ML20212P375
| ML20212P375 | |
| Person / Time | |
|---|---|
| Site: | Crane  |
| Issue date: | 03/10/1987 |
| From: | Berry G NRC OFFICE OF THE GENERAL COUNSEL (OGC) |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| CON-#187-2784 CIV-PEN, EA-84-137, NUDOCS 8703160088 | |
| Download: ML20212P375 (8) | |
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03/10/87 00CMETED USNRC UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION
'8i tiAR 12 All 53 BEFORE THE ADMINISTRATIVE LAW JUDGE OFFICE Of EUf MT 00CKEritiG ). SsViCL In the Matter of
)
)
OPU NUCLEAR CORPORATION
)
Docket No. 50-320
)
(Civil Penalty)
(Three Mile Island Nuclear Station
)
License No. DPR-73 Unit No. 2)
)
EA 84-137 NRC STAFF RESPONSE TO GPU NUCLEAR SECOND MOTION TO COMPEL NRC STAFF TO PRODUCE DOCUMENTS I.
INTRODUCTION On February 24, 1987, GPU Nuclear (GPUN) filed a motion in which it reonests the Presiding Officer to compel the NRC Staff to produce documents relating to the manner in which the Office of Investigations (OI) conducts certain of its investigatory activities.
GPUN contends the requested documents are relevant to this proceeding. GPUN also disputes the adequacy of the privilege asserted by the Staff in resisting disclosure. GPU Nuclear Second Motion to Compel at 2 (hereafter "Second l
Motion").
As e::plained below, the documents sought by GPUN are not relevant to any substantive issue in this proceeding and do not contain information reasonably calw1ated to lead to the discovery of admissible t
l evidence.
Consequently, GPUN's discovery request exceeds the scope of discovery permissible under the Commission's regulations and should be denied.
(
II.
BACKGROUND l
On January 13, 1987, and without first complying with 10 C.F.R.
l l
5 2.744, GPUN served upon the NRC Staff its "Second of Request for 8703160088 870310 ~
PDR ADOCK 05000320 p547 g
PDR l
1 _,
Production of Documents" in which it sought to discover all documents in the Staff's possession generated on or after January 1,1983 relating to:
(i) "the confidentiality of persons interviewed (formally or informally) by the Office of Investigation (OI)"; (ii) "the note-taking, transcribing, recording, or memorializing of interviews (formal or informal) conducted by OI"; and (iii) "the retention, preservation, or filing of notes, transcripts, recordings, interview memoranda, or other record of interview (formal or informal) conducted by OI."
- d. at 1-2.
The Staff timely objected to GPUN's discovery requests.
See NRC Staff Response to GPUN Nuclear Coporation's Second Request for Production of Documents (hereafter
" Staff Second Response")
(February 9, 1987).
The Staff took the position that documents of the type sought by GPUN were not relevant and not reasonably calculated to lead to the discovery of relevant evidence.
Id., passim.
The Staff, however, alerted GPUN to the fact that in 1985, the Commission had adopted and caused to be published a Statement of Policy regarding the confidentiality of persons providing information to the NRC.
See 50 Fed.
Reg.
48506 (November 11, 1985);
50 Fed. Reg. 50864 (December 12, 1985).
In resisting GPUN's discovery request, the Staff also interposed the objection that the type of documents sought by GPUN were exempt from disclosure pursuant to 10 C.F.R.
! 2.790.
Staff Second Response at 1-3.
III. DISCUSSION l
l A.
The Staff's Privilege Claims GPUN states that it "has no inkling" which of the nine exemptions j
set forth in 10 C.F.R. 5 2.790 the Staff invoked in resisting GPUN's l
t l
l l
f...
document request., Second Motion at 6.
While it is true the Staff did not identify the particular exemption applicable to GPUN's document requests, it hardly can be said that GPUN is left to guess as to the bases for the Staff's sction.
Section 2.790(a) of the Commission's procedural regulations sets forth the agency's policy regarding the public disclosure of official agency records.
With limited exceptions, all final agency records relating to the NRC's regulatory activities are made available for inspection and copying in the NRC's Public Document Room.
