ML20136B085

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Comments on Statement of Policy in Confidential Info. Commission May Not Want to Require in Camera Conference. Board Decision on Request for Confidentiality Constitutes Ruling by Board,Not Disagreement Between Board & NRC Staff
ML20136B085
Person / Time
Issue date: 10/23/1984
From: Edles G
NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP)
To: Olmstead W
NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD)
Shared Package
ML19310G510 List:
References
FRN-48FR36358, RULE-PR-2 AB78-1-007, AB78-1-7, NUDOCS 8511200128
Download: ML20136B085 (6)
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Text

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9 e ato - N i#  %,, UNITED STATES h (3 D p j

  • [ g NUCLEAR REGULATORY COMMISSION pvp .

3 j ATOMIC SAFETY AND LICENSING APPEAL PANEL

          • * .9 October 23, 1984 .@

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MEMORANDUM TO: William Olmstead Regulat ans Division Office of the x2cutive Legal Director p , d

[ -tD FROM: Gary J. Edle s

  • Atomic Safely R Licensing /

Appeal Pa iel *

SUBJECT:

NRC STATEMENT OF POLICY IN CONFIDENTIAL INFORMATION pO The NPR basically restates, as far as I can tell, what the Commission earlier agreed to. I have only two observations. First, the NPR seems to contemplate mandatory oral in camera proceedings once a request comes in. But a presiilIng offTcer may be able to make a determination, particularly as to relevance or materiality, on the basis of the papers alone. The Commission clearly wants to permit --

but I'm not sure it wants to require -- an in camera conference. See my suggestions at pp. 4 ant 13. Second, a Board decision on a request for confidentiality constitutes a " ruling" by the Board, not a " disagreement" between the Board and the NRC staff. (The Board, after all, is acting as the Commission's alter ego in c.n adjudication.) I would modify slightly pp. 5-6.

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Statement of Policy. In general, information will be eligible for protec-tion from disclosure if it can be shown that the information relates to an inspection or investigation and that disclosure of the information even ~

under restriction or protective order would be detrimental to the effective conduct of the inspection or investigation. The information need not relate sclely to an ongoing inspection or investigation but may also include infor-mation on the basis of which the NRC may determine whether to initiate an inspection or investigation. Information will also be eligible for protec-tion from disclosure if it can be shown that the information would reveal After the con-the identity or otherwise compromise a confidential source.

flict between the obligation to disclose and the need to protect a particular item of information has become apparent, the NRC office possessing the information may use the proposed special procedures to resolve the conflict.

Under the special procedures, the appropriate NRC office must submit a written request for relief from the disclosure requirement to the presiding officer of the pending adjudication. The request mast transmit the informa-tion for which protection is sought, provide a brief summary of its nature and source, and explain the relevance of the information to the adjudication.

The request must also state why and to what extent disclosure of the infor-mation even under restriction or protective order will compromise or impede the conduct of an investigation or inspection, or reveal the identity or otherwise compromise a confidential source. g3 Upon receipt of an NRC request for relief, the presiding officer h schedule an ni_n, camera presentation which shall have priority over other matters awaiting decisten. Under the proposed amendnents, the presiding

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{a officer is also authorized to hold an j_n, ncamera presentation at any time on

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his or he'r own initiative.

Although attendance at an in camera presentation is strictly limited to the presiding officer and to appropriate NRC personnel, all parties to the adjudication must be notified whenever an h camera presentation concerning thc disclosure or nondisclosure of information is to be held. The substan-tive content of the information presented h camera may not be disclosed. A verbatin transcript will be made of each h camera presentation.

