ML20214T059
| ML20214T059 | |
| Person / Time | |
|---|---|
| Site: | Shoreham File:Long Island Lighting Company icon.png |
| Issue date: | 11/28/1986 |
| From: | Cumming W Federal Emergency Management Agency |
| To: | Atomic Safety and Licensing Board Panel |
| Shared Package | |
| ML20214S866 | List: |
| References | |
| OL-5, NUDOCS 8612080464 | |
| Download: ML20214T059 (20) | |
Text
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% U'ril UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION
'86 DEC -5 P12 :05 Before the Atomic Safety and Licensing Board uff k; .
00Ceci yt
)
In the Matter of )
)
LONG ISLAND LIGHTING COMPANY ) Docket No. 50-322-OL-5
) (EP Exercise)
(Shoreham Nuclear Power Station, Unit 1) )
)
FEMA'S RESPONSE TO SUFFOLK COUNTY, STATE OF NEW YORK, AND TOWN OF SOUTHAMPTON MOTION FOR ORDER COMPELLING FEMA TO PRODUCE WITNESSES FOR DEPOSITION, TO PERMIT WITNESSES TO RESPOND TO DEPOSITION OUESTIONS, AND TO PRODUCE DOCUMENTS AND MOTION FOR A PROTECTIVE ORDER INTRODUCTION On November 18, 1986, Suffolk County filed its second Motion to Compel against the Federal Emergency Managenent Agency. The November 18, 1986, motion seeks to compel FEMA to produce certain witnesses for deposition, to permit those witnesses to respond to deposition questions, and to produce documents. Since the Board ruled on the First Motion to Compel on November 19, 1986, FEMA counsel has attempted to reflect the Board's order of the 19th in this analysis.
The Suffolk County motion in 60 pages attempts to comprehensively discuss various theories upon which this Board may rule in its favor. FEMA counsel counts over 40 direct and indirect references in the Suffolk County motion 8612030464 861201 PDR ADOCK 0b000322 G PDR
. (hereinafter " County Motion") to the need for the Intervenors to obtain the
" facts" as to what transpired on February 13, 1986, the day of the exercise that is the critic &1 " fact" of this proceeding and thereby specifically determine what happened during the exercise. A typical reference to what is sought by the County is representative of all the other references. At page 40 the County Hotion states that "As detailed in Section II.B above, the information being sought by the Governments is largely factual: e.g., What happened or didn't happen during the exercise, . . . what data were used in reaching the conclusions in the FEMA report, . . . ." If the purpose of this proceeding is as Intervenors state to litigate the exercise, rather than the FEMA Post-Exercise Assessment (hereinafter PEA) dated April 17. 1986, then the concept of TEMA's involvement in this proceeding is no longer as an expert witness,'and the proceeding merely needs FEMA personnel as fact witnesses because there are no FEMA findings or determinations that are rebuttable.
FEMA asserts that if FEMA's participation is only as a fact witness, and its report is not at issue and entitled to presumptive validity, then the primary burden of discovery by the County to determine the facts of what happened or didn't happen during the exercise lies against LILCO as the organization that conducted the exercise. There are several reasons for the j Board to make this determination. First, as so aptly discussed in the County Motion, also at the top of page 41, what evaluators saw or didn't see during the exercise may be material to the Board in its attempts to determine what happened or didn't happen during the day of the exercise. FEMA's discussion ;
l of what happened the day of the exercise is reflected in its PEA. The facts upon which FEMA relied are stated in the report. Since.the FEMA conclusions j are arguendo " rebuttable", the only version of the facts not known to the Board or FEMA is the parties' own version of the facts. LILCO presumably will i
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argue that the facts upon which FEMA relled in determining deficiencies and
, actions subject to correction are or were erroneous. The Intervenors have the full rega11a of the discovery process to determine that the version of the facts relied upor. by FEMA was deficient in that they were favorable to LILCO, and moreover only deficiencies and actions subject to correction were to be found. Only the most vigorous discovery effort by LILCO and Intervencrs,
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independent of FEMA's own depiction of the facts, can give the Board the security of knowing whether or not FEMA's published facts are correct.
