ML20135C029
| ML20135C029 | |
| Person / Time | |
|---|---|
| Site: | Harris  |
| Issue date: | 09/09/1985 |
| From: | Bright G, Carpenter J, Kelley J Atomic Safety and Licensing Board Panel |
| To: | |
| Shared Package | |
| ML20135C031 | List: |
| References | |
| CON-#385-464 82-472-03-OL, 82-472-3-OL, OL, NUDOCS 8509110264 | |
| Download: ML20135C029 (13) | |
Text
' '. b UNITED STATES OF AMERICA
- ec NUCLEAR REGULATORY COMMISSION US N3 pp _p ATOMIC SAFETY AND LICENSING BOARD 9
Before Administrative Judges:
James L. Kelley, Chainnan Dr. James H. Carpenter Glenn 0. Bright g
In the Matter of Docket No. 50-400-OL
)
CAROLINA POWER & LIGHT COMPANY
)
and
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NORTH CAROLINA EASTERN MUNICIPAL (ASLBP No. 82-472-03OL)
POWER AGENCY (Shearon Harris Nuclear Plant)
September 9, 1985
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MEMORANDUM AND ORDER (Denying Freedom of Information Act Request for Confidential Documents) 1.
Background.
In connection with a discovery dispute in this case, the Board directed the Applicants to supply it with copies of certain assertedly confidential documents on an in camera basis to enable the n
Board to confirm the' correctness of its earlier tentative discovery rulings concerning those documents. The documents are described in affidavits from the Applicants, as follows:
a.
The Review Panel Report.
In August 1983, CP&L established a QA/QC-Construction Inspector Review Panel (" Review Panel"). The purpose [of] the Review Panel was to determine if there were QA/QC or Construction Inspector concerns related to the quality of construction at the Harris site, to ensure any concerns were identified and evaluated by the appropriate corporate department, to convey the results and recommendations to the 8509110264 050909 h
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inspectors and CP&L management, and to monitor implementation of recommendations until closed-out to Panel satisfaction..
Interviews were scheduled with all QA/QC and Construction 4
Inspectors at the Shearon Harris site to determine if the inspectors had technical concerns related to the quality of construction and future operational safety of the Harris plant.
Interviews were actually conducted with 298 of the 367 inspectors.
Review Panel members assured each inspector that the information would be held confidential.
Sixty-nine inspectors either signed waivers indicating that they had no technical concerns or simply elected not to attend the scheduled interview. The Review Panel solicited and obtained written responses to the concerns identified by the inspectors from the appropriate Harris organizations and conducted a review to ensure adequate timely resolution of all such cancerns.
The Review Panel Report summarizes the results of the investigation, describss each of the inspector concerns and the resolution of those concerns, and evaluates for management the implications of the information obtained during the Review Panel's efforts (emphasis supplied).
Elleman Affidavit, pp.
2-3.
b.
Quality Check Program -- Particular Documents.
The documents in question were generated during a Quality Check Program exit interview with an employee, and subsequently in investigating an allegation made by that employee. The information provided by the employee was provided in confidence with assurances that his identity and the information would not be disclosed.
Certain of the documents identify the employee by name.
... The Quality Check Program was established to provide an additional opportunity for Harris site personnel to express concerns to management and to receive feedback on their concerns. As part of the Quality Check Program, each employee working in a safety area who leaves employment at the site (whether by resignation, termination or reassignment) is interviewed by the Quality Check group in order to identify potential safety concerns. Any concern identified during an exit interview (or during random interviews or through the initiation of an employee by telephone call to the Quality C eck group personnel or by filling-out a Quality Check Form) e..vestigated by a group of QA specialists and engineers and "her
(,
the results of the investigation are reported back to the employee. Where appropriate, corrective action is taken. I review each report of an investigation of any concern raised through the Quality Check Program.
Reports of investigations by the Quality Check group are strictly maintained confidential by the Manager-Quality Check.
A copy of the reports may be provided to the Vice President, Harris Nuclear Project. Certain information in the reports may be communicated to managers or supervisors as necessary to take corrective actions. However, the reports themselves are closely held by the Quality Check group to maintain the confidentiality of the source of the information.
Disclosure of an individual's name and circumstances of his allegations could cause him embarrassment or adversely affect his future employment (emphasis supplied). Banks Affidavit.
One copy of each of these documents was duly submitted to the Board, along with an argument in support of their in camera treatment.
Pursuant to leave of the Board, Counsel for Mr. Eddleman, Mr. Robert Guild, filed his opposition to in camera treatmc.1t of the Applicants' submission, pressed his claim for discovery, and also requested production of the documents pursuant to the Freedom of Information Act (FOIA). Since the F0IA request injected a new issue, we granted the Applicants leave to reply on that issue. Thereafter, we granted Mr.
