ML20136F399
| ML20136F399 | |
| Person / Time | |
|---|---|
| Issue date: | 10/12/1984 |
| From: | Olmstead W NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD) |
| To: | Minogue R NRC OFFICE OF NUCLEAR REGULATORY RESEARCH (RES) |
| Shared Package | |
| ML19310G510 | List:
|
| References | |
| FRN-48FR36358, RULE-PR-2 AB78-1-005, AB78-1-5, NUDOCS 8410300382 | |
| Download: ML20136F399 (1) | |
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October 12, 1984 pg 1_
. TERAOyes@No MEMORANDUM FOR: Robert B. Minogue, Director O s S/F:
Office of Nuclear Regulatory Research ineex (
FROM: William J. Olmstead Title of file-Director and Chief Counsel, Regulations Division Office of the Executive Legal Director -
SUBJECT:
NRC STATEMENT OF POLICY ON INVESTIGATI0hd IBSPIC"0Z AND ADJUDICATORY PROCEEDINGS - INITIATION OF RULEMAKING TO ESTABLISH SPECIAL PROCEDURES FOR RESOLVING CONFLICTS CONCERNING THE D,ISCLOSURE OR N0NDISCLOSURE OF INFORMATION.
In accordance with the Commission's instructions (see attached staff requirements memorandum, M840906B, September 10, 1984, memorandum of September 12, 1984 from the Secretary to the Executive Director for Operations, and ED0 14784) we have begun work on a rulemaking which would establish special procedures for resolving conflicts concerning the disclosure or nondisclosure of information developed during an NRC investigation or inspection or provided by a confidential source and deemed relevant and material to an adjudication. Since the Commission has already decided to undertake this rulemaking, the customary predecisional regulatory analysis and value-impact assessment will not be needed and will, therefore, not be prepared.
William J. Olmstead Director and Chief Counsel Regulations Division Office of the Executive Legal Director Attachments:
As stated DISTRIBUTION JRMapes WJ0lmstead OELD R/F OELD S/F e r File gli10 3O6 S & f k jl.
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'? UNITED STATES IN RESPONSE, PLEASE
% M840906B REFER TO:
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.e September 10, 1984 Cys: Dircks CFFICE OF THE Roe SECRETARY Stello MEMORANDUM FOR: Herzel H.E. Plaine, Gene ounsel Minogue Denton FROM: Samuel J. Chilk, Secreta - DeYoung 7
SUBJECT:
STAFF REQUIREMENTS - AFF IR ION / DISCUSSION AND VOTE, 3:30 P.M., THURS: , SEPTEMBER 6, 1984, COMMISSIONERS' CONFERENCE ROOM, D.C.
OFFICE (OPEN TO PUBLIC ATTENDANCE)
I. SECY-84-307 - Petition of Alabama Power Company for Declaratory Order Interpreting Antitrust License Condition The Commission, by a vote of 5-0, approved an order denying Alabama Power Company's request that the Commission clarify the utility's obligation under the antitrust license conditions in the Farley Nuclear Plant Operating License and indicated that the usual procedures in 10 CFR Part 2, Subpart B (10 CFR R 2.206) should be used. -
(Subsequently, on September 7, 1984 the Secretary signed the Order.)
II. SECY-84-276/276A - Report of the Task Force on Investigations, Inspections and Adjudicatory Proceedings The Commission, by a vote of 5-0, approved a Final Statement of Policy on Investigations, Inspections and Adjudicatory Proceedings and directions to the EDO to initiate rulemaking (see attached memo).
(Subsequently, on September 7, 1984 the Secretary signed the Policy Statement.)
Attachment:
As stated cc: Chairman Palladino Commissioner Roberts Commissioner Asselstine Commissioner Bernthal Commissioner Zech Commission Staff Offices EDO PDR - Advance DCS - 016 Phillips
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- 't UNITED ST ATES REF: EDO 14784 y'+ fd NUCLEAR REGULATORY COMMISSION f k.7 k W ASH IN GT ON. D.C. 20555 hh[*'/ ACTION - GCunningham September 12, 1984 .Cys: Dircks
% , , ,', , - Roe OFFICE OF THE Rehm SECRETARY ggg)g9 Minogue Denton .
DeYoung MEMORANDUM FOR: William J. Dircks, Exec ive Director for Operations I
- FROM: Samuel J. Chilk, Secre(
SUBJECT:
RELATIONSHIP BETWEEN INVESTIGATIONS /
INSPECTIONS AND ADJUDICATIONS (SECY-84-276/276A)
The Commission has adopted a Statement of Policy on the procedures-to be followed in resolving the potential
- conflict between the duty to disclose information to adjudicatory boards and parties and the need to protect information obtained in investigations and inspections.
