ML20210A929
| ML20210A929 | |
| Person / Time | |
|---|---|
| Site: | Three Mile Island  |
| Issue date: | 02/04/1987 |
| From: | Jim Hickey GENERAL PUBLIC UTILITIES CORP., SHAW, PITTMAN, POTTS & TROWBRIDGE |
| To: | Atomic Safety and Licensing Board Panel |
| Shared Package | |
| ML20210A887 | List: |
| References | |
| CIV-PEN, EA-84-137, NUDOCS 8702090042 | |
| Download: ML20210A929 (53) | |
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DOLKETED UWT February 4, 1987
~67 FEB -5 P3 25 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION CFn t .
00Ciu l e t ~,
Before the Administrative Law Judge Li Ma In the Matter of )
GPU Nuclear Corporation ) Docket No. 50-320 - CIO
) EA 84-137 (Three Mile Island Nuclear )
Station, Unit No. 2) )
GPU NUCLEAR CORPORATION'S MOTION TO COMPEL NRC STAFF TO PRODUCE DOCUMENTS AND REQUEST FOR ORAL ARGUMENT I. Introduction On September 4, 1986, GPU Nuclear Corporation (GPUN) filed its First Request for Production of Documents. Responses by the NRC Staff to GPUN's request have continued through January of this year. Discussions and negotiations between GPUN and the NRC Staff have resolved some disputes, but the NRC Staff ultimately declined to produce a number of requested documents on grounds of privilege. In addition, the NRC neither identified nor produced a number of documents that GPUN believes must exist.
GPUN submits that certain of these documents, discussed below, should be produced and moves the Presiding Officer to issue an order compelling their production. The documents that GPUN is seeking are those containing complete accounts of 8702090042 870204 PDR ADOCK 050003:0 Q PDR-
relevant witness interviews conducted by NRC and Department of Labor (DOL) investigators, evidence gathered by such investiga-tors, and factual findings and conclusions relevant to the credi-bility of the NRC's designated witnesses. These documents are necessary to GPUN's defense. Fundamental notions of fairness dictate that GPUN should be afforded equal access to the facts.1/
Because of the importance of these issues, GPUN requests that the Presiding Officer hear oral argument on this motion.
1/ The NRC Staff's responses to GPUN's document requests are contained in the following: NRC Staff Response to GPU Nuclear Corporation's First Set of Interrogatories and NRC Staff Partial Response to GPUN's First Request for Production of Documents (Sept. 23, 1986) (hereinafter "NRC Staff Response"); NRC Staff Supplemental Response to GPU Nuclear Corporation's First Set of Interrogatories and NRC Staff Supplemental Response to GPUN's First Request for Production of Documents (Oct. 9, 1986) (herein-after "NRC Staff First Supplemental Response"); Letter from G. Johnson to J. Patrick Hickey (Oct. 28, 1986); Letter from G. Johnson to J. Patrick Hickey (Oct. 29, 1986); Letter from G. Johnson to J. Patrick Hickey (Nov. 6, 1986); Letter from G. Johnson to J. Patrick Hickey (Nov. 13, 1986); NRC Staff Second Supplemental Response to GPU Nuclear Corporation's First Set of 1 Interrogatories and Request for Production of Documents (Dec. 15, 1986) (hereinafter "NRC Staff Second Supplemental Response"); NRC Staff Third Supplemental Response to GPU Nuclear Corporation's
- First Set of Interrogatories and Request for Production of Docu-ments (Jan. 5, 1987) (hereinafter "NRC Staff Third Supplemental Response"); and NRC Staff Fourth Supplemental Response to GPU i Nuclear Corporation's First Set of Interrogatories and Request for Production of Documents (Jan. 9, 1987) (hereinafter "NRC Staff's Fourth Supplemental Response").
II. Factual Background This enforcement proceeding involves allegations made by Richard D. Parks, then a Bechtel employee working at TMI-2, who
! claimed in 1983 that he was harassed for having raised issues concerning the TMI-2 polar crane. Mr. Parks' allegations were made public in a fifty-six page statement that he and his repre-sentative, the Government Accountability Project (GAP), released at a press conference on March 23, 1983. Parks' charges fell generally into four groups: (1) allegations of technical and procedural problems with the polar crane; (2) allegations of ha-rassment of himself and others (including Lawrence P. King);2/
(3) allegations that George Kunder was the " mystery man" who had purportedly shut off high pressure injection pumps on.the morning of the TMI-2 accident; and (4) allegations of NRC misconduct. On the same day, Mr. Parks instituted a Department of Labor (DOL) action against Bechtel based on his allegations of harassment.3/
2/ Lawrence P. King was the TMI-2 Site Operations Director who was dismissed in March 1983 for conflict of interest due to his involvement with Quiltec, Inc. Mr King claimed his dismissal was retaliatory, but both the Department of Labor and the NRC re-jected his claim. See NUREG-0680, Supp. 5, at 10-19 to 10-20; May 18, 1984 OI Report, Exhibit 85. The Staff has advised GPUN's counsel that it intends to call Mr. King as a witness in this proceding.
l 3/ In his DOL complaint, Parks complained that he was discrimi-j nated against (1) by being relieved of his duties as alternate Startup and Test Supervisor (on Feb. 18, 1983], (2) by being in-terrogated on March 14, 1983 by Bechtel concerning his in-(Continued Next Page)
Two days later, on March 25, 1983 the NRC's Office of Inves-tigation (OI) commenced an investigation of Parks' allegations,4/
except for his claims of NRC misconduct, which were referred to the NRC's Office of Inspector and Auditor (OIA). In addition, a DOL Compliance Officer commenced an investigation on Parks' DOL complaint. These investigations were conducted in a confidential manner, and the investigators' activities and findings were not publicly disclosed. GPUN commenced its own investigation, which was conducted by Mr. Edwin Stier, a former Assistant Attorney General and Director of the New Jersey Division of Criminal Jus-tice. As discussed below, Parks was interviewed on numerous oc-casions by the Government investigators, but refused to submit to a full on-the-record interview by Mr. Stier. See Stier Report, infra, Vol. I at 6-7.
On May 12, 1983, the DOL Compliance Officer made his prelim-inary determination that " based on our investigation, the weight
- (Continued) volvement with Quiltec, Inc., and (3) by being replaced on March 17, 1983 as primary Site Operations representative on the i
Test Working Group (TWG) for the polar crane project. In a sup-plemental complaint filed on April 22, 1983, Parks added a fourth charge -- that he was discriminated against by being placed on leave of absence with pay on March 24, 1983. These four events are the acts that the NRC Staff claims constitute a regulatory violation in this enforcement proceeding.
4/ NRC Staff Response at 47.
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i of evidence to date" indicated that Parks had been harassed.
Bechtel requested the de novo hearing provided by the statute to review this conclusion, but the case was settled shortly thereaf-ter when the parties agreed to the transfer of Parks to another, non-nuclear site. Parks' complaint was dismissed with prejudice, and the Compliance Officer's Report was not released.
On September 1, 1983, OI issued its Investigative Report 83-002, entitled "Three Mile Island Nuclear Generating Station, Unit 2 -- Allegations Regarding Safety Related Modifications, Quality Assurance Procedures and Use of Polar Crane," which con-cluded that procedural violations had occurred. The OI Report contained a list of about twenty persons who bad been inter-viewed, brief interview summaries, and signed statements by some witnesses, but no transcripts of the interviews were provided.
The Report indicated that " additional information," not contained in the Report, had been obtained and was "being evaluated," and advised that OI's investigation of Parks' harassment and mystery man allegations was still open. September 1, 1983 OI Report, i Summary at 4; Id., section C-3 at 2, C-33.
I i On September 7, 1983, OIA issued its Investigative Report entitled " Parks' Allegations Regarding Three Mile Island, Unit 2 (TMI-2)." OIA concluded that althouch Parks had alleged "numer-ous instances of reported extensive NRC employee impropriety /
misconduct," OIA's investigation had "not identified any a
information, or otherwise obtained any evidence, indicative of possible NRC misconduct or impropriety." September 7, 1983 OIA Report, Summary at 2-3.
On November 16, 1983, Edwin Stier issued his Report, enti-tied "TMI-2 Report -- Management and. Safety Allegations," which addressed, inter alia, Parks' polar crane and mystery man allega-tions. Mr. Stier concluded that "the evidence gathered in the course of this investigation clearly demonstrates that the alle-gations, in their broadest sense, are unfounded." Stier Report, Vol. I at 13. Mr. Stier's Report was based on interviews of ap-proximately 80 witnesses and review of more than 1000 documents.
The report, interview transcripts, several hundred exhibits, all documents gathered during the investigation and all other in-vestigative material (including notes and memoranda of witness interviews) were made available to the NRC. Stier Report, Vol. I at 4-6, 10; Letter from W. Kuhns to Chairman Palladino (Nov. 23, 1983).
