ML20138P095
| ML20138P095 | |
| Person / Time | |
|---|---|
| Issue date: | 11/01/1985 |
| From: | Chilk S NRC OFFICE OF THE SECRETARY (SECY) |
| To: | Plaine H NRC OFFICE OF THE GENERAL COUNSEL (OGC) |
| References | |
| REF-10CFR9.7 M851024, NUDOCS 8511060394 | |
| Download: ML20138P095 (21) | |
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IN RESPONSE, PLEASE*
ua%^o UNITED STATES REFER TO: M851024
! g g NUCLEAR REGULATORY COMMISSION ,
g . E W ASHIN GTON, D.C. 20555
%> ,o November 1, 1985
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OFFICE OF THE l SECRETARY MEMORANDUM FOR: Herzel H.E. Plaine, General Counsel FROM: [CSamuel b J. Chilk, Secretary l,~
SUBJECT:
STAFF REQUIREMENTS MEMORANDUM - AFFIRMATION /
DISCUSSION AND VOTE, 11:30 A.M., THURSDAY, OCTOBER 24, 1985, COMMISSIONERS' CONFERENCE ROOM, D.C. OFFICE (OPEN TO PUBLIC ATTENDANCE) i I. SECY-85-34B - Policy Statement on Confidentiality The Commission, by a 5-0 vote, approved the policy statement as modified in the attached copy. You should revise the statement as indicated and return it for signature and publication in the Federal Register.
(OGC) (SECY Suspense: 11/15/85)
Attachment:
As stated cc: Chairman Palladino Commissioner Roberts Commissioner Asselstine Commissioner Bernthal Commissioner Zech Commission Staff Offices EDO PAR - Advance VCCS - 016 Phillips O PDR
.h NUCLEAR REGULATORY COMMISSION Statement of Policy on Confidentiality AGENCY: Nuclear Regulatory Commission. .
ACTION: Final Commission Policy Statement.
SUMMARY
- This statement presents the Commission's policy for protecting the identity of an individual who has been promised confidentiality. It provides details regarding the background of the development of this statement of policy. It also explains the circumstances under which the NRC may grant confidentiality, and the manner and form in which confidenti-ality will be granted. Finally, it will describe the circum-stances and extent to which the identity of a confidential source may be divulged, and the circumstances under which a j grant of confidentiality may be revoked.
1 EFFECTIVE DATE: (Upon publication in the Federal Register)
FOR FURTHER INFORMATION CONTACT: Richard P. Levi, Office of the General Counsel, U.S. Nuclear Regulatory Commission, Washington, D.C. 20555 (202-634-1465).
SUPPLEMENTARY INFORMATION:
Introduction The Nuclear Regulatory Commission ("NRC" or " Commission")
has decided to issue this Statement of Policy in order to provide a clear, agency-wide policy on confidentiality. The
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Commission's inspection and investigatory programs rely in part on individuals voluntarily coming forward with.
information. Some individuals will come forward only if they believe their identities will be protected from public disclo-Q' sure, i.e., th y are given confidentiality.
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identity of p' confidential sourceC is therefore a significant factor in ensuring the future voluntary flow of such information.
The Commission through this Policy Statement, which applies to all NRC offices, intends to make clear that it will make its best ef forts to protect the -identity of a ecnfidential source. As explained in more detail below, the identity of a confidential source will be divulged within the NRC only to those with a need-to-know. It will be divulged outside the NRC only in the following narrow situations:
(1) When a court orders such disclosure; (2) When required in NRC adjudicatory proceedings by order of the Commission itself; (3) When a fFederal or sState agency requires the identity in furtherance of its statutory responsibilities and agrees to abide by the terms of the Commission's confidentiality agreement, and the confidential source agrees to the release; if the
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source does not agree to the release, the identity of the source will be provided to another. agency only in an extraordinary case where the Commission itself finds that furtherance of the public interest requires such release; or (4) When-requested-in-writing-by-the-Ehairman-ef-a In -
A response to a Congressional Eemmittee-with A
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This approach mill protect the identity of confidential sources except in a few, unusual situ'ations. In those situ-ations the Commission will take whatever actions it can, such as seekinc a protective order, to limit disclosure to the minimum extent necessary.7-such-as-seeking-a-pretective-erderr The following discussion provides details regarding the background of the development of this Policy Statement. It also explains the circumstances under which the NRC may grant confidentiality, and the manner and form in which confidenti-ality will be granted. Finally, it will describe the circum-stances and extent to which the identity of a confidential source may be divulged, and the circumstances under which a grant of confidentiality may be revoked.