10 C.F.R.
I 2.790(a). One of these exceptions is listed in 10 C.F.R. I 2.790(a)(2).
This provision exempts frorn disclosure records "[r] elated solely to the internal rules and practices of the Commissioni.]"
Id.
This is precisely the type of records that GPUN seeks to have the Staff compelled to
. produce.
GPUN Second Request for Production of Documents at 1-2 (GPUN seeks discovery of "all policies, procedures, memoranda and all other types of practice guide" that in whole or in part relate to the confidentiality of persons interviewed by OI and OI's record taking and retention practices).
It was or should have been apparent to GPUN that the Staff relied upon 10 C.F.R. I 2.790(a)(2) in objecting to the firm's discovery request.
There can be little doubt that the type of documents sought by GPUN are exempt from disclosure.
It is well settled that the exemptions listed in 10 C.F.R.
I 2.790 are coextensive with those set forth in the Freedom of Information Act (FOIA), 5 U.S.C.
9 552, which has been implemented by the Commission in 10 C.F.R.
I 9.5.
Sec Consumers Power Company (Palisades Nuclear Power Facility), ALJ-80-1, 12 NRC 117, 121 (1980).
Under section 9.5(a)(2) of those regulations, records l
l
1,
relating " solely to. the internal rules and practices" of the agency are exempt from disclosure.
Among the type of records to which this exemption applies are "[o]perating rules, guidelines, manuals on internal procedure, schedules and methods used by NRC... investigators [. ]"
10 C.F.R. I 9.5(a)(2)(1).
Because the documents which GPUN seeks to discover relate to the internal rules and practices governing certain of OI's investigatory activities, they are exempt from disclosure. See Hardy
- v. Bureau of Alcohol, Tobacco a Firearms, 631 F.2d 653, 656 (9th Cir.
1980)
(" law enforcement materials, the disclosure of which may risk circumvention of agency remilation, are exempt under Exemption 2").
B.
The Documents Sought By GPUN Are Not Relevant Under 10 C.F.R. I 2.744, a document that is exempt from disclosure may be discovered by a party only upon a sucessful showing that the information contained in the document sought is relevant and either necessary to a proper decision in the proceeding or unobtainable from any other source.
Palisades, supra,12 NRC at 119.
The type of documents sought by GPUN neither are relevant to any issue in this proceeding nor necessary to a proper decision in this proceeding.
In responding to GPUN's first motion to compel the Staff discussed at length the issues involved in this proceeding.
See NRC Staff Response to GPU Nuclear Corporation's Motion to Compel NRC Staff to Produce Documents at 4-17 (March 3, 1987).
The Staff noted that the only issues involved in this enforcement proceeding are whether the allegations set forth in the Notice of Violation (NOV) issued to GPUN on August 12, 1985 by the Director of the Office of Inspection and
f-Enforcement constitute a violation of 10 C.F.R. I 50.7(a) and whether the
$64,000 civil penalty proposed to be assessed is warranted.
Id. at 5; accord Radiation Technology, Inc., ALAB-567,10 NRC 533, 536 (1979).
The NOV sets forth in detail the factual bases underlying the allegation that GPUN, acting through its employees and agents, discriminated against Richard Parks for engaging in protected activity.
Because GPUN has requested a hearing., the Staff must prove at trial g novo by a
" preponderance of the reliable, probative, and substantial evidence,"
Palisades, supra, 12 NRC at 126, that the adverse actions taken against Mr. Parks by GPUN was causally related to Mr. Parks' involvement in protected activity.
Internal documents relating to the methods by which OI conducts certain of its investigatory activities will not shed any light on this issue.
Consequently, discovery of such materials liardly can be said to be "necessary to a proper decision" in the proceeding as must be the case before disclosure can be compelled.
See 10 C.F.R. I 2.744(d).
Nor is discovery of such documents reasonably calculated to lead to a
the discovery of admissible evidence not already in the GPUN's possession or otherwise obtainable from another source.
According to GPUN, information relating to OI's record keeping and retention practices is essential to determine the existence and location of additional OI records.
Second Motion at 5.
GPUN ignores the fact that in responding to the firm's prior extensive requests for agency documents relating to the allegations set forth in the NOV, the Staff identified and produced to GPUN hundreds of responsive documents. For this reason the decision in Professional Adjusting Systems of America, Inc.
v.