On May 18, 1984, OI issued a second Report entitled "Three Mile Island Nuclear Generating Station, Unit 2, Allegations Regarding Discriminatory Acts for Raising Safety Concerns on Safety Related Modifications, Quality Assurance Procedures and I
l Use of Polar Crane."5/ A heavily redacted version of the DOL l
l 5/ This report also dealt with the harassment allegations made i
by Lawrence P. King and Edwin H. Gischel.
O Compliance Officer's Report on Parks' harassment allegations, with all but two witness statements eliminated, was provided as exhibit 102 to the report.6/ With respect to Parks' harassment allegation, the May 18, 1984 OI Report stated that the DOL Report had been reviewed by OI and was being submitted for NRC regula-
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tory and enforcement consideration. No conclusion was offered, nor did the OI Report disclose any information concerning any OI investigation of the matter. In a briefing before the Commission on May 23, 1984, the Director of OI told the Commission that OI had " looked at their (DOL's] investigation and we felt it met our regulatory needs." Hearing Transcript, May 23, 1984 at p. 27.
In July, 1984, the NRC issued NUREG-0680, Supp. No. 5, "TMI-l Restart: An Evaluation of the Licensee's Management Integ-rity As It Affects Restart of Three Mile Island Nuclear Station Unit 1 Docket 50-289." With regard to Parks' claims that he was harassed, NUREG-0680 Supp. 5 relied on the DOL Report, but contained additional findings based on the NRC's "own review of the matter." NUREG-0680, Supp. 5, at page 10-18. The report did not indicate whether this " review" was simply a reading of the DOL Report or whether the NRC had interviewed witnesses or gathered evidence on its own.
6/ The two provided statements reflected interviews of two Bechtel employees (Messrs. Kanga and Freemerman) accompanied by Bechtel counsel.
In October, 1984, Bechtel issued a Report Regarding the Al-legations of Richard D. Parks. Bechtel's Report reviewed the ev-idence compiled primarily by Mr. Stier after the DOL investiga-tion and concluded that Parks had not been harassed. Bechtel attached to the report the interview transcripts and statements upon which it relied.
On August 12, 1985, the NRC Staff issued a Notice of Viola-tion relating to Parks' claims that he was harassed. The NOV charged GPUN with a violation of 10 C.F.R. $ 50.7 because Parks (1) was relieved of his duties as alternate Startup and Test Supervisor at TMI-2; (2) was allegedly " subjected to improper and intimidating interrogation by his management;" (3) was removed as the primary Site Operations Department representative for the Test Working Group; and (4) was placed on leave of absence with pay following his press conference with GAP. The NOV stated that in addition to the DOL investigation of Parks' complaint, "OI also investigated Mr. Parks' allegations of discrimination."
- At the outset, GPUN sought to discover the basis for the NRC's action. On September 9, 1985, GPUN requested from the Di-i rector of the Office of Inspection and Enforcement a complete copy of the DOL Report to permit GPUN to respond adequately to the NOV. The Director, however, denied GPUN's request and pro-vided only a redacted version which the Director noted "does not contain substantially more than the redacted version that you O
previously received." Letter from J. Taylor to GPUN (Sept. 20, 1985). It was not until January 9 of this year that GPUN obtained a more complete copy, but even this most recent version lacks exhibits and has a witness interview deleted.7/
.On October 21, 1986, GPUN responded to the Notice of Viola-tion and denied the allegations. GPUN stated that Mr. Parks' al-legations had been thoroughly investigated by Mr. Stier and by Bechtel, and that on the basis of the results of these investiga-tions GPUN believes the harassment allegations to be untrue. In particular, while the basic events had occurred (though not as characterized by Mr. Parks), the actions of GPUN and Bechtel employees were properly motivated and were not the result of re-taliatory animus. GPUN further stated its understanding that the Notice of Violation was based on the DOL Compliance Officer's preliminary investigation, which had not been fully disclosed and which predated a substantial body of contrary evidence.
On March 4, 1986, the NRC rejected GPUN's denial and issued an Order Imposing Civil Penalty. This proceeding followed.
l 7/ The deletions in the four different versions of the DOL Report on Parks' allegations that have been released to date have been notably inconsistent. There are in fact statements deleted from the most recently released version that appear in prior ver-sions.
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During discovery, GPUN has sought to learn the facts and ev-idence accumulated during the DOL and NRC investigations. GPUN
, had made the results of the Stier investigation and all backup material fully available to the NRC. In contrast, the NRC and DOL investigations were conducted essentially in secret, and they continue to be veiled in secrecy.
GPUN believes that it is entitled to know whom the NRC in-terviewed, what testimony was received, and what evidence was gathered by the NRC. GPUN is also entitled to disclosure of fac-l tual information and NRC findings that may constitute or lead to admissible evidence, or affect the credibility of potential wit-nesses. The rules of discovery and principles of fairness, dis-cussed below, dictate that such information be produced.
- III. Standards Governing Discovery ,
f A. The Policy of Full Disclosure Y
l Pretrial discovery enables the parties to ascertain the l
f facts in complex litigation, refine the issues, and prepare ade-i quately for a more expeditious hearing or trial. Pennsylvania Power & Light Co. (Susquehanna Steam Electric Station, Units 1 l and 2), ALAB-613, 12 N.R.C. 317, 322 (1980), quoting Pacific Gas
& Electric Co. (Stanislaus Nuclear Project, Unit 1), LBP-78-20, 7 N.R.C. 1038, 1040 (1978). An important reason for discovery is l
to eliminate the element of surprise in litigation, and thereby i
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j increase the likelihood that factual issues will be accurately and fairly resolved at the hearing based on full consideration of the evidence. The process also helps shorten the actual hearing, l with its attendant expense and inconvenience, and increases the i ability of parties to develop a complete record. Susquehanna, 2
, suprk, ALAB-613, 12 N.R.C. at 332. In accordance with these principles, the discovery rules are liberally construed.
l Commonwealth Edison Co. (Zion Station, Units 1 and 2), ALAB-196, l 7 A.E.C. 457, 462 (1974).
I Full discovery takes on even greater importance in an en-i forcement proceeding, especially one like the present where the NRC is leveling and prosecuting charges of serious misconduct, going beyond technical violations of regulatory requirements.
Here, in addition to GPUN's substantial interest in the outcome because of the proposed civil penalty, an even more significant interest may be found in the reputation of the licensee and the individuals involved. We believe that in light of the substan-tial nature of these interests, the fullest disclosure by the l government of relevant information in its possession is appro-2 priate, and where such disclosure is not forthcoming, the Presid-
! ing Officer should compel it.
In a criminal proceeding, due process forbids the suppres-sion of material evidence favorable to an accused. Brady v.
Maryland, 373 U.S. 83, 87 (1963) This fundamental principle l
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obligates the prosecution to reveal not only evidence relevant to the substantive issues, but also such evidence in its possession as would be material to impeaching a prosecution witness. United States v. Esposito, 523 F.2d 242, 248 (7th Cir. 1975), cert.
denied, 425 U.S. 916 (1976). "(I]t is unconscionable to allow
[the Government] to undertake prosecution and then invoke its governmental privileges to deprive the accused of anything which might be material to its defense." Jencks v. United States, 353 U.S. 657, 671 (1957).
These principles extend to administrative proceedings. In
! Drukker Communications, Inc. v. NLRB, 700 F.2d 727 (D.C. Cir.
1983), the Court remanded an NLRB decision against a company ,
charged with unfair labor practices because the NLRB had denied the company's motion to subpoena an NLRB employee who possessed information important to the case. Judge (now Justice) Scalia wrote for the Court that "[ijt is repugnant to notions of fair-ness for the government to seek sanctions for alleged wrongdoing while withholding from the proceeding evidence that would demon-strate innocence." Id. at 733, citing Brady v. Maryland, supra.
See also Ralpho v. Bell, 569 F.2d 607, 628-29 (D.C. Cir. 1977) l (An opportunity to meet and rebut evidence utilized by an admin-
! istrative agency is a primary requisite of due process, and the 4 refusal to allow inspection of evidence crucial to the adminis-i trative decision is constitutionally impermissible); NAACP v.
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O Wilmington Medical Center, Inc., 453 F. Supp. 330', 342 (D. Del.
1978) (A party is entitled to have knowledge of the facts upon which an administrative decision is based); Smith v. Schlesinger, 513 F.2d 462, 475-477 (D.C. Cir. 1974).