Upon the conclusion of an h camera presentation and after finding that the inforn.ation for which protection is sought is both relevant and material to the pending adjudication, the presiding officer will decide, in the light of Commission policy favoring full disclosure, whether the information merits protection against disclosure to enable NRC to conduct an investigation or inspection fully and adequately or to protect the identity or otherwise preserve the integrity of a confidential source, or whether the information must be disclosed. The decision may include any terms and conditions con-sidered necessary and appropriate; a copy shall be served on the NRC office having the information to which the decision relates. Within ten days after service of the decision, the NRC office may file a written statement of concurrence or objection. The decision will become effective twelve days after the date of service unless the decision otherwise provides or is required to be certified to the Commission for review.

ralin Every M 5;$gii requiring disclosure of the identity or of information relating to the identity or that would otherwise compromise a confidential source and every g de+464e "='"%; r =c;chcd dinscccmcat husu n g jgn on (N h Ch #

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d ri;i x .;'.. 2 must be certified to the Comission for review. Upon certification, th/ decision is automatically stayed until the Commission has completed its review and issued a decision. Pending review, the Comission will hold the decision and the accompanying record in_ camera.

The preciding officer must notify all parties to an adjudication whenever a decision relating to the disclosure or nondisclosure of information is certified to the Comission for review and infonn the parties of their right to submit timely in camera briefs. After completing its review in accordance with the standards in 6 2.795g of the proposed rule, the Comission will decide whether to affirm, reverse or modify the decision.

I Under the proposed procedures, information required to be protected shall be deemed sealed pending further order of the presiding officer or the Comr.ission, as appropriate, and may not be disclosed in any adjudication or used in making any licensing or related regulatory decision unless and until publicly released. .

Any NRC office which possesses protected information, including infor-mation protected from disclosure because it relates to an inspection or investigation, may consent to its release at any time by notifying the The information may presiding officer or the Commission, as appropriate.

then be disclosed without further order, unless the information will reveal the icentity or otherwise compromise a confidential source, in which case a Comission order is required. Upon order of the presiding officer or the Comission, as appropriate, information protected from disclosure because it relates to an investigation or inspection may be released when the

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5. A brief explanation why and to what extent disclosure of the information even under restriction or protective order will compromise-or impede the conduct of an investigation or inspection, or reveal the identity or otherwise compromise a confidential source; O #
6. The proposed relief requested, a

y, p Janj robe 5 2.795d Request for relief; priority. ,

ae lo 08##F g In any pending adjudication,kam4WC request for relief from the t-esen requirement to disclose relevant and material information shall have A ,

priority over other matters to be decided by the presiding officer.

i 2.795e Notice of h camera presentation.

The presiding officer shall promptly notify all parties to a pending adjudication that an M camera presentation will be held. A notice in response'to an NRC application requesting h camera presentation and relief from the requirement to disclose relevant and material information shall be issued no later than five days after the request has been received. The notice shall state the purpose. time and place of the h camera presentation and the approximate date a decision concerning the disclosure or nondisclo-sure of the information subject to the presentation may be expected. The substantive content of the information shall not be disclosed. -

6 2.795f h camera presentation; procedure.

(a)- An M, camera presentation shall be held no later than five days after issuance of the notice required by. 6 2.795e.

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cc: Harold-R.'Denton,'Dir., NRR ,

John _G. Davis,.-Dir.,.NMSS Robert B. Minogue, Dir., RES <

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Richard-C. DeYoung,_:Dir., IE ,

Kenneth"E. Perkins, Jr., IE

-Ben _B.. Hayes, Dir., OI aogerfFortuna, OI William J.L. Ward, OI

.Sharon:Connelly, Dir., OIA ,

-G. Wayne;Kerr,' Dir.,.SP-Patricia G. Norry, Dir.,'Adm.

e Joseph. M. -Felton, Dir. , DRR John D. Philips, Chief, RPB Joseph J. Fouchard, Dir., PA Alan S. Rosenthal, Chm., ASLAP-B. Paul' Cotter, Jr., Chm.,.ASLBP Robert'M.'Lazo, ASLBP David L'.~Prestemon, ASLBP Ivan W. Smith, ASLBP

Herzel H.E.-Plaine, GC

. Martin G. Malsch, GC James A. Fitzgerald, GC Richard P. Levi, GC k

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