unnecessarily formali:e the investigator / interviewee r'esulting" adverse affect on the flow of relationship with a infor ation to NRC.
~
I=portantly, the Co==ittee i.s unaware cf any other federal agency with such a policy or practice, despite suggestions tc the con;rary by several of the Co :ittee's witnesses.
If the policy of giving interviewees this notice encouragef cooperatien D
a of wi.tnesses,' one would expect that other agencies would have adopted such a polic y.
That they have not indicates that they are at least doubtfulYhat prokiding the notice would be helpful.
The importance of NRC's mission and the fact that the public interest is dirtetly implicated in most NRC investigations suggest that the.NRC should not adopt a policy, apparently n.nid:e, that might impede. its ' investigations.
We therefore reco==end against a policy for notice in the normal interview situation.
The Com:ittee has also considered whether notice with respect to counsel Tshould,ne c.iven.when the investic.ator has.
reasonable grounds to believe that the' interviewee has engaged
~
.- in wrorigdoing, calfeasance or some other dereliction of duty -
for which the indivi' dual could be personall,y, but not criminally, accountable.
- As a practical =.atter, it would frequently be very difficult NRC.investi, gator to know whethe.: or not the individi:a[
~
for at being f.:estioned could_ be held civilly accountable for his or her conduct.
The Committee believes that malfeasance and dereliction of duty are so imprecise and that potentiai, civil
~ liabili;y so varied that a notice rule linked to these concepts'
~
would be unworkable.
Even in those situations in which the i
risk of a civil sanction is clear, i.e.,
loss of an operator's l
- license, the committee believes that o!'s need to obtain 1
l inf ormat-ion that-concerns its safety-related functions 9
_7_
outweighs ahy policy reasons for the OI investigator to give notice of the opportunity ter consult with counsel.
There re=ains the situation where the important information-gathering function of OI becomes secondary to the effort to establish crimina'l' liability of an interviewee whoc
~ i DI already has reasonable grounds to belleve has ce==itted a crime.
In this narrow instance, the'Com=ittee recommends that notibns of fairness and decency which lie at the. heart of all govern = ental conduct warrant the "targ,et" be'ing advised of his opportunity to ctonsult with counsel.
~
.a Although existing law does not. require this notice in
~
noncustodial situations, the Committee. doe.s not intend this ner
~
consider it as a su.bstantive departure f rom existing practice.'
Fcr example, Special Agents of the Internal Revenue Service by internal rules routinely advise taxpayers under investigation cf the so-called Miranda rights whether or net the perse'n. i,s -
in custody and even at a preliminary phase of their investigation-when the basis for the investigation is mere suspicion.
Other investigative agents, from the testimony before the Co==ittee, have given advice of Mi~randa rights in the past or presently as
~
a matter of individual practice.
That they
_.e criminal investigators is relevant but not dispositive. OI investigators have everlapping responsibilities.
They may, for instance, be censide ed cricina,1 investigaters under 1E U.S.C.
5 1510 fer pu poses of persons obstructing a
criminal investigatien.
e e
~
Info 5mation they obtain may be referred to the Department of Justice and' form.the_ basis f_or a criminal prosecution.
The Co=itt ee recognizes that the primary goal of 0; investigators is to get to the bottom of allegations of violations of NRC requirements'which may have a potential for causing great haim to the,public.
Ther,e is, ac.coc!ingly, a strong public interest in the NRC's obtaining necessary infor&ation from all possible sources.
The notice,requ' ire =ent recommended by the Committee should not unduly interfere with this primary OI function since it is applicable only when the O! already has reasonable g^ rounds to believe that the interviewee has co=itted a griminal offense and its focus shifts to obtaining fu5ther evidence of that person 's criminal liabilityr In this instance, because the witness may not realize he is a target for criminal referral and potential prosecuti6n, the limitef notice should be given.
The Co=ittee believes that,'e v'e n in this exceptional.
si tua ti*en, the' investigator should retain the discretion te.
determine whether to convey the notice orally or in writing, as well as its precise formulation.