B. . Discovery Against the NRC Staff Discovery of NRC records and documents is governed by_the Commission's Rules of Practice at 10 C.F.R. 5 2.744.g/ Under this provision, NRC documents not already reasonably obtainable from another source must be produced 1) if they are relevant and not exempt from production under 10 C.F.R. 5 2.790; or 2) even when exempt under 10 C.F.R. 5 2.790, if disclosure is necessary to a proper decision in the proceeding. 10 C.F.R. 5 2.744(d);
Consumers Power Co. (Palisades Nuclear Power Facility), ALJ-80-1, 12 N.R.C. 117, 119 (1980). If the NRC Staff objects to the pro-duction of documents, the requesting party may under 10 C.F.R. 5 2.744(c) apply to the Presiding Officer to compel production.
Upon request, the documents must be provided to the Presiding Of-ficer for his in camera inspection to determine whether the docu-
)
l ments should be produced.
I g/ There is some uncertainty in the rules. 10 C.F.R. 5 2.744 I
by its terms applies to " initial licensing proceeding (s]." 10 C.F.R. 5 2.741, however, provides (without qualifying the type of l proceeding) that discovery of NRC Staff documents and records is subject to the provisions of sections 2.744 and 2.790.
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1 Section 2.790 is the NRC's codification of the Freedom of Information Act (FOIA) exemptions. The FOIA exemptions in 5 U.S.C. $ 552(b)(1)-(9) correspond to the disclosure exemptions in section 2.790(a)(1)-(9), but neither establish new privileges against discovery. See Palisades, supra, ALJ-80-1, 12 N.R.O. at i
121 (NRC Staff conceding that FOIA does not establish new govern-ment privileges against discovery).
Three section 2.790 exemptions have been claimed by the NRC Staff as grounds for not producing the documents subject to this i motion to compel. The exemptions are section 2.790(a)(5), which permits the withholding of " interagency or intra-agency memoran-dums or letters which would not be available by law to a party i other than an agency in litigation with the Commission" (herein-after " exemption 5"); section 2.790(a)(6), which permits with-holding of " personnel and medical files and similar files, the disclosure of which would constitute a clearly unwarranted inva-sion of personal privacy" (hereinafter " exemption 6"); and sec-tion 2.790(a)(7)(v), which permits withholding of " investigatory records compiled for law enforcement purposes, but only to the extent that the production of such records would . . . disclose investigative techniques and procedures" (hereinafter "exemp-tion 7(v)").9/
1 9/ 10 C.F.R. $ 2.790(a)(7)(v) codifies 5 U.S.C. $ 552(b)(7)(E).
In Federal case law, this exemption is often referred to as exemption 7(e).
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If a document is relevant and not covered by an exemption, it must be produced. Further, the Commission's rules explicitly provide that even if a document is covered by an exemption, it must be produced if necessary to a proper decision in the matter.
10 C F.R. $ 2.744(d). Thus, in NRC proceedings, the applicabili-ty of an exemption must be weighed against a litigant's need, and is equivalent to traditional privilege in civil proceedings.
Palisades, supra, ALJ-80-1, 12 N.R.C. at 119-20.
- 1. Exemption 5 Exemption 5 encompasses those documents and only those docu-ments normally privileged in the civil discovery context. NLRB
- v. Sears Roebuck Co., 421 U.S. 132, 149 (1975). The pertinent privilege here is the " executive privilege" protecting confiden-tial intra-agency advisory opinions, disclosure of which would be injurious to the consultative functions of the government. Id.
See Palisades, supra, ALJ-80-1, 12 N.R.C. at 122-23.
I To come within the executive privilege and hence within ex-emption 5, the document must be pre-decisional. "The privilege protects only communications between subordinates and superiors l
that are actually antecedent to the adoption of an agency poli-cy." Jordan v. Department of Justice, 591 F.2d 753, 774 (D.C.
l Cir. 1978) (emphasis in original). Further, the document must be l
a direct part of the " deliberative" process in that it makes l !
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recommendations or expresses opinions on legal or policy matters.
- A document is not exempt simply because it is predecisional; it must also be part of the "give-and-take" of the agency delibera-tive process, by which the agency's decision is made. Vaughn v.
Rosen, 523 F.2d 1136, 1143-44 (D.C. Cir. 1975); Jordan, supra, 591 F.2d at 774. Finally, for executive privilege to lie, the disclosure of the document must be injurious to the consultative functions of the government. Documents that are protected by the privilege are those which inaccurately reflect or prematurely disclose the views of the agency, suggesting as agency position that which is as yet only a personal opinion. "To test whether disclosure of a document is likely to adversely affect the pur-poses of the privilege, courte ask themselves whether the docu-ment is so candid or personal in nature that public disclosure is likely in the future to stifle honest and frank communication within the agency." Coastal States Gas Corp. v. Department of Energy, 617 F.2d 854, 866 (D.C. Cir. 1980).
The executive privilege does not protect factual material unless it is inextricably intertwined with privileged communica-tions or the disclosure of the factual material would reveal the agency's decision-making process. Long Island Lighting Co.
l (Shoreham Nuclear Power Statien, Unit 1), ALAB-773, 19 N.R.C.
l 1333, 1342 (1984). In this regard, it does not cover purely fac-tual or investigative reports. Bristol-Meyers Co. v. FTC, 424
(
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F.2d 935, 939 (D.C. Cir. 1970) (reversing and remanding for fur-ther consideration lower court decision that agency investigative
.ccuments were inter alia exempt under the interagency memorandum provision); Soucie v. David, 448 F.2d 1067, 1077 (D.C. Cir. 1971)
(reversing and remanding decision that had permitted the with-holding of a scientific investigative report); New England Apple Council, Inc. v. Donovan, 560 F. Supp. 231, 234 (D. Mass. 1983) i (DOL investigative reports ordered produced for in camera inspec-tion) rev'd on other grounris, 725 F.2d 139 (1st Cir. 1984) (re-versed under exemptions 7(C) and 7(D) to protect the identities of law enforcement personnel); M.A. Schapiro & Co. v. SEC, 339 F. Supp. 467, 470 (D.D.C. 1972) (SEC study and investigative ma-terial ordered produced). Interview notes and affidavits taken by an investigator are likewise not exempt. Poss v. NLRB, 565 F.2d 654, 659 (10th Cir. 1977) (lower court's order requiring disclosure of investigator's notes of interviews affirmed).
The discoverability of the contents of investigative reports extends to the investigative findings and conclusions.
Both the facts revealed by an investigator and the inferences drawn from the facts may influence the agency's decisions, but this does not insulate either from disclo-( sure. . . . Inferences . . . drawn from facts revealed by the investigation, though labeled as opinions or conclusions, are not exempt under the guise of deliberative or policy making material.
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Moore McCormack Lines, Inc. v. ITO Corp. of Baltimore, 508 F.2d 945, 948-949 (4th Cir. 1974). Accord, New England Apple Council, supra, 560 F. Supp. at 234.
Executive privilege does not apply to post-decisional commu-nications. Shoreham, supra, ALAB-773, 19 N.B.C. at 1342. Post-decisional memoranda setting forth the reasons for an agency de-cision already made are not exempt. Renegotiation Board v.
Grumman Aircraft Engineering Corp., 421 U.S. 168, 184 (1975);
Sears, supra, 421 U.S. at 151-52. Memoranda constituting the disposition of a charge represent the " law" of an agency and must be disclosed. Sears, supra, 421 U.S. at 155-58. In the same vein, exemption 5 does not protect documents incorporated by ref-erence or adopted into a final decision. Sears, supra, 421 U.S.
at 161; American Majl Line, Ltd. v. Gulick, 411 F.2d 696 (D.C.
Cir. 1969) (where at, agency bases action on a document, the docu-ment is not exempt.)
If the NRC Staff claims executive privilege for a document, it bears the burden of demonstrating that the privilege is prop-erly invoked. Shoreham, supra, ALAB-773 at 1341. Even if it has been properly invoked, the privilege is not absolute. If a liti-i
- gant demonstrates that its need for the document outweighs the asserted interest in confidentiality, the document must be pro-l duced. Id.
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- 2. Exemption 6 For exemption 6 to apply, 1) the information sought must be found in " personnel, medical, or similar files", and 2) the re-lease of the information must constitute a " clearly unwarranted invasion of personal privacy." Arieff v. Department of the Navy, 712 F.2d 1462, 1466 (D.C. Cir. 1983); Washington Post Co. v.
Dep't of Health, 690 F.2d 252, 260 (D.C. Cir. 1982).