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Background
The Commission created an Advisory Committee For Review of Investigation Policy on Rights of Licensee Employees Under i
Investigation (hereinafter " Advisory Committee") on February 29, 1983. One of the issues the Commission asked the Advisory 1 Committee to address concerned confidentiality. ,
The Advisory Committee, which submitted its report to the Commission on September 13, 1983, defined confidentiality as "the withholding from dissemination to the public ... of the I
name and other personal identifiers of certain individuals who j provide information to the Commission'." The Advisory Commit-l tee noted that a grant of confidentiality would be subject to certain limitations, e.g., the confidential source's name might be revealed to another agency, a court, or a hearing board, or might be publicly released where the source acted in a manner inconsistent with the grant of confidentiality. The
] Advisory Committee recommended against granting confidential-ity to all interviewees because of the difficulty of imple-
! menting effective confidentiality agreements, and the difficulties which grants of confidentiality might cause to an investigation or enforcement action. The Advisory Committee i also recommended against adopting different policies for i i different types of interviewees, although it noted that the status of the interviewee may be a valid consideration in
- making a case-by-case determination on whether to grant i
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confidentiality. Finally, the Advisory Committee recommended that the Commission not normally grant confidentiality in the absence of a request, and that the NRC advise a witness of the availability of confidentiality only where appropriate in the judgment of the investigator.
The Department of Justics (DOJ) commented on the Advisory Committee's report on February 16, 984. The DOJ agreed that the NRC should not have a blanket policy of granting confiden-tiality to every witness who requests it. The DOJ felt that giving confidentiality would be most important in the case of those who report a violation, the exi-stence of which is unknown to the NRC, while giving confidentiality would be least important for those who only confirm or corroborate a violation after the NRC has discovered the violation and the probable identity of those responsible. The DOJ felt that witnesses in a third category -- those who give leads to the NRC regarding how a known violation occurred and/or who may have been responsible -- presented a more difficult question. '
The DOJ then took issue with the limitations on grants of
- confidentiality suggested by the Advisory Committee. The DOJ stated that the possibility of disclosure of a confidential source's identity is "quite remote." The DOJ maintained that the NRC would not have to disclose a confidential source's c identity to another public agency, and that an interviewee should not necessarily be considered to have waived confiden-tiality by providing information to another person which 1
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contradicts what he told the NRC. The DOJ further stated that a hearing board does not have the authority to compel disclo-sure of a confidential source's identity, and that a court-would do so only under extremely rare circumstances, and, even then,'under very restricted conditions. The DOJ concluded that the NRC should assure anyone given confidentiality "of the ability and efforts available to protect his identity."
Policy Statement The Commission's investigative and inspection programs rely in part on individuals coming forward with information about safety concerns or perceived wrongdoing. See, e.g.,
Union Electric Company (Callaway Plant, Units 1 and 2),
ALAB-527, 9 NRC 126, 134 (1979). Public release of the identities of those who ccme forward with such information could lead to reprisals against those individuals. Reprisals may involve not only physical harm to the individual, but may "take more subtle forms such as economic duress, blacklisting or ostracism." In re United States, 565 F.2d 19, 22 (2d Cir.
1977), cert. denied sub nom. Bell v. Socialist Workers Partv, 436 U.S. 962 (1978). See also Houston Lighting & Power Company (South Texas Project, Units 1 and 2) , ALAB-639,13 NRC 469 (1981). Such actions obviously would deter others from coming forward with information, and, accordingly, could jeopardize the effectiveness of the NRC's activities.