While the Committee is
(
c.indful tha't this may result in some lack of uniformity, that is t
a consequence cf preserving the flexibility that t-he office of Investigations, in the Committee's view, must have.
finally, during the course of the Co=ittee's hearings
(
several witnesses suggested that cther affected
- parties, in e'.u ding the licensee and the collActive bitrgaining
1 9-i representative, should
- routinely be given notice of all interviews so that they could be present or of fer to be present, either as participants or observers.
The Cor. cia. tee is unaware of any precedent f.or such a policy and disfavors its adoptien g
by the NRC.
In the Cc=ittees view, the routine presence of such additional persons at these interviews would so aher their investigative character as to deprive the NRC of the value of endorcement.and oversight the investigative interview as an toc 1.
.r o
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eme 8
m e
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O 4
h 9
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e 6 0
9
Separate Stat'eme.nt' of Connaittee Member Professor Ralph S.
Spritzer:
i In addressing QEstion 1, the Com=ittee recommends that a 1
prospective interviewee who is a target of the investigation in the sense that there is reason to believe that he has com=itted I
a crime be advised of his opportunity to consult with counsel "wbere the important information-gathering function of o!
becomes secondary to the effort to establish criminal lir.bility"
~'
of the interviewee.
I agree that considerations of fairness call fer advice in this situation.
I Would not restrict the giving of advice, however,'; to the case where the investigation of cri=inal liability is the pr mary purpose of the j
~ investigation." In my view, it is desirable that an effective,-
4 warning (one that covers the opportunity to seek and be represented by counsel, and the Fifth Amendment privilege! be 4
given whenever here is reasonable likelihood that,the interviewee's responses to the investigator may be self-inc.rimi.natory,.whe.ther or not prosecution, at that stage, is the investigator's primary concern.
In short, I believe that 1
~
l it is enlightened public pelley te see to it that the' interviewee
.or witness. threatened with the danger of self-incrimination is aware of his prerogatives.
The sophisticated witness has that l
awareness.
The witness who is uninformed to begin with should stand on equal footing.
f i
i I
--,---n-..,---
Question 2.
May, and, if so, should the Commission limit an inte.rviewee's choice of counsel by excluding from the interview any attorney who also represents the entity being invest'igated?
- ~
, j
~
j In responding' to this question, we note at the ~ outset that interviews conducted by the office of Investigations or by the Office of Inspection and F.nforcement have almort invariably been conducted without the aid of legal process.
Doubtless this will continue to be the usual situation, although there
=ay be occasional instance,s in which the Co==ission will resort.
totheissuanceofcompulsoryprocess.l Where legal process has. net been issued, the prospective -
interviewee may always decline "to appear or to cooperate. Also, of course, he or she may decline to participate unless permitted to appear with counsel of his or her choice.'
It follows that
~
l an investigator has one of two options if.an interviewee net cnder subpoena insist.s that he or she be represented by a
- particular attorney: the investigator may permit the attorney to be present or forego the conduct of the. interview. 1/,
9
_1/
The investigator's decision on whether to-forego the interview probably will be made by balancing the need for the interview against the potential prejudice to the investigation of having that particular attorney present at the interview.
In this connection we note the apparently wide-spread belief ef invertigators that the presence of an attorney representing both the entity being investigated and the witness being interviewed may, in some circumstances, hart the investi.gation by inhibiting the freedo: with which e=p'cyees corcu.icate te n.:- investigaters.
This inhibition sta=s, investigators and ethers believe, frc the concern that whatever the e=ployee
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This right of an interviewee to decline to cooperate if unacce=panied by, counsel of, his or her choice er, for that matter, by another person such as a union representative, includes the right to be acco=panied by counsel for.the'iicensee or other co=pany coiinsel. The Office of Investigations obviously
~
has no authority to prohibit an interviewee. from being represented by such counsel or from being acco=panied by a union representative, fellow employee or friend.