If disclosure of the information sought would not constitute an " invasion of privacy," exemption 6 does not apply. See Washington Post Co., supra, 690 F.2d at 261. Further, even if the disclosure would create an invasion of privacy, exemption 6 does not apply unless the invasion is " clearly unwarranted." The determination wnether disclosure is clearly unwarranted requires a balancing of the public interest in disclosure against the pri-vacy interests of the individual. Id. at 260. In performing this balancing, an agency must keep in mind Congress' " dominant objective" to provide full disclosure of agency records. Ibid.
l l In addition to Congress' general purpose to make disclosure the dominant practice and nondisclosure the exception, exemption 6's requirement that disclosure be " clearly unwarranted" instructs courts to " tilt the balance (of disclosure interests against pri-vacy interests] in favor of disclosure." Id. at 261, citing Ditlow v. Shultz, 517 F.2d 166, 169 (D.C. Cir. 1975); Getman v.
l NLRB, 450 F.2d 670, 674 (D.C. Cir. 1971).
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- 3. Exemption 7(v)
In order to prove that a document is entitled to protection under exemption 7(v), the NRC Staff must show that the material is (1) an investigative record, (2) compiled for law enforcement purposes, Pratt v. Webster, 673 F.2d 408, 413 (D.C. Cir. 1982),
(3) which would disclose investigative techniques not already known. Ferri v. Bell, 645 F.2d 1213, 1223, modified, 671 F.2d 769 (3d Cir. 1981). The theory underlying this exemption is that disclosure of such information could complicate the task of in-vestigative agencies because potential violators of the law could familiarize themselves with the investigative methods used by law enforcement agencies and use this information to frustrate <inves-tigations. Thus, the exemption applies to information regarding obscure or secret techniques. Id. at 1223-24. The exemption is narrow and protects only material whose release would enable per-sons to violate the law and escape detection. Hawkes v. IRS, 467 F.2d 787, 795 (6th Cir. 1972).10/
l 10/ 5 U.S.C. 6 552(b)(7)(E), which 10 C.F.R. 5 2.790(a)(7)(v) codifies, was recently amended to limit its application to in-vestigative files whose " disclosure could reasonably be expected to risk circumvention of the law." Pub. L.99-570, 9 1802, 100 l
Stat. (1986), reprinted in 10A U.S. Code Cong. & Ad. News
- (Dec. 1986).
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IV. Argument GPUN's interest in its reputation and the reputation of its employees invokes certain procedural rights. As a simple and fundamental matter of fairness, GPUN should be afforded access to information relevant to its defense.
The importance of discovery in this case is underscored by the nature of the facts at issue. The principle issues in this case are not whether or not events occurred. While GPUN dis-agrees with Parks' characterization of the events, the real issues are of motive, which are far more subtle and difficult.
Discerning intent is largely a matter of drawing inferences. An apparently minor remark, or the omission of a statement where it might be expected, may be significant evidence of a state of mind. Further, one witness may infer a discriminatory purpose for an action which another witness knows to be legitimate. Bias or predisposition of witnesses (not necessarily deliberate --
perhaps unconscious) may color the perception of events, or the recounting of those events.
For this reason, short summaries of testimony and terse fac-tual assertions in investigative reports are inadequate. In the drafting and editing of such statements, subtleties are lost.
Complete accounts of pertinent interviews, including investiga-tor's records which may reveal the demeanor of witnesses and the
inferences the investigator drew from the testimony, are neces-sary.
There is a further reason why full discovery is particularly approprie.te here. This, more than many other proceedings, is a case.where witness credibility is paramount. The NRC's main wit-nesses are apparently Richard Parks and Lawrence King. Both have raised claims that investigations by the NRC itself, the DOL (in King's case), Stier and Bechtel have shown to be ill-founded.
The full product of these investigations is critical to GPUN's defense.11/ While there may be some yet-undisclosed basis for the NRC to accept Parks' harassment claims while rejecting his allegations against the NRC and many of his other allegations, there is no justification for refusing to disclose all the data relevant to the Presiding Officer's task of deciding whether the enforcement action is warranted.
Because of its interest in its reputation and its sincere belief that it acted properly, GPUN has felt compelled, at ex-pense considerably exceeding the proposed penalty, to contest Parks' allegations. We believe this case demands full discovery and liberality in providing the defense with equal access to 11/ GPUN's Third Request for Production of Documents (January 27, 1987) has requested investigative material relating to Mr. King's allegations. This request is still pending and is not the subject of this motion.
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(
relevant information. The interests at stake are too important and the nature of the issues too difficult and far-reaching to run the risk that the ultimate decision may be based on anything less than the fullest possible record.
The NRC Staff's responses to GPUN's document requests have not provided GPUN with access to needed information. With rela-tively few exceptions, the NRC Staff has claimed privilege with respect to any NRC-authored document not in final form or already publicly available. The claims of privilege are asserted broad-ly, and no basis to assess such claims has been provided. The record of discovery to date suggests that privilege is being in-terpreted and claimed inconsistently.
For example, in the NFC Staff's Supplemental Response at 2, the NRC Staff provided GPUN with and based withholding of docu-ments on an August 21, 1986 letter from an "OI FOIA specialist" who had apparently been assigned the task of "re-reviewing" the May 18, 1984 OI Report for " disclosure determination." The let-ter indicated that some 43 exhibits to the May 18, 1984 OI Report on Parks' allegations were in whole or part exempt from disclo-sure on grounds that their release would cause a " clearly unwarranted invasion of privacy."12/ In contrast to this current
, 12/ Many of the documents purportedly exempt from disclosure were GPUN records and correspondence.
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review, the NRC found all the exhibits suitable for public re-lease two years ago and released them. See Docket No. 50-320, Memorandum from W. Clements to Restart Parties (June 11, 1984).
Similarly, the NRC has identified and claimed executive privilege for a number of other documents that were previously publicly released. See discussion at pages 45-46, 48, 50, infra.13/ Such responses suggest that claims of privilege have been made with little attempt to evaluate the documents to deter-mine whether nondisclosure is really necessary to protect signif-icant government interests, and with equally little consideration of GPUN's rights and need.
In addition, the NRC Staff has generally not provided notes and other contemporaneous records of interviews on which its in-vestigative reports are based, including full accounts of the in-terviews of Parks. GPUN is entitled to all records of relevant 4
interviews, including notes, transcripts, and memoranda, and should not be forced to instead rely on the terse, manicured in-terview summaries attached to investigative reports. Interview 13/ Yet another example is provided by the NRC's Staff initial claim that a May 6, 1986 letter from B. Zuras (Parks' attorney) to Counsel for the NRC Staff was privileged under the attorney work product doctrine. The NRC Staff subsequently agreed to pro-vide the letter to GPUN. The letter stated, " Pursuant to your request, enclosed is a copy of the First Amended Complaint for Damages" [ filed in a civil action in California by Parks against Bechtel). Attachment to Letter from G. Johnson to J. Patrick Hickey (Nov. 6, 1986).
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summaries in the investigative reports may omit details that were not material to the particular investigation but are highly rele-vant to this enforcement proceeding.14/ Such summaries may also be colored by the conclusions or interpretations of the investi-gators who prepared them.
Accordingly, GPUN seeks the production of the following documents:
A. Complete Accounts of NRC Interviews of Parks GPUN's Document Requests 19 through 22 called for the pro-duction of all documents evidencing, recording, transcribing, summarizing, referring or relating to oral or written communica-tions between Parks and any NRC representative during the period March 24, 1983 to the present regarding Parks' allegations of ha-rassment or engineering, programmatic, or other deficiencies at TMI. Such documents are clearly relevant. The Staff's case is
! based on Parks' claims that he raised technical issues and was 14/ The interview summaries are not extensive and clearly do not contain all the information imparted during interviews. Edwin Gischel's interview summary presents a prime example. During the December 1, 1986 deposition of J. Chwastyk, the NRC Staff pro-duced (see transcript pp. 119-27 and exhibit 17 thereto) a set of notes of Mr. Gischel relating to a TMI meeting on March 23, 1983 in which Mr. Parks was discussed. Documents referring to this meeting had been cited by the Staff (see NRC Staff Response at
- 26) as a basis for the claim of retaliation by Parks' suspension with pay. While these notes had apparently been provided by Mr.
Gischel to OI, they were not mentioned in the interview summary I nor attached as an exhibit, and had not been previously produced.
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thereafter harassed. Parks' statements as described in Document Requests 19 and 21 are relevant as to whether Parks in fact raised any significant technical issue, whether Parks was dis-criminated against, and whether there was the necessary nexus be-tween the raising of technical issues and the conduct alleged to be discriminatory.
The NRC Staff has not objected to these document requests, but has not produced documents -- in particular, notes and com-plete accounts of interviews with Parks -- that most surely exist or have existed. Since Parks would not cooperate with GPUN's in-vestigator, these documents are the only contemporaneous record of his prior testimony and are therefore critical to GPUN's de-fense. The NRC Staff has identified the occasions when Parks met with the NRC, and GPUN seeks all and complete accounts of these meetings.15/
Parks met with OI investigators J. Vorse and R. Meeks on April 27, 1983 in Bethesda and on May 2 and May 3, 1983 in l Harrisburg. NRC Staff Response at 39. The NRC Staff states that the "results of these communications are contained in a sworn 15/ GPUN also seeks the opportunity to inquire into the exis-tence of these and other documents and the circumstances sur-rounding their preservation or destruction. GPUN therefore also seeks, in the accompanying motion for issuance of subpoenas, to depose Ronald A. Meeks, an OI investigator. The discussion above of OI meetings with Parks and of references to accounts of such meetings further supports the need to depose Meeks.