4 Essentially, if the Board allows the primary burden of discovery of the i
facts to lie against FEMA, if an error in those facts did occur, then the Ilke11 hood is that the parties and the Board will r.ot have any independent basis to determine whether FEMA's version of the facts is incorrect, with the possible exception that some FEMA witness or document might show that FEMA failed to reflect in its report some fact or that FEMA disregarded some matertal fact as developed by the recording process incidental to its evaluation process. Even if FEMA open filed all documentation before, during l
and after the February 13th exercise, and allowed all 38 evaluators to be deposed, that documentation and underlying testimony even if found to rebut the FEMA PEA is not determinative of the facts for the Board. The Board still has to determine independently what happened the day of the exercise. While the discussion of privliege and need for confidentiality is reserved for later on, as accurately stated by the Intervernors in their motion at paragraph 3 on 58, whether the evidence is available from other sources is one of the four 1 tests used in determining at the threshold of any privilege whether the information must be disclosed by the government. See,U.S. v. Nixon, 418 U.S.
683 (1974). Accordingly, FEMA requests if the exercise and not the FEMA PEA l
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is what is at issue in this proceeding, that the Board issue an order clearly determining that the burden of discovery concerning what happened on the day of the exercise during the exercise falls against LILCO. If the PEA is what i
is being litigated then FEMA acknowledges the burden of discovery falls against FEMA.
FEMA POSITION ON DEPOSITION OF WITNESSES The County Motion seeks to compel FEMA to produce for deposition certain non-designated witnesses, all of whom were members of the RAC that developed the Post Exercise Assessment and assisted in the evaluation of the exercises.
The RAC at the time of the exercise consisted of its Chair, Roger Kowleski, a FEMA Region II employee; Herbert Fish, a Department of Energy employee; Cheryl Mallna, a U.S. Department of Agriculture employee; Ronald Bernacki, an I
employee of the % ! . M P ug Administration; and Paul Giardina, a U.S.
Environmental Protection Agenc employee. In addition, two consultants served l
- as principal advisors to the RV' Thomas E. Baldwin, Argonne National Laboratory employee; and Joseph H. Keller, Westinghouse Idaho Nuclear Corporation employee. It should be noted that the Intervenors have noticed for depositions other non-designated witnesses. FEMA has not previously
, authorized non-designated witnesses to be deposed in ASLB proceedings. In this instance, however, the confusion over the admitted contentions based on the Board's October 3, 1986, Order, and the necessity to indicate to all parties that further witnesses on FEMA's behalf might be necessary depending on how the hearing process was structured by the Board, caused FEMA to allow principal evaluators in areas determined to be deficient in the Post Exercise i
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o Assessment to be deposed. FEMA asserts that the principles of the Appeal Board's decision in Long Island Lighting Co. (Shoreham Nuclear Power Station, Unit 1), ALAB-773, 19 NRC 1333 (1984) which largely concerned document production should be extended to cover all non-designated witnesses that 4
Intervenors have either noticed for deposition or moved this Board to subpoena. That decision should also be extended to protect deposed person's from answering questions subject to the deliberative process pending.
Based on the depositions to the time of the filing of this Motion, the Intervenors are continuing to depose all witnesses on pre-exercise and post-exercise activities and thought processes. Since FEMA has produced i
substantially all pre-exercise documents, (even though concedeo to be irrelevant by the Intervenors in their November 10, 1985, Response to the FEMA Motion for Reconsideration), they continue to use these documents to depose and Argonne personnel. Since as discussed elsewhere in this Motion FEMA has produced substantially all fact materials in the form of the Post-Exercise Assessment and documentation actually developed during the exercise, FEMA requests'the Board to restrict Intervenors from questioning any produced witnesses on pre or post exercise thought processes or deliberations.
The unwillingness of FEMA to have its hearing witnesses deposed prior to the Board's determination of what issues are to be litigated is based on the need for discovery not to be consumed with speculative testimony that may or may not be relevant at trial. The Board's order of November 19th continues to ,
allow this kind of broad discovery of irrelevant or privlieged material. Also the purported confusion expressed by the Intervenors as to why certain witnesses have so far not been produced for deposition, while others in the same category have been offered, is readily explained by the peculiar
. _.6-procedural status of this t.ase. Ihor Husar was noticed for a deposition by the Intervenors since he was listed as a potential trial witness by FEMA. Mr .-
Husar, although known to the Intervenors as having no direct knowledge of the exercise, was made Chairman of the RAC for review of revisions 7 and 8 of the LILCO plan. Since, in correspondence with FEMA Counsel, Intervenors indicated that they expected to try Revisions 7 and 8 during the course of this exercise proceeding, Counsel for FEMA had listed Mr. Husar as a potential witness.