Guild further leave to respond to the Applicants' reply.
At t' at juncture, we reached the tentative conclusion that "the n
pivotal question before us is whether the documents should be treated as exempt from disclosure under F0IA exemption 4" as " confidential" commercial information. Request for NRC Staff Views, p. 2.
As we saw it, the answer to that question would depend primarily upon whether j
disclosure under the F0IA of the kind of information involved here would be likely to impair the ability of the Staff to obtain such information
. in the future.
In order to obtain a sound record basis for that determination, we asked the Staff to respond to a series of questions, and we granted the Applicant and Mr. Guild leave to comment on the same questions.
The Staff filed its response.
The Applicants filed comments; Mr. Guild did not.
The questions are now ripe for decision.
2.
The Discovery Request. As noted earlier, the documents in question were initially filed with the Board because they were the subject of a discovery request.
Subsequently, the Board dismissed Eddleman Contention 41-G, the contention on which the discovery request had been based. Memorandum and Order of June 12, 1985. A request for discovery must be founded upon an admitted contention.
See Duke Power Co.
(Catawba Nuclear Station), 16 NRC 1937, 1945 (1982).
Therefore, the discovery request must be denied as moot.
It could nevertheless be argued that the disputed documents should be in the public record in the case, in the event that our dismissal of the underlying contention may eventually be reversed on appeal. We reject that argument because:
(1) the Staff has shown (as more fully discussed below) that public disclosure of such information may impair its ability to regulate, and (2) the likelihood that our dismissal order will later be reversed seems remote.
In these circumstances, inclusion of the documents in the public record is clearly unwarranted.
Should our dismissal order be reversed later on, the question of public disclosure of the documents can be reconsidered. This leaves for
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. determination whether the F0IA request for the same documents should be granted.
1 3.
Threshold FOI Questions. The Applicants summarize their several grounds of opposition to the F0IA request, as follows:
(1) the documents need not be made part of the Comission's record of this proceeding, in that (1) review of the documents was not required for the Board to reject Mr. Eddleman's motion to compel and (ii) the underlying contention, which led to the discovery dispute, has been dismissed as inadmissible -- thus mooting any issues raised during discovery for purposes of appellate review; (2) pursuant to 10 C.F.R. Q 2.790(b)(5),
Applicants have an absolute right to the return of documents found by the Comission "to be irrelevant or unnecessary to the performance of its_ functions"; (3) the documents are not an " agency record" subject to production pursuant to F0IA; (4) a party may not obtain production of documents pursuant to F0IA, where production has been denied pursuant to the Com-mission's discovery rules; and (5) in any event, the documents are exempt from production pursuant to FOIA since they contain confidential commercial information and privileged self-critical analyses.
Applicants' Response, p. 2.
We need not pause long to reject the threshold questions represented by grounds (1) - (4).
As to grounds (1) - (3), the documents, although not included in the evidentiary record, are a part of the permanent agency record in this proceeding.
When the Board called for copies of these documents, consistent with standard litigation practice we did not intend to take them on loan, and we neither stated nor implied that they would be returned. Tr. 7580-81.
The Applicants' request that we return these records as " unnecessary to the performance" of Board functions (10 CFR 6 2.790(b)(5)) is denied.
Letter of May 20, 1985, p. 2.
The presence of these documents (albeit l
' on an in camera basis) in the formal agency record of this case is necessary to demonstrate the basis of contested Board rulings. Thus, the documents are government property and " agency records" within the meaning of the Freedom of Information Act.
Nor do we agree with the Applicants' overbroad proposition that an intervenor may not use an FOIA request "as an end run around the discovery rules."
Applicants' Response, pp. 12-13. That proposition is valid in some of its applications -- e.g., where the document in question is within an established privilege or subject to an explicit F0I exemption. See United States v.-Weber Aircraft Corp., 79 L.Ed.2d 814 (1984). But where, as here, a document is denied in discovery on relevance grounds, it may well be obtainable by an F0IA request, simply because F0IA requesters are not required to show relevs,ce, need,
" standing" or anything of the sort. Such "end runs" around the discovery rules are not only permissible, but commonplace.
The Staff directs our attention to a recent ruling by the Director, Division of Rules and Records, Office of Administration, holding that some apparently similar records were not "canmercial" and thus not subject to F0IA exemption 4.