Moreover, prior to (cont.)
states to investigators will be reported to the company, even if harmful to the employedor the coi::pany. The representatives-of the industry who appeared before the Advisory Co==ittee disputed this, stressing that having available company counsel r.ay, to the contrafy, provide.. reassurance.to the witness, help.
ease whatever anxiety he or she may have,.and thereby enhance-the freedom of ce==unication.-
Another peint raised by investigators and other witnesses was the concern that if the NRC allows co=pany counsel to be present at interviews of their a=ployees, the latter will not be able to refuse the offer of company counsel to be present without adversely affecting their e= ploy =ent status with ~~the"
~
company.
The response of the industry representatives to this
~
is that experience has'shown that -eit:ployees, when offered the -
assistance of company counsel, often do in fact reject the offer.
The e=pirical evidence presented to the Advisory" committee on these matters was minimal.
Although the Co==ittee believes that the responses of the industry representatiyes may accurately reflect wha,t occurs in some cases, ce==en sense dictates that at least in ofher
- cases, e ::ployees will be reluctant to refuse the offer to be represented by ce=pany counsel and to co==unicate freely in the presence of co=pany counsel.
One final point is the concern of the investigators that co=pany counsel, when reporting back to the company what transpired in the interview, will reveal the direction and scope cf the,J nvestigat. ion and thereby potentially prejudice the investigation by allowing the ce=pany te a.ff ect the availability or content of testimony or documents subse:;uently sought by the investigators te the co=pany's benefit.
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4
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or during an investigation, a
- licensee, contractef, o
subcontractor, vendor, or union bas the right to advise its e=ployees or union' or nonunion me=bers of their right to have i
present counsel, including counsel for the co=pany or a union l'
d representative.'
his proce'du e has been followed in prior NRC investigations and no basis exists of which this-Co==ittee is
{
2/
aware to preclude it from being done in the future.
Although in informal interviews the NRC.cannot prohibit interviewee-selected co=pany counsel, union' representative or specific friend. fro: attending the interview, nothing would prevent the investigator f rom discussing with the co=pany, its counsel, the union, or special friend the reasons why they, should not attend,an interview o f,a service e=ployee in a particular c a s e'.
Similarly, if such
- counsel, union representative or friend appears at an in.terview, there is nothing to prevent the Of fice of Investigations from following-
~
a procedure analogous to that whleb an Internal Revenue Service-officer may pursue at an interview cf a summoned third party 2/
The law, of coufse, makes it unlawful to obstruct an investi.gation by agents authorized to conduct investigations of cri=inal conduct.
16 U.S.C. 5 1510.
Any cor..unicatien,
~
cral or written, that appeared to violate this 1 did, we assume, be ref erred te the Department cf Justice for,aw wo agpropriate investigation.
It was suggested that guidelines be adopted setting ferth what advice could p;cperly be co==unicated c
e=ployees and others without exposure to the charge cf obstruction of justice.
The Advisory Cor..ittee considers this i=p ra c t'i' al.
What 'is controlling in such matters is the intent c
with which advice is given, an intent that will be predicated on an assess =ent cf surrounding circumstances.
N o s i=g *. e formulation is pessible.
I
- m J
s witness.
See Internal Revenue Service Manual i 4022.42, MT 4
~
t' 4000-181.
The IRS af ficer may first explore the potential conflict of interest with the attorney, and if the matter is.
not resolved, he may ask the witness such questions as whether
~'
the witness wishes an attorney to be present, who hired the l
at_torney, who is paying for the attern,ey,, whether tWe witness f
u.nderstands that the attorney represents others, and whether l
potential, conflict of the Vitness realizes that there is a interest.
As'the IRS Manual recognizes, the witness ordinarily is entitled to have counsel of his choice present.
Only under "extre=e circumstances"' will the IRS atta=pt to seek disqualification pf counsel in court.
Although these IRS procedures apply to witnesses formally.sumened "for an interview, the Advisory Co==ittee belleves that these procedures can be adapted to the voluntary setting of field interviews by 4
1(RC investigators.
J.'
The' remaining question is whether the Co==ission, in a, situation where! it un'dertakes' to compel testimony by issuane,
.of a subpoena, may appropriately issue an order, or seek a court order, limiting'the wi,tness' choice of counsel.