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statement, dated June 6, 1983" -- a five-page statement prepared by OI for Parks signature and included in the September 1, 1983 OI Report as item C-6. The Staff further references a two-page OI summary of the meetings, item D-3 to the September 1, 1983 Report.
This response is incomplete. The NRC Staff has not produced the notes of the investigators conducting these interviews. It is inconceivable that notes were not taken. Nor is the two-page interview summary referenced by the NRC Staff an adequate substi-tute. OI Director Ben Hayes, in a Commission briefing on June 6, 1983, stated: "We have interviewed Parks extensively in the of-fices of the OI one day for over ten hours and followed up subse-quent to that with additional interviews." Commission Meeting,
" Discussion of Pending Investigations" (June 6, 1983) at 38.
GPUN is entitled to have the full account of these interviews, and the NRC Staff should be compelled to produce the notes. If such notes have been destroyed, GPUN should be permitted to pur-sue in discovery the circumstances under which such evidence was destroyed.
! GPUN's document requests above also included any other type of record of these meetings. If the meetings were taped or tran-l
! scribed, the tape and/or transcript must be produced. Mr. Hayes later in the Briefing cited above, referred to " memorandums that we prepared after that (Parks'] interview." Commission Meeting, i
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supra, tr. at 41. Such memoranda are also encompassed by the document request and must be produced.
Further, the NRC Staff produced during discoveryl@/ a record of a May 5, 1983 telephone conversation between R. Meeks of OI and T. Devine of GAP concerning referring information to the De-partment of Labor "viz. NRC interview with Parks." This document indicates Devine's agreement that " Parks' entire statement to NRC" could be referred to the Department of Labor. Since Parks' affidavit was already public and had been attached to Parks' DOL complaint (see May 18, 1984 OI Report, Exhibit 103), and since Parks' June 6, 1983 statement had not yet been prepared, this log must refer to some complete OI account of its interviews with Parks. This statement must be produced.
On June 23, 1983, Parks met with P. McKenna of OIA. NRC Re-sponse at 40. Again, the NRC has produced only an interview sum-mary (Attachment E to the Sept. 7, 1983 OIA Report.) GPUN is en-titled to have the full record of this meeting. The NRC Staff should be compelled to produce the notes that were taken during this interview, and if the interview was taped or transcribed, the NRC Staff should be compelled to produce such tapes or tran-scripts.
1s/ See Letter from G. Johnson to P. Hickey (Oct. 28, 1986),
Attachment 4.
After Parks' meeting with McKenna on June 23, 1983, Parks ag.?n met with R. Meeks of OI. See Sept. 7, 1983 OIA Report, attachment E (fifth unnumbered page). No record of this meeting has been produced.17/ Accordingly, the NRC Staff should be com-pelled to produce all notes, recording, and any other record or summary of this meeting.
B. Complete Accounts of Other Relevant Interviews GPUN's Document Request 37 called for the production of all witness statements (excluding statements submitted to NRC by GPUN, Bechtel, or Stier) referring or relating to Parks' allega-tions that he was discriminated against, and to Parks' allega-tions of engineering, programmatic or other deficiencies at TMI.
Since Parks' claims that he was harassed for raising technical and procedural issues are the bases for NRC Staff's bringing this enforcement action, such statements are relevant.
On January 9, 1987, the NRC Staff produced a more complete copy of the Department of Labor report on Parks' allegations than the copies that had previously been made available to GPUN. The copy provided on January 9, however, did not include the state-i ment of one of the witnesses interviewed by the Department of 17/ In a letter dated November 6, 1986, Counsel for the NRC Staff stated "although our review of OI records is not yet com-pleted, no record of any statement to OI on or about that date has been found."
Labor Compliance Officer, nor all the attachments referenced in the report, and portions of the report were redacted, allegedly to conceal the witness' identity. See Letter from G. Coleman, DOL, to M. Young, Counsel for NRC Staff (Jan. 9, 1987). See also NRC Staff Response at 6. There is, however, no confidentiality to protect, since the NRC Staff publicly revealed the witness' identity more than two years ago. The witness is Carl Hrbac.
See NUREG-0680, Supp. 5, at 10-3. Both NUREG-0680 and the DOL report reveal some of what Mr. Hrbac purportedly told the Compli-ance Officer. See id. Compare DOL Report at 3, 6, 12.18/ If a confidentiality privilege ever existed, it has been waived. GPUN is entitled to Mr. Hrbac's statement and an unredacted version of the DOL Report, including all attachments and exhibits.
With respect to GPUN's Document Request 37 discussed above, the NRC Staff also identified but refused to produce the follow-ing relevant documents:
(1) a handwritten draft entitled " Report of Interview with B. Kanga on 4-29-83" (undated) (NRC Staff Second Supplemental Response at 7);
i 18/ According to the DOL Report and NUREG-0680, Carl Hrbac's l statement to the Department of Labor Compliance Officer relates I to Parks' removal as alternative startup and test supervisor, and to whether the investigation of Parks' relation with Quiltec was legitimate -- two of the acts the NRC Staff asserts to be retal-iatory. Mr. Hrbac's witness statement is also required to be produced pursuant to GPUN's Document Requests 2 and 4.
I
(2) a handwritten draft entitled " Interview of Bahman K. Kanga" (interview held April 29, 1983) (id. at 8);
(3) a handwritten draft entitled " Interview of Mervyn K. Pastor" (interview held May 4, 1983) (Ibid.);
(4) a handwritten draft entitled " Interview of Ronald L. Freemerman" (interview held on May 5, 1983) (Ibid.);
(5) a handwritten draft entitled " Interview of John J. Barton" (interview held May 11 and 12, 1983) (Ibid.);
(6) a handwritten draft entitled "Reinterview of Ronald L. Freemerman" (interview held May 12, 1983) (Ibid.); and (7) two drafts dated May.17, 1983 with handwritten notations of Lake Barrett's sworn statement to OI investigators (NRC Staff Third Supplemental Response at 6).19/
The NRC Staff refused to produce the first of these documents, claiming the draft was exempt under 10 C.F.R. 5 2.790(a)(7)(v).
They refused to produce the other documents under both 10 C.F.R. 5 2.790(a)(5) and $ 2.790(a)(7)(v).
These claims of privilege are untenable. Summaries of in-vestigative interviews are factual, not deliberative. OI inter-view summaries do not contain analysis or opinion. Exemption 5 19/ The statement ultimately submitted by Barrett, Deputy Direc-tor of TMIPO, stated that it was a " revision" of the statement prepared for Barrett by OI based on his interview. Sept. 1, 1983 OI Report at D-9.
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O does not protect such factual investigative material. Exemp-tion 7(v) is similarly inapplicable. The claim that release of a draft of an interview report would disclose an unknown in-vestigative technique, where the final version has been released and where at least some of the witnesses were represented by counsel during the interviews, is unsupported and unsupportable.20/
Accordingly, the NRC Staff should be compelled to produce the documents listed above. GPUN is entitled to such relevant,
- factual material. The drafts may contain information that was not relevant to OI's Report on Parks' technical allegations, and therefore was not included in final summaries of the interviews, but that is highly important to the issues of harassment.
GPUN believes that NRC Staff has failed to identify and pro-i duce other documents responsive to Document Request 37, and to Document Requests 29 and 30, which asked for the production of all documents prepared or received by OI during their 3
20/ OI's questioning of witnesses and recording and summarizing of answers cannot be considered a secret investigative technique that must be protected. In the Charles Husted proceeding, the NRC Staff produced during discovery OI investigators' notes and a draft report of interviews. In the Matter of GPU Nuclear (Three Mile Island Nuclear Station, Unit 1), Docket No. 50-289 (CH), NRC l Staff Responses to Mr. Husted's First Interrogatories and Request for Production of Documents to NRC Staff (April 23, 1986). OI investigators also appeared as witnesses in that proceeding and described how they conducted and recorded investigative inter-views. Transcript of Hearing at 145-160, 232-69, 388-95, 409-44.
investigation of Parks' allegation of discrimination. In the September 1, 1983 OI Report on Parks' technical and procedural allegations, the NRC identifies approximately 20 persons who were interviewed. Short summaries of these interviews are contained in the September 1, 1983 OI Report. GPUN is entitled to all records of these and any other interviews related to Parks' claims. The NRC Staff has neither identified nor produced any notes, transcripts, interview memoranda, tapes, or other records of these interviews, beyond those in the OI Report. These docu-ments must be produced, or, if such documents no longer exist, their destruction must be explained.