Neither the Staff nor any other party urges that argument here. The Public Citizen case cited by the Director actually held that the disputed documents in that case were
" commercial"; the quoted language was dictum. See Public Citizen Health Research v. FDA, 704 F.2d 1280, 1290 (CADC 1983). The documents involved here were generated in the ordinary course of business by a
" commercial" enterprise, thus coming within the ordinary meaning of that i
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. word. The Director's ru' ling seems to imply that a document may not qualify as " commercial" unless it is also associated somehow with competitive position and the prospect of competitive injury. That is not correct.
See General Electric Co. v. USNRC, 750 F.2d 1394,1398 (CA7,1984).
We know of no basis in reason or precedent not to treat 2
the documents before us as " commercial" for exemption 4 purposes.
4.
Impairment of Regulatory Functions.
Under National Parks and Conservation Ass'n v. liorton, 498 F.2d 765, 770 (CADC 1974) and subsequent cases (including the Public Citizen and General Electric cases cited above), the documents involved here are exempt from disclosure under FOIA exemption 4 if it can be fairly said that their disclosure would impair the NRC's ability to perform its regulatory I
functions.
In order to provide a sound basis for that determination, we posed several questions to the Staff.
We repeat the questions and briefly paraphrase the Staff's answers, as follows.
1.
Are the documents in question here, and those of the type it represents, an important means by which the NRC obtains or might obtain safety information about nuclear facilities?
Staff answer:
Yes.
2.
Is the substance of such documents already required to be compiled and reported to NRC under an existing regulation or under quality assurance plans for particular facilities?
Staff answer: No.
3.
Could compilation and disclosure of such information be required under a new regulation?
1 4
I Staff answer:
Yes.
4.
Is an enforceable pledge of confidentiality from the licensee to its employees, such that resulting reports are exempt from disclosure under the Freedom of Information Act, an essential' element is having licensees generate useful documents of the kind in question.
Staff answer: Very helpful, if not essential.
S.
Taking into account the answers to the foregoing questions, and any other relevant factors, would an unrestricted grant of the pending Freedom of Information Act request be likely to impair the NRC's ability to obtain safety information in the future?
Staff answer:
Yes.
6.
If so, should the request be granted under a protective order?
Staff answer:
No.
We put these questions to the Staff because of its direct enforcement responsibilities and experience.
The Staff's responses rest upon a fairly lengthy and detailed affidavit from Mr. Walter F. Haass, a long-time NRC employee and currently a Senior Vendor Inspector Specialist in the Vendor Program Branch of the Office of Inspection and Enforcement. Mr. Haass' affidavit provides a thoughtful discussion of the issues we had posed.
Because our questions, particularly the ultiraate question of " impairment", contain large elements of judgment, a thoughtful discussion from an experienced professional like Mr. Haass deserves substantial deference from this Board.
See General Electric Co. v. USNRC, supra at 1402 (suggesting that the " impairment" question
. is a "quintessentially managerial judgment" subject to only narrow judicial review). We generally find Mr. Haass' discussion reasonable and we agree with his conclusions, except as noted below.
A copy of Mr.
Haass' affidavit is attached to this Memorandum and Order and therefore we will not restate it at length.
However, we quote the following particularly significant statements:
one born of experience) that [ nuclear facility employees](are It is my strong, albeit not statistically tested, belief and apt to be more forthcoming in revealing information when they are secure in the knowledge that their identities will not be disclosed. An applicant, on the other hand, may well be disinclined to reduce to writing such information elicited from its employees if it knew that such writings, once in the hands of the NRC, would not be exempt from disclosure under the F0IA. At a minimuni, it is not unreasonable to assume in such circumstances that an applicant would harbor serious reservations about voluntarily providing the NRC Staff with copies of such reports, particularly those reports which contain information reflecting adversely on the applicant.
Additionally, the Board should note that an unrestricted grant of the pending F0IA request appears to be at cross purposes with the Coninission's stated policy of encouraging " industry initiatives to improve safety."
Id.
This is because a grant of the pending F0IA request would send a powerful and unmistakable signal to the industry that there is little benefit in undertaking and sharing with the NRC Staff the results of a self-initiated effort to improve safety, particularly where there exists the possibility that that effort may yield information unfavorable or adverse to the applicant's position. Affidavit at 6, 8-9.
These statements are the principal foundation for the Staff's position, with which we agree, that "the pending F0IA request should be denied in its entirety because the documents sought are confidential within the meaning of Enmption 4 of the F0IA." Staff Response, p. 10.
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While we agree with the Staff's basic position, we have some reservations about parts of its analysis.