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Both Congress and the Commission have recognized this concern. Section 210 of the Energy Reorganization Act, 42 U.S.C. 5851, and the Commission's regulations implementing that section are designed to protect those who assist the NRC in carrying out its safety responsibilities from retaliation.
Similarly, the Ccmmission's regulations authorize the with-holding of the identities of confidential sources from public release. 10 CFR 2.74 4 (d) , 2.790 (a) (7) . Further, Part 21 of the Commission's regulations provides that, "as authorized by law," the identity of individuals "not subject to the regula-tions in this part" who report certain nuclear safety-related problems "will be withheld from disclosure." 10 CFR 21.23.
The folicwing discussion explains the Commission's general policy t W b Nifidentiality.
- 1. Circumstances under which confidentiality may be granted The Commission, while it recognizes the importance of confidentiality, does not believe that confidentiality should be granted to all individuals who provide information to the NRC, er-even that it should be granted as a routine matter, or even that individuals should routinely be advised of its availability prior to being interviewed. Rather, the Commission believes that confidentiality should be granted only when necessary to acquire information related to the l Commission's responsibilities, or when warranted by special circumstances. It should ordinarily not be granted, for I
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instance, when the individual is willing to provide the l i information without being given confidentiality.
I This determination is based on several considerations. t i First, there is little purpose as a general matter in offering
- cn; granting confidentiality to someone who has not requested '
it. Indeed, such action could impede the free flow of information by implying that the witness needs ,
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l confidentiality, and could lead to difficulties in utilizing I i
l the information at a later time in connection with an j
investigation or enforcement action. Second, it is essential
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I (ffconfidentialityisgranted)toprotecttheidentityofthe ,
, confidential source to the utmost extent possibi ( Widespread ,
grants of confidentiality would increase the likelihcod that the identity of a confidential source would be inadvertently
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released. En-eddition Third, the Advisory Committee was aware of "no empirical evidence" indicating that widespread grants j of confidentiality might increase significantly the flow of l information to the Commission, a primary reason for ever l
4 considering widespread grants, i
j The Commission recognizes, however, that some individuals whodesireconfignt tgy t request it because of an j erroneous belief that all information Orreided to the NRC 4sr 5
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done-se in confidence, and some individuals 'may not provide I;
information because they do not know of the availability of
- confidentiality. While the Commission finds that its need to have the maximum possible use of information to carry out its
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responsibilities outweighs the potential benefits from routinely offering or grantings-es confidentiality, the Commission is concerned about those who may be harmed by their erroneous understanding of whether they have been given confidentiality, and about those who do not know of the availability of confidentiality.
The Commission has therefore decided to adopt a policy which requires an individual desiring confidentiality explicitly to request it, but allows an authorized NRC employee to raise the issue of confidentiality in the absence of a request if-he/she-believes-the in certain circumstancest as follows. When it becomes apparent that an individual is not providine information because of a fear that his/her identity will be disclosed, an authori:cd NRC emoloyee may raise the issue of confidentiality. Similarly, an authorized NRC employee may succest confidentiality in the absence of a recuest when it is apparent from the surroundina circumstances that the witness wishes his identity to remain confidential.