Section'6(a) of the "Ad=Inistrative ? ocedure Act broadly provides, " A person l
ce=pelled to appear in person before an agency or representative 4
thereof is entitled to be accompanied, represented and advised l
by couns el.... ".5 U. S. C. S 5 5 5 ( a ).
The " plain and necessary i
l meaning of this provision" is that the person su==oned is entitled to " counsel of this) choice,"
Ea ck er v. Co==is siener,
e.
e 4
- -... - _ =-
i 1
I i
l
- i O
I 1;
l 275'T.2d 141, 144' (5th Cir. 1960).
Accordingly, the courts 1
have been ' restrict'ive of occasional efforts by administrative i
i agencies to exclude, on conflict-of-interest grounds, counsel chosen by a witness.
The issue posed by the Commission's I
.5 Question 2 has Eu~dh,in commeri with the issue presented to the. 1
)
, court of appeals in S.E.C.
v.
Csapo, 533 T. 2d, 7 _( D. Q. Cir.
1976).
.That case involved the. application of an S.E.C.
sequestration rule providing that abse5t permis.,sion no counsel for a witness "shall be permitted to be present during the examination of any other witness ca5. led in such proceeding.'"
2 The court stated (p. IlV:
We are of course mindful of the
~
historical antecedents.
of the j
sequestration rule and of the important
~
purposes which it is designed to serve.
i See Torra; v.
Stradlev, 103 T.
Supp. 737 (N.D. Ga. 1951), Un ted States v.
- Smith, 87 T. Supp. 29 3 (D. Conn.1949 ).
We do not
~
i question its util.ity in preserving the integrity of an investigation and recognize
....~
~
)
its practical necessity _under certain
~
j circumstances.
But we are not for that reason at ' liberty to ignore the clear
~
cong essional mandate
[Section 6(a),
~
Administrative Procedure Act) referred to above.
Thus, before the SEC may exclude an attorney f rom its proceedings, it must
~
come forthn as it has not done here, with i
" concrete evidence"'that his presence would l
- obstruct and impede its investigation.
+
An earlier Ninth Circuit case involving the same sequestration rule likewise upheld its
- general propriety," but i
held 9.at it must. be accommodated to the demands imposed by the
.r Administrative Procedure Act.
S.I.C. v. Eleashi, 35.9 T.2d 550 i
( 9 th Cir.19 6 6 ).
The court concluded that Eigashi, a cerporate
16 -
i be deprived of the services of corporate dirdctor, might not counsel bedause that would d,eny him the services of the attorney l
We are satified that a who might be of' greatest help to him.
rule excluding "any attorney who also represents the blanket entity being inve's'tigated".would not be sustained by the courts.
~
Ar. order of exclusion addressed to a particular situation might l
be upheld, in the words of the Csapo opinion, if there was
" concrete evidence" that the attorneyts presence would obstruct 1
the proceedihg.
We are accordingly of the view that it would be appropriate l
a witness l
to enter or seek an ord'e.5 of exclus' ion only where (a) has been ordered to testify, and (b) there is concrete evidence than the chosen representative of that witness is in such.a position that his participation as counsel would seriously prejudice the investigation.
/
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Question 3.
Should the ERC a. low interviewees to tape record the interview and/or should the ERC record the interview at the l
request of an interviewee?
1 C
1 l
i In responding, we,bave, limited.our consid.eration to j
I l-i$2terviews that are voluntary or conducted without the aid of legal process.
These represent the large,maj,ority of NRC 1
1 investigatory interviews.
Being voluntary, we believe the interviews accordingly should be conducted in a manner agreeable I
to the parties.
i If an interv(evee insists upon tape-recording the interviev l
cr having it tape recorded by the NRO, we would expecf the NRO to acco=modate this wish or terminate t'he interview.
As subsidiary questions, it is asked:
i.'
(a) whether the NRC should advise the interviewee, pric:
to the interview, of the.right to tape record it; l
. and, if so, what form the advice should take?
Tape recordisg "is a privilege or an optien available te I
I thefinterviewer and interviewee.
We do not think it rises te-the dignity cf a right in the pontext of a volunta.ry in~ erview.