However, because the in camera procedures being adopted are a departure from iiormal Commission practice, the Commission believes it would be desirable for them to be implemented through a rulemaking.
Accordingly, the Commission requests that you implement the procedures in the-Policy Statement through a rulemaking.
You should proceed to issue a proposed rule (based upon the policy statement) for comment and prepare a final rule for Commission consideration following analysis of the comments received. Should you need additional guidance in pre-paration of the proposed rule (beyond the Policy Statement) you should consult with the Commission.
(EDO/ ELD) (SECY Suspense: Issue proposed rule: 12/15/84)
Final rule to Commission: 3/30/85) cc: Chairman Palladino Commissioner Roberts Commissioner Asselstine
! Commissioner Bernthal Commissioner Zech OGC Rec'd Off. EDO a
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, CHAIRMAN ,
FtLE LOCATION OcxtcuTur piaccfoa OTHER O tcTTrn O ucwo O ni,0=T O OTHen sPECIAL INSTRUCTIONS OR REMARKS DESCRIPTION' Commission directs flRC staff to commence a rulemaking on conflict between the need for disclosure to the board and parties and the need to protect an investigation or inspection . .
ASSIGNED TO DATE WORM ATION ROUTING Cunningham. ELD 9/12/84 Dircks, for APPROP. ACTION' Roe '
Rehm Stello Minogue .
Denton
- DeYoung l-1 EXECUTIVE DtRECTOR FOR OPERATIONS # # " * * ",
NRC Form 23; "M- PRINCIPAL CORRESPONDENCE CONTROL
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.S'TATEMENT OF POLICY INVESTIGATIONS,-INSPECTIONS, AND ADJUDICATORY PROCEEDINGS .
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On August 5, 1983, the Commission set forth interim proce-dures for handling conflicts between the NRC's responsibility to disclose information to adjudicatory boards and parties, and the NRC's need to protect investigative material from premature public disclosure. " Statement of Policy -- Investigations and Adjudicatory Proceedings," 48 Fed. Reg. 36358 (August 10, 1983).
Those interim procedures called for the NRC staff or Office I of Investigations (OI), when it felt disclosure of information to an adjudicatory board was required but that unrestricted disclo-sure could compromise an inspection or investigation, to present the information and its concerns about disclosure to the board in camera, without disclosure of the substance of the information to the other parties. A board decision to d'isclose the information to the parties was appealable to the Commission, and the board was not to order disclosure until the Commission addressed the matter.
That Statement of Policy was to remain in effect until the Commission received and took action on the recommendations of an internal NRC task force established to develop guidelines for reconciling these conflicts in individual cases. The Commission in that Statement also requested public comments on the propriety and desirability of ex parte in camera presentation of informa-tion to a board, and suggestions for any better alternatives.
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2 The Task Force submitted its report to the Commission on December 30, 1983. A copy of that report will be placed in the Commission's Public Document Room. The Task Force approved the principles discussed in the Commission's earlier Statement of Policy, and made several recommendations intended to define specifically the responsibilities of the boards, the staff, and OI in presenting disclosure issues for resolution.
The Task Force recommended that the final Policy Statement explain that full disclosure of material information to adjudica-tory boards and the parties is the general rule, but that some conflicts between the duty to disclose and the 1.aed to protect information will be inevitable. The Task Force further recom-mended that issues regarding disclosure to the parties he initi-ally determined by the adjudicatory boards with provision for I
expedited appellate review, and that procedures for the resolu-tion of such conflicts be established by rule. Finally, the Task Force suggested that existing board notification procedures
- should remain unaffected by the Policy Statement, and that those procedures and Commission guidelines for disclosure of informa-tion concerning investigations and inspections should apply to all NRC offices. Those recommendations have been incorporated in this Statement.
In addition, two comments were submitted by members of the public.
One commenter stated that the withholding of information .
from public disclosure should be confined to the minimum
, 3 essential to avoid compromising enforcement actions, and that appropriate-representatives of'each party should be allowed to participate under suitable protective orders in any in camera proceeding except in the most exceptional cases.
The other commenter maintained that an in camera presenta-tion to the board with only one party present is undesirable and violates the ex parte rule. That commenter suggested an alterna-tive of having the attorneys or authorized representatives of parties who have signed a protective agreement present at any in camera presentation, with appropriate sanctions for violating the protective agreement.
The Commission, after considering these comments and the
-report of the Task Force, has decided that it wod1d be appropri-ate, in order to better explain the Commission's policy in this area, to provide the following explanation of the conflict between the duty to disclose investigation or inspection informa-tion to the boards and parties and the need to protect that information:
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Both-comments also included suggestions regarding matters beyond the scope of this Policy Statement, which is concern'ed only with establishing a procedure to handle conflicts between the-duty to disclose information to the boards and parties and the need to protect that information. For instance, one suggestion was-that the NRC impose a more stringent standard in deciding whether information warrants a board notification.