This could be the case, for instance, where a witness sets up an interview in a secretive manner. Because of the wide variety of possible circumstances here, however, the Commission cannot provide explicit cuidance in this area, but must leave implementation of this policy to the discretion of the relevant NRC employees. are-such-that-proteetien-ef-the
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individua11s-identity-may-be-warrantedy-er-if-etherwise-the desired-infermatien-will-net-be-fertheemingv1 The Commission also sees no reason to treat various groups differently in this regard. The purpose served by granting confidentiality may be more pronounced for one group than another, e.g., it may be more pronounced for employees who come to the NRC with evidence of violations unknown to the NRC than for those who only confirm what the NRC already knows. Again, Howevery the Commission does not believe it is possible to lay down any specific guidance in this area because of the almost limitless diversity of possible situationsr, and Rather7-the-Gemmissien-believes each request l
1 The-Gemmission-reeegnises-that-individuais-previding inreematien-te-the-NRE-may-have-privacy-eeneerns-even-if-they-de net-request-cenfidentialityr--The-Gemmissien-intendo-alse-te preteet-these-eeneernst When-the-NRG-makes-en-investigatten-er-inspectien-repert publier-either-in-respense-te-a-request-er-en-its-ewn initiativer-it-will-nermally-make-its-best-effertsy-eensistent with-applicable-lawr-to-delete-names-and-identifying-detaits-ef these-reperting-a-health-and-safety-eeneernt-commen-defense-and security-eeneerny-er-ether-similar-eeneern-te-the-NRev--Et-will similariy-delete-names-and-identifying-detafis-ef-these-whe-have been-identified-by-en-alleger-es-petentialiy-heving-such informatient--In-this-manner 7-these-whe-have-net-requested eenfidentiaisty-will-still-have-seme-sensure-ef-pretection against-publie-disseminatien-ef-their-ideetifiest Heweverr-this-peiteyy-whieh-dees-net-impaet-en-ether deletiens-whieh-might-be-made-under-applicable-lawy-is-net bindingr--The-agency-may-deesde-net-te-fellow-this pelicy-in-a case-where-eeunterveiling-eensiderettens-require-diselesurev-and the-peitey-else-wiki-net-apply-where-ene-seuree-ef-the informatien-is-aiready-publiety-knowne
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for confidentiality will have to be resolved on a case-by-case basis by an NRC employee authorized to grant confidentiality.
en-a-case-by-ease-basist
- 2. The manner and form in which confidentiality should be granted and disseminated within the NRC The Commission has decided to allow the Director, Office of Investigations (OI), the Director, Office of Inspector and Auditor (OIA), and the Executive Director for Operations (EDO) to designate those persons within their organizations who will be authorized to grant confidentiality. Confidentiality will be granted only when an NRC employee authorized to grant confidentiality and the individual requesting confidentiality sign a standard NRC Confidentiality Agreementr, unless it is impossible to sign the Acreement at the time the information is obtained. That The Agreement will explain the conditions to which the NRC will adhere when it grants confidentiality, as set forth in this Policy Statement. In those circumstances where it is impcssible to sign a Confidentiality Aareement at the time the information is obtained, e.c., where the information is obtained over the telephone, confidentiality may be given orally pendine signing of the Confidentiality Agreement, which must be done within a reasonable time. If confidentiality is granted orally, this must be fully documented bv the person vrantino it. If the Confidentiality Acreement is not signed within a reasonable time, the EDO,
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Director, OI, or Director, OIA, as appropriate, will determine whether the confidentiality should be continued.
Once confidentiality is granted, the individual's.name should be divulged to NRC employees only on a need-to-know basis. Each NRC employee with access to a confidential source's identicy should take all necessary steps to ensure that the identity is not further disseminated. The Director, OI, the EDO, and the Director, OIA are to assure ensure that consistent procedures are developed throughout the agency for implementing this requirement, which should prevent inadvertent disclosures. .
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i l 3. Circumstances under which identity j of a confidential source will be divulced l The Commission stresses the importance which it attaches l
to protecting the identity of a confidential source. There l
1 I are, however, four narrow circumstances where the identity of l
a confidential source may be released outside the NRC. The l
Ccamission emphasizes that in each of those cases the Commis-sion will attempt to limit disclosure to the minimum neces-sary, and that it expects such disclosure to occur only rarely.
The first category involves disclosure pursuant to a court order. There are conceivable circumstances where a licensee or other entity could obtain a court order requiring the NRC to divulge the identity of a confidential source. If that happens, the NRC will seek to keep the disclosure limited, through protective orders or otherwise, to the l minimum necessary.