C. The Prior Testimony of Lawrence King, Whom the NRC Staff Has Designated As a Witness GPUN's Document Request 33 called for the production of all documents constituting, comprising, recording, transcribing, summarizing, referring or relating to statements by any person other than Parks to any representative of the NRC that Parks was discriminated against for engaging in protected activities.
Again, since Parks' claim that he was discriminated against is the central issue in this proceeding, any statement that might i corroborate or refute his allegations is clearly relevant.
In response to this request, the NRC Staff identified the transcript of a June 7, 1985 OIA Interview of Lawrence King, where King discussed being questioned about Parks' involvement in
Quiltec. The Staff initially contended that the entire tran-script was "part of NRC files and exempt from disclosure under 2.790(a)(6)." NRC Staff Response at 51. B'y letter dated November 6, 1986, the NRC Staff produced two pages of the tran-script, but continued to object to production of the remainder as protected under 5 2.790(a)(6) and on the ground that it did "not refer or relate to the allegations by Parks that he was discrimi- ,
nated against for engaging in protected activities at TMI, or
- that there were engineering, programmatic or other deficiencies at TMI." Shortly before conducting additional depositions in this proceeding, the NRC Staff produced six more pages of the transcript, which clearly related to the claim that the Quiltec investigation was spurious.21/ NRC Staff Fourth Supplemental Re-sponse at 2.
The NRC Staff's claim of privilege is unsound. The few -
pages of the transcript that have been produced deal with GPUN's investigation into Quiltec, which with regard to Parks the NRC Staff claims to be discriminatory. This subject is one on which Mr. King has been interviewed and deposed previously. Two lengthy depositions of Lawrence King, one conducted by GPUN coun-sel in the King DOL case and the other by OI, were released in i
21/ The NRC Staff deposed William E. Austin, a GPUN employee, on January 13 almost exclusively on this topic, and it appears that Parks' and King's claim that the Quiltec investigation was pre-textual is an element of the NRC Staff's case.
full as exhibits to the May 18, 1984 OI Report, and disclosure of similar information in the transcript of the OIA interview can hardly constitute an " invasion of privacy."
Furthermore, the topic is directly related to one of the four acts that the Staff claims to be retaliatory conduct (the investigation into Parks' involvement with Quiltec). In the small portion of King's June 1985 interview by OIA which the Staff has released, King repeats under oath the claim (rejected by DOL, OI, and the NRC Staff in NUREG-0680 Supp. 5) that the Quiltec investigation was pretextual. The NRC Staff has informed GPUN that it intends to call Mr. King as one of its witnesses, and he may well make the same claim at the hearing. His credi-bility will be in issue if he testifies. GPUN clearly has need of the transcript, both to uncover the facts in preparation for its defense and to prepare effective cross-examination. Even if the transcript of the OIA interview were privileged -- and it is not -- GPUN's need would override the privilege.
D. Documents Impeaching Parks' Credibility GPUN Document Request No. 16 called for the production of
- all documents prepared by the NRC in the course of any investiga-tion of Parks' allegations of misconduct by the NRC at TMI.
These documents are relevant to Parks' credibility. Parks made a i number of allegations of NRC misconduct at TMI -- allegations i
1
very similar to those that Parks made against GPUN. Parks' alle-gations of NRC misconduct were investigated by OIA and found unsubstantiated. Documents prepared in the course of this inves-tigation may show that Parks made false or unsupported allega-tions, or may lead to the discovery of such evidence. Mr. Parks and bAP subsequently assailed the conduct of OIA's investigation.
These charges too were investigated. The results of this most recent investigation have not been disclosed, but if Parks' charges were again found to be false, his credibility would be seriously damaged.
In response to this document request, the NRC Staff identi-fied the following documents, which the NRC Staff claims are privileged under exemption 5:
(1) SECY-84-65 dated February 9, 1984 for the Commissioners from James A. Fitzgerald, Ass't General Counsel,
Subject:
GAP Re-quest for Investigation into Richard Parks' Allegations; (2) SECY-84-65A dated June 5, 1984, for the Commission from J. A. Fitzgerald,
Subject:
SECY-84-65 -- GAP Request for Investiga-tion into Richard Parks' Allegations; (3) Memorandum dated February 15, 1984 for the Commissioners from G. H. Messenger, Sub-ject: SECY-84-65, " GAP Request for Inves-tigation into Richard Parks' Allegations";
(4) Memorandum dated March 19, 1984, for Com-missioner Bernthal from G. H. Messenger,
Subject:
SECY-84-65; (5) Memorandum dated March 22, 1984 for File 83-45, from Frederick W. Herr, Acting Assistant Director for Audits, O I A ,- Sub-ject: 84-65; and (6) Memorandum dated December 21, 1983, for G. H. Messenger, through H. Bowers from C. McKenna, Jr.,
Subject:
" Parks Allega-tions Regarding Three Mile Island, Unit 2
'(TMI-2)."
See NRC Staff First Supplemental Response at 4-6. By letter dated November 13, 1986, the NRC Staff provided expurgated copies of the documents.
These documents are post-decisional. They were prepared after the OIA Report and they apparently expound on the basis for and adequacy of the OIA investigation. Nor is there any indica-tion that their release-would be injurious to the government --
i.e., that the documents contain personal opinion so candid that f release would subject the author to criticism or ridicule or l
would mislead the.public. See Coastal States Gas Corp., supra, 617 F.2d at 868-69. These documents are not privileged under exemption 5.
I
- Further, even if the documents were privileged, GPUN's need and due process right would override the privilege. Documents revealing or demonstrating that Parks' allegations were without basis, or tending to lead to the discovery of such evidence, are critical to GPUN's defense. The NRC Staff has elected to prose-cute GPUN on the basis of Parks' claims and has informed GPUN that Parks will be presented as a witness. Having made these i
elections, the NRC Staff should.not be permitted to withhold documents potentially damaging to Parks' credibility.
i Similarly, in its Third Supplemental Response, the NRC Staff identified a Memorandum dated January 16, 1986 for NRC Commis-sioners from Sharon R. Connelly, OIA, entitled "SECY-84-65 -- GAP
! Request for Investigation into Richard Parks' Allegations" and ,
enclosing a January 1986 OIA Memorandum Report of the same title with attachments. The NRC Staff has deleted the conclusions from these documents under exemption 5 and 7(111),22/ but provides no ,
basis to support its claims of exemption.
These documents apparently represent a final investigative report. The findings,-inferences, and conclusions in such a i report are not exempt. See discussion at pages 17-18, supra.
This final report is dispositive of Parks' most recent charges.
! The entire report must be disclosed as the " law" of the agency.
Sears, supra, 421 U.S. at 455-58. There is no basis provided to treat this report any differently from the many other in-vestigative reports on Parks' allegations already released. Nor i
is there a reasonable basis to believe that disclosure of the
! conclusions of this report would constitute an invasion of l
22/ 6 2.790(a)(7)(iii) permits withholding of investigatory L records complied for law enforcement purposes to the extent dis-closure would constitute an unwarranted invasion of personal pri-vacy.
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privacy. There is not the slightest indication in the factual discussion of the report or in the attachments that there is any personal information. The topic of this report, the events and allegations at issue, and the individuals involved, are all well known.23/
Moreover, the conclusions in the report could be extremely important to GPUN's defense. It may well confirm the adequacy of OIA's prior investigation into Parks' allegations of NRC miscon-duct and reaffirm the erroneous nature of Parks' prior and most recent allegations. Such findings would seriously impeach Parks' credibility, upon which the NRC Staff's case rests. Even if nor-mally exempt, this document should be produced in its entirety as necessary to GPUN's defense and as a matter of fundamental fair-ness.
b 23/ The report contains summaries of three interviews of members of Concerned Mothers of Middletown, with deletions to conceal their identity. Perhaps this is the privacy information to which the NRC Staff refers. See NRC Staff Third Supplemental Response at 2. GPUN does not seek this information.
E. Other Investigative Documents Concerning Parks' Allegations
- 1. Documents Prepared During OI Investigation GPUN's Document Request 30 called for the production of all documents prepared during the course of the OI investigation of Parks' allegation of discrimination, referred to in the August 12, 1985 letter from James R. Taylor to P. R. Clark. The general relevancy of this information is self-evident.
The NRC Staff identified the following documents covered by this request:
(1) Memo to file, dated May 24, 1983, by William Ward, entitled, " Analysis of Affi-davit by Richard D. Parks";
(2) Draft memorandum (pending March 30, 1983) from James Vorse to Ben Hayes entitled, "Three Mile Island -- Investigation of Al-legations Based on GAP Affidavit"; and (3) Memorandum, dated March 31, 1983, to N.