Another recommended that the NRC improve the quality of its investigations.
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4 All parties in NRC adjudicatory proceedings, including the NRC staff, have a duty to disclose to the boards and other parties all new information they acquire which is considered material and relevant to any issue in controversy in the proceed-ing. Such' disclosure is required to allow full resolution of all issues in the proceeding. The Commission expects all NRC offices to utilize procedures which will assure prompt and appropriate action to fulfill this responsibility.
However, the Commission recognizes that there may be con-flicts between this responsibility to provide the boards and parties with information and an investigating or inspecting office's need to avoid public disclosure for either or both of two reasons: (1) to avoid compromising an ongoing investigation or inspection; and (2) to protect confidential sources. The importance of protevcing information for either of these reasons can in appropriate circumstances be as great as the importance of disclosing the information to the boards and parties.
With regard to the first reason, avoiding compromise of an investigation or inspection, it is important to informed licens-ing decisions that NRC inspections and investigations are conducted so thet all relevant information is gathered for appropriate evaluation. Release of investigative material to the subject of an investigation before completion of the investi-gation could adversely affect the NRC's ability to complete that investigation fully and adequately. The subject, upon discover-ing what evidence the NRC had already acquired and the direction
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being taken by the NRC investigation, might attempt to alter or limit the direction or the nature or availability of further statements or evidence, and prevent NRC from learning the facts.
The failure to ascertain all relevant facts could itself result in the NRC making an uninformed licensing decision. However, the need to protect information developed in investigations or inspections usually ends once the investigation or inspection is completed and evaluated for possible enforcement action.
The second reason for not disclosing investigative material
-- to. protect confidential sources -- has a different basis.
Individuals sometimes present sa#ety concerns to the NRC only after being assured that their individual identity will be kept confidential. This desire for confidentiality may arise for a number of reasons, including the possibility of harassment and retaliation. Confidential sources are a valuable asset to NRC inspections and investigations. Releasing names to the parties in an adjudication after promising confidentiality to sources would be detrimental to the NRC's overall inspection and investi-gation activities because other individuals may be reluctant to bring information to the NRC. However, the need to protect confidential sources does not end when the investigation or inspection is completed and evaluated for possible enforcement action.
By this Policy Statement, the Commission is not attempting to resolve the conflict.that may arise in each case between the duty to disclose information to the boards and parties and the
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need to protect that in' formation or its source. The resolution of actual conflicts must be decided on the merits of each indi-vidual case. However, the Commission does note that as a general :
rule it' favors full disclosure to the boards and parties, that information should be protected only when necessary, and that any limits on disclosure to the parties should be limited in both scope and duration to the minimum necessary to achieve the purposes of the non-disclosure policy.
The purpose of this Policy Statement is to establish a procedure by which the conflicts can be resolved. The Policy Statement takes over once a determination has been made, under established board notification procedures, that information should be disclosed to the boards and public, but OI or staff believes that the information should be protected. In those cases the Commission has decided that the only workable solution to protect both interests is to provide for an in camera presen-tation to the board by the NRC staff or OI, with no other party present. Any other procedure could defeat the purposes of non-disclosure and might actually inhibit the acquisition of information critical to decisions. Allowing the other parties or their representatives to be present in all cases, even under a protective order, could breach promises of confidentiality or allow the subject of an investigation to prematurely acquire information about that investigation. We note in this regard'the difficulties of attempting to prevent a party's representative
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- 7 from talking to his clie'nt about the relevance of the information and how to respond to it, even under a protective order.
The Commission believes that the boards, using the proce-dures established in this Policy Statement, can resolve most potentia 1' disclosure conflicts once they have been advised of the nature of the information involved, the status of the inspection or investigation, and the projected time for its completion. In many of the cases when the procedures in this Policy Statement are triggered by a concern for premature public disclosure, it may be possible for boards to provide for the timely considera-tion of relevant matters derived from investigations and inspec-tions through the deferral or rescheduling of issues for hearing.
In other instances, the boards may be able to resolve the conflict by placing limitations on the scope of disclosure to the parties, or by using protective orders.
The Commission wishes to emphasize that these procedures do not abrogate the well-established principal of administrative law that a board may not use ex parte information presented in camera in making licensing decisions. These procedures are designed to allow the boards to determine the relevance of material to the adjudication, and whether that information must be disclosed to the parties, and, if disclosure is required, to provide a mecha-nism for case management both to protect investigations and inspections and to allow for the tinely provision of material and relevant information to the parties. As such these procedures-are analogous to the procedures for resolving disputes regarding
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. discovery, see, e.g., 10 CFR 2.740 (c) , and do not violate the prohibition in 10 CFR 2.780 against ex parte discussion of substantive matters.at issue. .