First, Mr. Haass assumes that the NRC's ability to-obtain information about any situation covered by 10 CFR 50.55(e) or 10 CFR Part 50, Appendix B, Criterion 15 would not be impaired by a grant of the pending F0IA request. The underlying assumption seems to be that all such situations are presently known to management and invariably reported to the NRC.
It seems to us, however, that that might not invariably be the case, and that a licensee program urging employees to report safety concerns on a confidential basis might ultimately bring some such situations to the NRC's attention.
- However, this reservation about Mr. Haass analysis merely reinforces our conclusion that the F0IA request should be denied.
Mr. Haass states that employees' concerns for confidentiality are
" directed more toward the non-disclosure of their identity rather than the nature of the information they provide." Affidavit, p. 6.
While we accept Mr. Haass' statement as an abstract proposition, we think it important to add that detailed safety information about a particular condition -- e.g., a defective weld -- is often known only to a few people -- e.g., the welder or the welding inspector. This means that public disclosure of such information would, in many cases, inevitably disclose or strongly suggest the identity of the concerned employee.
And in many cases, perhaps most, such disclosure might jeopardize the employee's job because his concerns would reflect unfavorably on his supervisors. For these reasons, we considered but rejected the option i
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of disclosing the documents with names of concerned employees masked 4
out.
We asked whether reporting of the kind of information involved here could be required by regulation. The Staff says yes, and we agree --
again, as an abstract proposition. One could then argue, abstractly, that the regulation would ensure reporting of the information and therefore there would be no need to pledge confidentiality to concerned employees.
In the real world, however, we think (and we assume the l
Staff would agree) it may be one thing to require a report of the kind of safety information the documents before us can provide, and quite another thing to actually get useful information.
In our view assurances of confidentiality are important to facilitate the free flow of information, whether or not its disclosure is required by an NRC regulation.
S.
Other Matters. The Staff opposes release of the documents under a protective order under which access might be limited, at 'least '
initially. to Mr. Eddleman and his Counsel. They point out that --
under the Commission's regulations, information whi.ch is exempt from disclosure under the F0IA may be disclosed only upon a determination that " production or disclosure is not contrary to the public interest and will not adversely affect th'e rights of any person..." 10 C.F.R. 5 9.9(a).
Disclosure of the documents sought could, as explained in this Response, hamper the Staff's regulatory efforts because it could, impair the Staff's future ability to obtain safety information of the type in question.
It certainly is not in the public interest to impair the Staff's ability to obtain information that could assist it in achieving its regulatory goals.-
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The Staff does not focus specifically on the effect of limited access on possible impairment of its functions.
We believe, however, that the protective order device probably would not be a sufficient safeguard against such impairment.
If release of these documents subject to a protective order were to be the NRC's standard practice, licensees could not promise effective confidentiality to those employees whose voluntary cooperation they seek.
The Applicants have urged exemption from disclosure of the documents in question under F0IA exemption 4 on the ground that they are privileged self-critical analyses.
Response, pp. 14-20.
They discuss that privilege and cases applying it in some detail. While the Applicants arguments seem persuasive, we decline to reach this question because the scope of this recently-recognized privilege seems potentially broad and uncertain and it is unnecessary to our decision.
We prefer to rest our decision on the narrower issue whether the Staff's regulatory function is likely to be impaired -- an issue the Staff is best qualified to address.
In their comments on the questions we posed to the Staff, the Applicants direct our attention to portions of the affidavits they had previously filed which bear on the need to assure confidentiality to employees and other relevant issues.
We have considered these affidavits and find them generally supportive of our conclusions.
Pursuant to the foregoing discussion, Mr. Eddleman's request under the Freedom of Information Act and the Commission's implementing regulations for copies of the documents described at pp. 1-3 of this
. Memorandum and Order is denied. The Applicants request pursuant to 10 CFR S 2.790(b)(1) that the documents be withheld from disclosure is granted. Pursuant to 10 CFR 9.11,.15, this initial determination may be appealed to the Secretary of the Commission'within 30 days of receipt of this Memorandum and Order. The appeal shall be in writing addressed to the Secretary, U.S. Nuclear Regulatory Comission, Washington, D.C.
20555, and should clearly state on the envelope and in the letter, that it is an " Appeal from Initial FOIA Decision." An appeal that is not so marked will be deemed not to have been received by the NRC until it is actually received by the Secretary.
THE ATOMIC SAFETY AND
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LICENSING BOARD b e --+
M (afnes L. Kelley, Chairmp ADMINISTRATIVE JUDGE I,z m d
%^pW Dr James H'. Carpenter INISTPATIVE JUDGE b>
W Bethesda, Maryland GTenn 0. Bright
/
September 9, 1985 ADMINISTRATIVE JUDGE