Palladino from Ben Hayes entitled, "OI Work Plan Regarding Issues Raised by Parks Affidavit."
l The NRC Staff withheld the first of these documents under exemp-l tion 5 and the other two under exemption 5 and 7(v). NRC Second i
Supplemental Response 2-3.
There is no reasonable basis to believe that these documents
( are protected under exemption 7(v). There has been no showing l
that any secret investigative technique might be revealed. With-out a finding that disclosure of particular investigative tech-niques will thwart future investigations, exemption 7(v) is inap-plicable.
Similarly, there is no reasonable basis to believe that the documents are protected under exemption 5. The documents, pre-pared shortly after Parks made his allegations, apparently de-scribe OI's planned investigation of the allegations, and that office's understanding of Parks' claims. Such documents are highly unlikely to contain any substantive analysis or determina-tions, since the investigation had not yet been performed. Simi-larly, they are hardly part of the "give and take" of agency decisionmaking. Nor is there any indication whatsoever that their release would be injurious to the " consultative" functions of the government.
Even if the documents are privileged, GPUN need would over-ride such privilege. GPUN is entitled to know the scope of OI's investigation and the identity of witnesses OI thought were relevent. If the work plans indicate that a number of in-vestigative actions were thought to be necessary but were not in fact carried out, there may be areas where further investigation is appropriate. The work plans might also show that the DOL Com-pliance Officer's inquiry did not meet NRC standards or was otherwise insufficient. Finally, if OI did carry out investigative action of which GPUN is unaware, such information is both relevant and necessary to permit GPUN to discover the ex-istence of investigative material that has not been disclosed.
- 2. Documents Reflecting NRC Analysis of Parks' Alleged Safety Concerns GPUN's Document Requests 34 and 35 called for the production of all documents prepared by the NRC concerning any safety con-cern described in Parks' affidavit, which safety concern the NRC or any representative thereof has concluded was valid or invalid.
Such documents are relevant since they may tend to show that Parks raised no issue likely to prompt unusual concern (and thus j GPUN had no motive to harass Parks) or reveal a basis for an op-posite belief by the NRC Staff. The documents might also point to inaccurate and unsupported statements in Parks' affidavit, thereby diminishing Parks' credibility, or mignt otherwise lead to the discovery of relevant evidence.
In response, the NRC Staff has identified a number of docu-ments which it claims to be privileged. First, the NRC Staff identified handwritten inspector interview questions for Parks, which the NRC Staff withheld under exception 7(v). NRC Second Supplemental Response at 4. Questioning, however, is not a se-cret investigative technique the disclosure of which would thwart future law enforcement. The production of this document would, on the other hand, permit GPUN to determine what information is not included in OI's brief interview summaries and might reason-ably lead to the further discovery of relevant information. The document might also be pertinent to the credibility of NRC wit-nesses and the weight to be accorded to NRC exhibits.
The NRC Staff also identified an undated, handwritten draft entitled " Review of Affidavit Submitted by Richard D. Parks (Long Version)." The NRC Staff withheld this document under exemp-tion 5. NRC Second Supplemental Response at 4. This document, however, appears to be investigative rather than deliberative.
There has been no showing that this document is part of communi-cations and discussion between decisionmakers and their subordi-nates, and hence part of the "give and take" of the decision-making process. There has been no showing that this document contains personal opinions so candid that the author would be ridiculed or criticized or the public misled. Further, even de-liberative information should be produced if it bears on the inaccuracies in Parks' affidavit or the invalidity of the allega-tions. GPUN's due process right to disclosure of exculpatory de-terminations by the NRC and other material impeaching Parks' credibility outweighs any privilege that might otherwise protect such a document.
The NRC Staff further identified two sets of undated inspec-tor notes " describing information obtained relating to safety al-legations polar crane issues as well as planned further
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activities." Id. at 4 (emphasis added). The Staff claims that this document is deliberative / recommendatory and can be withheld pursuant to exception 5. The claim appears unfounded. There is no indication from the NRC Staff's description that the document contains deliberative information, much less that it is exclu-sively deliberative. What is apparent is that the documents con-tain relevant factual information provided".to the NRC. As dis-
- cussed at page 17 supra, an investigator's notes of interviews are not protected by exemption 5. The notes must be disclosed.
Also in its Second Supplemental Response and with respect to 4
j GPUN's Document Request 34 and 35, the NRC Staff identified:
(1) Memorandum dated May 25, 1983, from James s Vorse to Ben Hayes, entitled " Draft Report ,/(
- Regarding Inspector Findings" and D p enclosing two drafts entitled "Results of the Investigation / Inspection of Procedural '
and Managerial Deficiencies at TMI-1" (see id. at 4);
(2) Five prior drafts entitled Investigation of Alleged Procedure Violations Associated with the Reactor Building Polar Crane Re-furbishment Program: A. Introduction
< (2 drafts); D. Violation of Maintenance Procedures'Used During the Reactor Build-ing Polar Crane Refurbishment (2 drafts);
l Review of the Results of the Technical Ex-
! amination of Alleged Procedural and Mana-gerial Deficiencies at Three Mile Island, Unit 2, dated August 16, 1983 (id at 5);
i (3) Memorandum, dated July 11, 1983, from Fred Clemenson to Roger Fortuna, entitled "Ad-dendum No. 1 To Memorandum to Roger A.
Fortuna.From Fred Clemenson, Dated July 8, 1983, Entitled ' Revisions To Fred Clemenson's Initial Proposed Position On 1
t t f
't )
g, The Polar Crane Recovery Plan Quality As-surance Requirements And The Reasons For The Revision'" (id. at 6);
(4)- Handwritten memorandum from J. Vorse to W.
Ward entitled "TMI-2 Polar Crane Report" (id.);
(5) Memorandum from Fred Clemenson to Roger
. Fortuna, dated July 8, 1983, entitled "Re-visions to Fred Clemenson's Initial Pro-posed Position on the Polar Crane Recovery Plan Quality Assurance Requirements and the Reasons for the Revisions" with attachments a through f (id. at 6-7);
(6) Handwritten and typed drafts entitled
" Summary of Three Mile Island Unit 2 Polar Crane Technical Concerns" (undated) (id.
at.7); and (7) Handwritten markup by Fred Clemenson enti-tied " Technical Review of the Three Mile Island Unit 2 Polar Crane Issue" (undated)
(id.).
The NRC is withholding these documents under exemption 5.
Once more, investigative material is not protected by exemp-tion 5. Discovery and due process rights extend beyond the final version of investigative reports. GEUN is entitled to discover the information that was omitted from the final version of in-vestigative reports. Such information might be exculpatory or lead to further discovery of admissible evidence. GPUN must have access to the underlying materials to enable it to evaluate the accuracy of conclusions and understand the full extent of their support in the record.
h Further, GPUN submits that the NRC Staff is claiming privi-lege in an inconsistent and arbitrary manner. With respect to the same document request and in addition to the documents above, the NRC Staff at first claimed privilege for a March 2, 1984 Mem-orandum from Ben Hayes to William Dircks entitled " Staff Actions Regarding OI -- Report on TMI-2 Cleanup Allegations," and a February 24, 1984 Memorandum for Ben Hayes from R.D. Walker and A.B. Beach entitled Assessment of Staff Review and Response to OI Report on TMI-2 Cleanup Allegations." See NRC Staff Second Supplemental Response at 5.24/ These documents were made public in May 1984 in response to expressions of interest by the Adviso-ry Panel for the Decontamination of Three Mile Island. The NRC Staff further claimed that an October 18, 1984 memorandum from Ben Hayes te William Dircks entitled " Investigation of TMI-2 Polar Crane Allegations" is privileged. Id. This document too has been made public during NRC responses to congressional ques-tions. The NRC Staff next claimed as privileged a Memorandum from Ben Hayes to William Dircks dated August 23, 1983 and enti-tied "TMI-2 Polar Crane Issues;" a Memo from Fred Clemenson to Roger Fortuna, dated July 25, 1983 entitled " Final Draft of My
- Report on Parks' Technical Allegations Regarding the TMI-2 Polar l Crane;" and a copy of the report. Id. at 6. These memos and the 24/ After learning that these documents were already publicly l available, the NRC Staff produced them. NRC Staff Fourth Supple-mental Response at 3.
1 i
t ,
report were publicly released on September 13, 1983, at the same time as the September 1, 1983 OI Report and September 7, 1983 OIA Report.
It thus is obvious that whether a claim of privilege will be raised depends on who is making the decision for the NRC. The indications are strong that the NRC Staff is taking a very narrow view of its disclosure obligations, since the public availability of these documents demonstrates that the subject and content of these documents are not confidential. The NRC has routinely re-leased such documents, and therefore evidently does not believe that the release of the documents is injurious to the consulta-tive functions of the government. The documents listed on page 44 above are no different. They too should be released.