Simila": privileges extend to the time and place of an interviev and :: whether third parties are present or whether a written su=.a.ry is prepared and signed by the interviewee.
If the circumstances of the interview are agrees.ble te the participants, we do not think any advice need be given as t l
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i 18 -
4 the.other optional ways in which the interview might be conducted.
I' (b) under what circumstances should the' interviewee be allowed to keep the tape or a copy of the tape?
l 1
If tha. interviewee has arranged for the tape recording, i
it seems "to us the dominion over the tape belongs to the I
in:erviewee, not to the NRC.
It is for the interviewee to
~
j
[decidewhoistohavecustodyofthetapeand,whethercopies should,be made.
If on the other hand 'the'NRC
.akes the tape recording, the situation is reversed and the decisions are up to the NKO tb make.fNormally, we would think the NRC should make 1
i f
a copy available to the interviewee, with such charge for its 1
- costs,as may be deemed approprlate.
l (c) whether, if "the interviewee records the' interview, and the NRC does not, the NRO r.ay insist on having a copy te the tace?
We do not 'think the NRC is in any position to insist en receiving "a copy of the tape._
It may request a' copy.
The j
- intervieweemajofferacopy.
But if the NRC really wants a
~
i copy, it has the option of recording the interview for itself.
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One5 tion 4.
Should the ERC give all interviewees express grants
~
of confidentiality?
~
The Advisory Co= ittee believes that th.e term
" confidentiality"._ must be precisely defined for meaningful 1.
discussion and c~ overage in NRC's investigatory policies.
As
~
. understood by the Committee, it is 'the withholding from.
dissemination to the public (including licensees, vendors, or other e=ployer organization) of the name and'~other personal identifiers of certain individuals who pr ide information to the Co==ission, subject to'.some limitatiens as discussed below.
It is to be distinguished f rom f ormal " informer designation a
whereby so=e agencies essentially. contract with carefully screened individuals. not to-divulge their identities under almost any circumstances in return for information. This latter cate; cry =ay include such measures as providing the individual with money, job add even a new identity _if he/she is' compro-isedf."
-.We believe that the considerations against grantinc confidentiality to all interviewees outweigh those in favor c'f such a universal grant.
The considerations weighing;against such.a blanket approach are a's f ollows:
Effective confidentiality agree:nents are extre=ely
~
difficult to icplement.
Not only cust the name and obvious p.ersonal identifiers, such as position er job l
title, be protected, but cther info. atien as well.
Tnis could include relatier. ships to, other individuals, presence at events or meetings, and ether e'.
material from which the interviewee's identity might 1
be inferred.
While, dif ficult, this is achievable on a selective basis but as a practical matter not feasible for wholesale use.
We perceive that inadveit'ent breach'.of the confidentiality promise is very likely if there are widespread confidentiality grants.
The publicity resulting f rom breach of these agreements, however unintentional the breaches may have been, can seriously h' arm.the investigative progra= by deterring others' fro: coming forward who hadi=pohtant Ndormation but who will disclose it-only on a promise of confidentiality.
Reports of ihvestigations which contain.'
confide.ntiality grants are more difficult to use.
The m:re reports are expurgated to preserve confidentiality, the more cryptic they become.
' Confidentiality requires thit the commission staff endeavor.to-keep some information from adjudicatory boards and parties or, alternatively, seek protective orders.
It pay also impede the staff's enforcemen'
~
purposes. Finally, it could restrict the use of these
~
reports by congressional oversight com=,ittees'.
Confidentiality grants can make it more dif ficult to conduct the investigation. For example, when a persen has been given confidentiality, the investigators are not free te use his name and other information which
say idedtify him as the source in eliciting information from other interviewees.
In some in2ances, confidentiality conceivably may serve to protect wrongdoers.
The nr.ajor reason for considering a universal express grant i
i of confidentiality 'is the possibility that it might increase the flow of information tio the NRC.
However, we are aware of no empirical evidence that this would o,ccur.