General Adjustment Bureau, Inc., 373 F. Supp.1225,1229 (S.D.N.Y.1974), does not bolster
I--.
GPUN's position.
As GPUN notes, there the court held that it was not l
improper for a party to inquire into the document retention practices of l
l its adversary in the "first wave" of discovery.
Id.
The rationale for this ruling is that the answer to such an interrogatory would enable a party to craft with precision its subsequent request for documents. That purpose is noticeably absent here because, as noted above, in response to GPUN's earlier document requests the Staff already has identified or produced to GPUN all responsive documents known to exist.
GPUN does not even allege, much less make a threshhold showing, that there is any basis to suggest that the Staff's efforts to comply with GPUN's document requests were undertaken in bad faith or that the Staff located but refused improperly to ' identify or produce responsive documents.
In fact, the records confirms the Staff's' good faith and responsiveness to GPUN's discovery requests.
See Affidavit of Ronald Meeks at if G-11, attached to NRC Staff Response in Opposition to Issuance of Subpoenas (March 3, 1987).
Thus contrary to GPUN's assertion, the real purpose of the discover GPUN now seeks against the Staff is not to " ascertain whether additional documents exist," Second Motion at 5, but rather to engage in a fishing expedition for exculpatory evidence.
This, of course, is not a reason to grant GPUN's motion since a party is not permitted to rummage through the Government's files looking for exculpatory evidence.
See United States v. Conder, 423 F.2d 904 (6th Cir. 1970).
If such evidence exists, the Government has an affirmative obligation to make it available to the accused.
Brady v.
United States, 373 U.S. 83, R' (1963).
i,
IV.
CONCLUSION Internal agency documents relating to OI's record keeping and document retention practices and policies are exempt from disclosure under 10 C.F.R.
I 2.790(a)(2).
Additionally, such documents are irrelevant and not necessary to determine whether the actions taken against Mr. Parks by GPUN's agents and employees constitute a violation of 10 C.F.R. I 50.7(a).
Finally, since all requested agency documents relating to the matters in controversy already have been identified or made available to GPUN, the discovery sought is not necessary to enable GPUN to ascertain whether unidentified responsive documents exist.
Accordingly, GPUN's motion should be denied.
pectfully submitted, R
f i
G go A
rry Couns for NRC Staff 1
l Dated this 10th day of March 1987 at Dethesda, Maryland i
l l
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i
- g 00r. METED USNRC UNITED STATES OF AMERICA
' NUCLEAR REGULATORY COMMISSION
- B7 MAR 12 N1:53 DEFORE THE ADMINISTRATIVE LAW JUDGE -
0FFICE OT SElit.IAR'r 00CMETlHG 4, SUVICl.
BRANCH In the Matter of
)
)
Docket No.
50-320 GPU NUCLEAR CORPORATIOF
)
(Civil Penalty)
)
License No. DPR-73 (Three Mile Island Nuclear Station
)
EA 84-137 Unit No. 2)
)
CERTIFICATE OF SERVICE I hereby certify that copies of "NRC STAFF RESPONSE TO GPU NUCLEAR SECOND MOTION TO COMPEL NRC STAFF TO PRODUCE DOCUMENTS" in the above-captioned proceeding have been served on the following by deposit in the United States mail, first class, or, as indicated by an
- asterisk, by deposit in the Nuclear Regulatory Commission's internal mail system, this 10th day of March,1987:
- Ivan W. Smith, Esq.
Ernest L. Blake, Jr.
Administrative Law Judge Shaw, Pittman, Potts & Trowbridge Atomic Safety and Licensing Board 2300 N Street, NW U.S. Nuclear Regulatory Commission Washington, DC 20037 Washington, DC 20555
- Atomic Safety cnd Licensing Steven L. Hock, Esq.
Appeal Board Thelen, Marrin, Johnson, Bridges U.S. Nuclear Regulatory Commission 2 Embarcadero Center Washington, DC 20555 San Francisco, CA 94111
- Docketing and Service Section Office of the Secretary U.S. Nuclear Regulatory Commission Washington, DC 20555 O
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