With regard to the standards used by a court in deciding whether to order disclosure, it is clear that "[w]here the disclosure of an informer's identity, or of the contents of his cccmunications, is relevant and helpful to the defense of the accused, or is essential to a fair determination of a cause, the privilege must give way." Roviaro v. United l States, 353 U.S. 53, 60-61 (1957). Thus, for instance, disclosure is in all likelihood required to ensure a fair trial in cases like Roviaro, where the informant played an active and crucial role in the events underlying the potential l
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criminal or cavil liability, or the licensing action. At the other extreme, where the informant is not an active partici-pant, but rsther a mere tipster, disclosure would normally not be required. The most difficult cases involve a third cate-gory, where the defendant may benefit from disclosure, but the Government claims a compelling need to protect the informant's identity. In those types of cases, the courts will balance the importance of the informant's testimony to the defendant's case against the strength of the Government's interest in maintaining the informant's anonymity. See cenerally Suare:
- v. United States, 582 F.2d 1007 (197&).
The second category of circumstances where a confidential source's identity might be disclosed outside the NRC involves disclosure during an NRC adjudicatory proceeding. While a court can enforce an order directing that the identity of a confidentialsourcebereleased]hroughitscontemptpowers) an adjudicatory board must issue a subpoena to obtain the identity of a confidential source, and must seek enforcement of the subpoena in court. In this general sense, then, an NRC adjudicatory board does not have the authority to require that the identity of a confidential source be revealed t because it does not have contempt powers.
Ilowever, as a practical matter the Commission, as the ultimato adjudicatory authority within the NRC, can require the NRC staff to reveal a confidential source. The Commission in a separate Statement of Folicy on Investigations,
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Inspections, and Adjudicatory Proceedings has provided that any Licensing Board decision to order disclosure of the identity of a confidential source shall automatically be certified to the Ccmmission for review. 49 F.R. Pedr-Regr 36032 (September 13, 1984). Therefore, the only adjudicatory board within the NRC with the actual authority to require that the identity of a confidential source be revealed is the Commission. It is thus appropriate to provide some general guidance on when the Commission will require auch disclosure.
The proper approach for an adjudicatory board in deciding whether to order disclosure is the same as that for a court, i.e., it should follow the standards set forth in Roviaro and its progeny and balance the public interest in protecting the flow of information against a party's right to develop his claim or defense. Whether that balance requires disclosure "must depend upon the particular circumstances of each case..." Roviaro, suora, 353 U.S. at 62. Factors to be considered in making this determination include whether the information provided by the confidential source is reasonably available through alternative means, whether it relates directly to the substantive allegations at issue in the prcceeding, what the present employment position of the confidential source is, whether a party's right to present rebuttal evidence or to conduct cross-examination will be violated if they are not provided the names, and whether disclosure is necessary to complete the record. After
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considering the relevant factors, the Commission will order release only if necessary under the standards set forth in
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Roviaro and its progeny. The Commission notes in this-regard that, unlike in the case of a criminal prosecution, the NRC may not have the option of dismissing a case to avoid disclosing a confidential source, as, for instance, where the identity of the source is material and relevant to a substantial safety issue or a licencing proceeding.
The third area where the identity of a confidential source might be released is in response to a request by Congress. Section 303 of the Atomic Energy Act requires the NRC to keep the Congressional committees with jurisdiction over the NRC " fully and currently informed with respect to the activities ... of the Commission." That section also requires
"(alny Government agency (to) furnish any information requested by (Congressional) committees with appropriate jurisdiction...." The Cormission accordingly will may have to release the identity of a confidential source in response to a Congressional request. While any such request will be handled L a s w ~u w r L.%ga sw,- . <% .