Indeed, as noted
. above, the widespread e=ployment of such grants'c'otild decrease the flow of unsolicited information through inadvertent breaches of confidentiali~tyl In afdition, we believe an experienced,
investigator will normally not need ce,'nfidentiality to obtain infor=a' tion from the great majority of witnesses.
What limi'tations, if* any, should be placed on grants a.
of confidentiality bv the NRO?
One Co::ittee believes that grants o f, confidentiality should be in writi:}g, signed by an NRC investigator,.and contain..
7 --.an acknowledge =ent by the interviewee that he understands the.
-.agreaseht. 'Furthef, we believe it prudent to include in the.
agree =ent the folieving limitations:
That the interviewee '.s identity may be cori=un~icated, t'e other pubb.ie agencies if necessary te fulfill their
~
statut ry' resp:nsibilities; That the interviewee may waive confidentiality by J
taking action inconsistent with confidentiality such as disclosing his/her identity or providing 1
e
22 -
information to another person that contradicts the information provided to the NR0;
~
That the confidentiality is not absolute and the NRO may have to disclose his/her identity in resp'onse to anordehofahearin'gboardoracourt.
.The limitations set, out above are not all-inclusive.
Because the NRC $_s free to grant or withhold confidentiality as it see's fit, it may impose any conditions or limitations on the grant which it considers appropriate 1.5 a particular case.
We deem it most important that the agreement candidly
. reflect the limitations o$ the gran't of confidentiality.
b.
Should there be different policies for different types of interviewees, e.c., those.who come f orward on their.
- own, and those
.whom the
.NRC has to seek out?
There are various types of interviewees for who different co.nfidentiality could be
- forged, e.e.,
policies on
__. supervisory /non-superv,isory, licensee /non-licensee employees, vehntary/ compelled, " executive /non-executive, those who come, forward on their own/those approached by the NRC.
Because the subject matter of investigations varies widely, we do not believe that a.iy rigid policy dif ferentiations should be adopted for
~
these various groups.
Rather, we believe that the sta'tus of various types of interviewees may, on a case-by case basis, be one of several relevant factors which should be considered in a.
determining whether to grant confidentiality to a particular
23 -
interviewee, the principal factor being the investigation's need for information.
~
We are aware,.however, that Part 21 of the Commission's regulations can be read as providing express confident.iality to certain indin acals 'who., voluntarily come forward with j
information, as opposed to those who are sought outi 10 CFR l
2112.
Nonetheless, for the reasons. set forth above, we do not believe drawing such a distinction outside of Part 21 is
~
warranted.
Should the NRO grant confidentiality in the absence' c.
ef a request f or. confidentiality?
The Committee does not believe that the NRC should normally
, grant confidentialfty in' the absence of. a request.
However, if.
it is apparent tot as investigator, that there. is unusual apprehension on the part of the interviewee er a withholding cf infer ation, he should explore this and use sound judgment as te raising the subject of confidentiality en hi s ' own "
~
~
2 n: ti ative '.
d.
Should the NRC advise witnesses of the availability" of confidentiality, and, if so, what f or should this notification take?
The Co==ittee believes that the NRC should nor= ally advise-individual witnesses of the availability of confidentiality only when, in the judg=ent of the investigator, the grant of 4
I cenfidentiality may be appropriate and the advice of its availabiJity may persuade an otherwise reluctant interviewee te provide infer =ation.
The for= cf notice,should be left to
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~
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24 -
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I e
the discre t} eon of the investigator.
If confidentiality is granted, however,',it % ould be in writing as discussed above.
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Respectf,ul.ly sub=itte.d,
[
Earl J. silbert, Esq.
Chairperson gd 3
n.u Fit:chrald, Es%.
gaiesA.
~
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vp &s
~~
~
Oscar F.. Ruebhhsen, Esq
,..S.
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Josph.B. f co'::, Esq.
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Ralph.S. Sprit:er, Ese:
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l September 13, 1952
S*
m.s,
_. a.a.c Dasc4 Approxi=atelv three to five znonths fre= date of filing.
~.
10.
Date of Til'ing 3chr. C. Eo.v1e Mvisory Cer.ittee
' Manage. ment Officer 4
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