In the NRC Staff Third Supplemental Response, the NRC Staff identifies the following additional documents relevant to GPUN's Document Requests 34 and 35:
(1) October 31, 1983, Memorandum from Bernard Snyder, TMIPO, to Harold Denton, NRR, en-i titled " Safety Review of the Reactor Building Polar Crane Load Tests" and enclosing: (1) draft letter to Kanga, GPU l
regarding Reactor Building Polar Crane Load Test; (2) draft TMIPO Safety Evalua-tion on Refurbishment of the Reactor Building Polar Crane, Load Test, and l Recertification for Use, dated October 1983; (3) September 28, 1983 letter from L. Barrett to B. Kanga, GPU, regarding Re-quest for Additional Polar Crane Refur-bishment Information; (4) GPU's October 11 and 25, 1983 responses to the
! j
September 28, 1983fletter; and (5) draft (undated) daily highlight memo entitled
" Daily Highlight -- TMI-2 Reactor Building Polar Crane Safety Evaluation."
(2) Thomas Poindexter's files containing pre-liminary analysis of various Parks allega-'
tions of safety concerns.
(3) Undated draft Memorandum for TMIPO Staff from Bernard J. Snyder,
Subject:
Review of Allegations by Mr. Richard Parks and Mr. Larry King, with attached lists per-taining to safety issues raised by Parks' March 21, 1983 affidavit.
(4) Undated. Memorandum for TMIPO from Bernard J. Snyder,
Subject:
Review of Al-legations by Richard Parks.
(5) March 24, 1983 Note to Ed Case from Bernie Snyder, summarizing early review of Parks safety concerns, with three attachments:
draft letter to R. Arnold from B. J. Snyder, document identified in Item 5 above, and annotated list of safety concerns raised in Parks 3/21/83 affida-vit.
(6) March 25, 1983 Memorandum for L. Barrett, from B. J. Snyder,
Subject:
TMIPO Activi-ties Relative to Allegations Made by Mr. Richard Parks.
NRC Staff Third Supplemental Response at 2, 4-6.
l The NRC Staff withholds these documents under exemption 5, but provides no specific basis to assess the validity of the claim, and there is reason to question the claim. A similar l
claim of privilege is made for a Memorandum dated March 25, 1983 j for Lake Barrett from P.L. Grant, TMIPO, entitled " Review of Polar Crane Activities and Administrative Procedures 1047 and l
I i
1543." Id. at 7. This document had already been provided to GPUN in the NRC Staff's First Supplemental Response.
Because of the nature of the documents above, the dearth of information provided by the NRC Staff, and the manner in which privilege is apparently being claimed, GPUN believes that the claims of exemption are unfounded. The documents above represent TM7PO's view of Parks' allegations and related polar crane issues.25/ Members of TMIPO had direct, personal knowledge of facts and issues related to Parks' allegations. They conducted the first investigation of Parks' allegations, which they found unsubstantiated. See, e.g., Memorandum from L. Barrett to B. Snyder, " Summary of TMIPO Site Actions Related to Polar Crane /
Parks' Issues" (March 24, 1983), attached to NRC Staff Response.
See also September 1, 1983 OI Report, Attachment D-9. The docu-ments above almost certainly contain factual statements and o'b-servations that must be disclosed. Since these documents report relevant information, they must be produced.
25/ TMIPO is the NRC Staff organization at TMI Unit 2 with day to day oversight responsibilities for the cleanup; its role is primarily to review and approve technical and procedural propos-als relating to the maintenance and cleanup of the unit. Within NRC, TMIPO represents the pool of personnel most closely attuned to GPUN activities at TMI-2. Thus, their evaluation of the sig-nificance and validity of Parks' concerns and manner in which the concerns were being addressed by GPUN could be highly significant and could provide information necessary to a full and fair hear-ing and accurate resolution.
i
Further, even if intertwined with opinion, the documents should be produced in their entirety. It is GPUN's understanding that TMIPO, on the basis of its direct observations and in-volvement, believed Parks' allegations to be generally unfounded and certain OI findings to be in error. This evidence, even if normally covered by exemption 5, is so material to this enforce-ment proceeding and to GPUN's defense that it must, as a matter of fairness and due process, be produced.
Lastly, in the NRC Staff Third Supplemental Response, the NRC Staff identified the following as relevant to GPUN's Document Requests 34 and 35:
(1) Two undated drafts of Memorandum from Harold Denton, NRR, to William J. Dircks, EDO, entitled " Response to OI Review of SECY-84-37: Staff Review and Response to OI Report on TMI-2 Cleanup Allegations,"
with attached draft Staff positions.
(2) Note dated July 24, 1984, to Ben Hayes, OI, from Bernard Snyder, TMIPO, entitled
" Draft Response to June 4, 1984 H. Myers' Questions" with draft response to ques-tions 2 and 4 attached.
(3) Fax dated August 10, 1984, to Bernie Snyder and Bill Russell from T. Rehm with attached handwritten markup of draft re-sponses to Henry Myers' questions.
(4) Memorandum, dated September 16, 1983, to Chairman Palladino from William Dircks, entitled " Draft Letter to GPU re OI Inter-im Report on TMI-2" with draft of letter attached.
(5) TMIPO staff drafts of input to SECY-84-36.
The drafts contain evaluations of various
)
o OI findings and of the Parks safety alle-gations.
NRC Staff Third Supplemental Response at 3-5.
The NRC Staff again withholds these documents under exemp-tion 5, Once more, the claim of exemption is broad and no spe-cific brais is provided to assess the validity of the claim.
Once more, the claim of privilege appears arbitrary. The NRC Staff also claims that an April 30, 1984 Memorandum from William Dircks to the Commissioners, entitled " Final Resolution of Tech-nical Considerations Pertaining to the TMI-2 Cleanup Allegations"
'and an April 11, 1984 memorandum for William Dircks through Harold Denton from B. Snyder, A. Beach, W. Rogers, and R. Walker, entitled " Safety Significance of TPII-2 Allegations" (with attach-ments) are privileged. Id. at 4-5. These documents have already been publicly released. The existence of privilege for the other l
documents listed above seems highly dubious. The subject matter has not been kept confidential and there is no reasonable expec-tation that their release would be injurious to the consultative functions of the NRC.
i The documents above were authored after the NRC's in-vestigative finding and after final agency action on Parks' tech-nical and procedural allegations. Such documents are not exempt.
Moreover, even if the documents were within the scope of exemp-i tion 5, the privilege would be outweighed by GPUN's need in this
proc 2eding. The documents apparently disagree with and criticize findings in the September 1, 1983 OI Report. Since the NRC is relying on the OI Report and may seek to offer the report as evi-dence in this proceeding, the production of material refuting or impeaching the validity of the report must be produced to GPUN as a matter of fundamental fairness.
IV. Conclusion For the reasons discussed above, GPUN respectfully submits that the NRC Staff should be compelled to produce the documents identified in the preceding pages. GPUN further requests that the Presiding Officer hear oral argument on this motion.
Respectfully submitted, SHAW, PITTMAN, POTTS & TROWBRIDGE
\Q_. iou, 0 , --
1 By: J. Patrick Hickey C.
bavid R. Lewis Counsel for GPU Nuclear Corporation Dated: February 4, 1987 i
I
o fh.f' UNITED STATES OF AMERICA '87 FEB -5 P3 :26 NUCLEAR REGULATORY COMMISSION Before the Administrative Law JudcdIg g, ', ;, g. [
BiGhCu In the Matter of )
)
GPU Nuclear Corporation ) Docket No. 50-320
) License No. DPR-73
) EA-84-137 (Three Mile Island Nuclear )
Station, Unit No. 2) )
CERTIFICATE OF SERVICE I hereby certify that copies of the foregoing "GPU Nuclear Corporation's Motion to Compel NRC Staff to Produce Documents and Request for Oral Argument" and "GPU Nuclear Corporation's Motion for Issuance of Subpoenas," both dated February 4, 1987, were served by deposit in the United States Mail, First Class, postage prepaid this 4th day of February, 1987, to the following persons:
Ivan Smith, Esquire Administrative Law Judge Atomic Safety and Licensing Board Panel U.S. Nuclear Regulatory Commission Washington, D.C. 20555 i Docketing and Service Branch l Office of the Secretary i
U.S. Nuclear Regulatory Commission Washington, D.C. 20555 George E. Johnson, Esquire Office of the General Counsel 9604 MNBB U.S. Nuclear Regulatory Commission Washington, D.C. 20555 I J. , Patrick / Hickey Dated: February 4, 1987
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