on an indivit[dal case-by-case basis, tM Commission'6111 make / X its best efforts to have any such disclosure limited to the extent possible. Gemmittee-with-surisdictien-ever-the-NRG-if the-Ghetemen-ef-that-Gemmittee-requests-that-identity-in 4 writingr--Hewever7-enty-the-Gemmissien-itself-may-release-the )'
identity-ef-a-eendidential-seuree-te-Gengressy-and-it-whil-net f de-se-without-first-cenderring-with-the-Ghairman-ef-the k e
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Eemmittee-requesting-ehe-identity-te-try-te-ismit-such diseiesure-te-these-in-eentress-with-e-need-ee-knewr The final area where a confidential source may be'-
revealed is in response to a request from a fFederal or sState agency. The Commission recognizes its responsibility to assist other agencies in their functions. However, the Commission also recognizes that providing the identity'of 1
confidential sources to other agencies could adversely affect
! the flow of information to the Commission. The Commission has j decided to balance these two considerations as follows. If 4
) the other agency demonstrates that it- requires the identity in
- furtherance of its statutory responsibilities and it agrees to provide the same protections to the source's identity that the 2
NRC promised when it granted confidentiality, the NRC will make a reasonable effort to contact the source to de.termine o-.-,1 if m h mAA he/she objects to the release. If the source qdoes not object,
{]grcannotbereachedj)theECOorhisdesignee,orthe Directors of OI or CIA, are authorized to provide that identity to the other agency.
, If the source objects to the release of his/her identity, however, the EDO or his designee, or the Directors of OI or I
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OIA,maynotreleasethesource'sidentity,butshalladvigel.a g :t w k j s < s. - ' * *f" (*'
j the other agency of the source's objectiong That agency may i
i then request the Commission itself to release the identity.
i While ordinarily the source's identity will not be provided to m wtwt cAtt i
anotheragencyoverthesource'sobjection,inextraordinarf.LL)h%
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circumstances where furtherance of the public i.. erest requires release the Commission may release the identity of a l
confidential source to another agency over the objectio'ns of n AL ed I a - MJn L &J S}% .
that sourceg Even in those c,ases, however, the other agency I must agree to provide the same protections to the source's identity thst were promised by the NRC.
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- 4. Circumstances under which confidentiality may be revoked A decision to revoke a grant of confidentiality can only be made ae-the-fellowing-levelse by (1) the Commission i itself, (2) the EDO, er (3) by the Directorsz-ef OIA or 3 (4) the Director, OIA. In each case, only the office which originally granted confidentiality can revoke that grant, i
l except that the Commission may revoke a grant given by any I office.
) The Commission emphasizes, however, that a grant of confidentiality will be revoked only in the most extreme l cases. As a general matter, confidentiality will be revoked
! only where a confidential source personally takes some action so inconsistent with the grant of confidentiality that the ,
action overrides the purpose behind the confidentiality. This
! can happen, for instance, when the source reveals in a public
.I l forum the same information he gave to the NRC, or when he has j intentionally provided falso information to the NRC. Before i
j revoking confidentiality, the Commission will attempt to i notify the confidential source of its intent and provide i
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him/her an opportunity to explain why such action should not be taken.
- 5. Conclusion In sum, the Commission views grants of confidentiality as an important adjunct to the Commission's investigative and inspection programs. The Commission therefore places grer.t emphasis on protecting the identity of individuals granted confidentiality. However, the Commission recognizes that there are limited circumstances, as explained above, where the identity of a confidential source will be divulged outside the
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NRC. In those circumstances the Commission will attempt to limit disclosure to the minimum extent possible.2 Dated at Washington, D.C., this day of ,
l 1985.
U.S. Nuclear Regulatory Commission SAMUEL J. CHILK Secretary of the Comnission l
2(The following footnote has been moved from page 10:] The Commission recognizes that individuals providing information to the NRC may have privacy concerns even if they do not request confidentiality. The Commission intends also to protect those Concerns.
I When the NRC makes an investigation or inspection report public, either in response to a request or on its own l initiative, it will normally make its best efforts 7-eensistent with-applicable-lawy to delete names and identifying details of those reporting a health and safety concern, common defense and security concern, or other similar concern to the NRC. It will similarly delete names and identifying details of those who have been identified by an alleger as potentially having such information. In makino these deletions, the Commission will l on)y withhold those names and identifying detaild which it could i withhold under applicable law in respondina to a request for
! that information. In this manner, those who have not requested
- confidentiality will still have some measure of protection I against public dissemination of their identities.
I However, this policy, which does not impact on other deletions which might be made under applicable law, is not l binding. The agency may decido not to follow this policy in a l
case where countervailing considerations require disclosure, and i the policy also will not apply where the source of the information is already publicly known.
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