In accord with the above discussion, the Commission has decided that the procedures to be followed, where there is a conflict between the need for disclosure to the board and parties and the need to protect an investigation or inspection, will include in camera presentations by the staff or OI. However, because this procedure represents a departure from normal Commis-sion procedure, it is the Commission's view that the decision should be implemented by rulemaking. Accordingly, the Commission directs the NRC staff to commence a rulemaking on the matter.
Until completion of the rulemaking, the following will control the procedures to be followed in resolving conflicts between the duty to disclose to boards and the need to protect information developed in investigation or inspection:
- 1. Established board notification procedures should be used by staff or OI to determine whether information in their posses-sion is potentially relevant and material to a pending adjudica-tory proceeding.2 The general rule is that all information warranting disclosure to the boards and parties, including information that is the subject of ongoing investigations or inspections, should be disclosed, except as provided herein.
2 While this Statement refers only to staff and OI who are (Footnote Continued)
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- 2. When staff or 01 believes that it has a duty in a particular case to provide an adjudicatory board with information concerning an inspection or investigation, or when a board ,
requests such information, staff or OI should provide the infor-mation to the board and parties unless it believes that unre-stricted disclosure would prejudice an ongoing inspection or investigation, or reveal confidential sources. If staff or OI believes unrestricted disclosure would have these adverse results, it should propose to the board and parties that the information be disclosed under suitable protective orders and other restrictions, unless such restricted disclosure would also defeat the purpose behind non-disclosure. If staff or OI believes that any disclosure, however restricted,' would defeat the purpose behind non-disclosure, it shall provide the board with an explanation of the basis of its concern about disclosure and present the information to the board, in camera, without other parties present. A verbatim transcript of the in camera proceeding will be made.3 All parties should be advised by the board of the conduct and purpose of the in camera proceeding but should not be informed of the substance of the information presented. If,
[ Footnote Continued]
the organizations principally involved, the statement will apply to any other offices of the Commission which may have the problem.
3 Nothing in this Statement prohibits staff and oI from sharing information.
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after such in camera presentation, a board finds that disclosure to other parties under protective order or otherwise is required (e . a . , withholding 'information may prejudice one or more parties or jeopardize timely completion of the proceedings, or the board disagrees that release will prejudice the investigation), it shall notify staff or OI of its intent to order disclosure, specifying the information to be provided, the terms of any protective order proposed, and the basis for its conclusion that prompt disclosure is required. The staff or OI shall provide the board within a reasonable period of time, to be set by the board, a statement of objections or concurrence. If the board disagrees with any objection and the disagreement cannot be resolved, the board shall promptly certify the record of the in camera proceed-ing to the Commission for resolution of the disclosure dispute, and so inform the other parties. Any licensing board decision to order disclosure of the identity of a confidential source shall be certified to the Commission for review regardless of whether OI and staff concur in the disclosure.4 The board's decision shall be stayed pending a Commission decision. The record before
-the Commission shall consist of the transcript, the board's Notice of Intent to require disclosure and the objections of 4 The Commission has decided to review any licensing board decision ordering disclosure of the identity of a confidential source because of the importance to the Commission's inspection and investigation program of protecting the identity of confidential sources.
..' - 11 Staff or OI. Staff or OI may file a brief with the Commission within ten days of filing a statement of objections with the board. The record before the Commission, including staff or ,
OI's brief, shall be kept in camera to the extent necessary to protect the purposes of non-disclosure.
The Commissit; recognizes that no other party may be in a position effectively to respond to staff or OI's brief because the proceedings have been conducted in camera. However, in those cases where another party feels that it is in a position to file a brief, it may do so within seven days after staff or OI files its brief with the Commission.
- 3. Staff or OI shall notify the board and, as appropriate, the Commission, if the objection to disclosure to the parties of previously withheld information, or any portion of it, is withdrawn. Unless the Commission has directed otherwise, such information -- with the exception of the identities of confiden-tial sources -- may then be disclosed without further Commission order.
- 4. When a board or the Commission determines that informa-tion concerning a pending investigation or inspection should not be disclosed to the parties, the record of any in camera proceed-ing conducted shall be deemed sealed pending further order. That record will be ordered included in the public record of the adjudicatory proceeding upon completion of the inspection or investigation, or upon public disclosure of the information involved, whichever is earlier, subject to any privileges that
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may validly be claimed under the Commission's regulations, including protection of the identity of a confidential source.
Only the Commission.can order release of the identity of a ,
confidential source.
Dated at Washington, D.C. this 7 Y day of September, 1984.
U.S. NUCLEAR REGULATORY COMMISSION I
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(, SAMUg7.CHILK Secretary o r the Commission e
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