Also, Counsel for FEMA was being perhaps unduly zealous in his efforts to oblige Intervenors Counsel when he offered to produce Mr. Husar, and should
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have entered an objection based on relevancy. FEMA requests this Board to issue guidelines concerning its jurisdiction over emergency planning issues related to Revision 7 and 8 of the LILCO plan and how evidence with respect to these provisions are to be integrated with the OL-3 Board's proceeding.
This confusion over FEMA's willingness to produce a member or the Chairman of the Regional Assistance Committee (hereinafter RAC) whether for purposes of plan or exercise litigation, will likely be resolved when the Board rules concerning its jurisdiction in the context of the admissibility of evidence for the purposes of this proceeding with respect to Revisions 7 and
- 8. FEMA Counsel believes that Revisions 7 and 8 are still subject to litigation before the OL-3 ASLB.
In summary, once the admitted contentions are known FEMA is willing to produce its designated hearing witnesses for deposition. It is, however, important to put the Board and all parties on notice now that FEMA counsel believes that there are limitations on the scope of discovery that even designated witnesses are subject to prior to trial, including limitations based on relevancy and materiality and restrictions on questions involving the
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deliberative process. So far in depositions. Intervenors have ignored all objections based on relevancy. Additionally, the actual deliberations of the RAC, whether reviewing a plan or taking part in and reviewing an exercise, are protected from discovery. No RAC documents exist that are clearly ano solely factual or capable of being separated from the deliberative process. The clearest possible rulings on this issue is necessary by the Board because unwarranted intrusion into the RAC process will destroy a valuable tool presently available to FEMA in its review of offsite emergency plan and preparedness.
As accurately stated by Intervenors on page 28 of the County Motion, the purpose of discovery is to (1) ascertain the facts, (2) refine the issues, and (3) prepare adequately for a more expeditious hearing or trial. Various citations by the Intervenors are noted. The Intervenors apparently believe that some FEMA document or witness as requested for production in the County Motion will prevent them from being " surprised" at the hearing. Here, both the FEMA witnesses and their conclusions are known or will be known prior to the hearing, but the partles' witnesses and their conclusions are not known by FEMA. Relying on the vigorous discovery efforts of both parties, FEMA should have this information prior the close of discovery on December 19th. Assuming it does not, FEMA reserves the right to call further witnesses at trial should it be necessary to rebut any witnesses called by either party with respect to l
the PEA.
The County Motion extensively discusses the theory that FEMA, by its conduct, has walved its rights to preclude discovery based on objection or privilege. This waiver, according to the County Motion, is based on settled case law. FEMA Counsel disagrees with this interpretation and asserts that in i
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the area of offsite emergency plan and exercise litigation, the discovery issues and the true analysis of wherein lies the pubilc interest have not been explored extensively by either administrative judges or the NRC or the courts and that the area may well be sul generis and is not the subject of settled law. Cf. U.S. v. Nixon, supra.
To quickly dispose of one such misleading waiver argument, the County Motion at page 16 and 17 indicates that FEMA, by responding to Fabian Palomino on April 26, 1986, impiledly indicated it walved its rights with respect to The premise of the letter is that the exploration of the issues
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discovery.
would be under NRC rules. Nowhere in former NRC proceedings, nor this case, canFEMAcounselfindevidencethattherecanNsanimpiledwalverofrights under the NRC rules. Halver by definition is intentional relinquishment of known rights. Perhaps Intervenors meant to apply some form of estoppel theory against FEMA instead of the theory of waiver. At this stage it suffices to state that FEMA by its April 26, 1986, letter walved no known rights.
The County Motion also suggests at the last paragraph of page 16, that FEMA's refusal to hold a pubile meeting indicates an implied waiver of its discovery rights. The failure to hold a pubile meeting has already been ruled on in Lona Island Llahting Co. (Shoreham Nuclear Power Station, Unit 1),
CLI-86-11, 23 NRC 577 (1986), and the time for reconsideration is now passed under NRC rules. Even if justiclable elsewhere, which FEMA does not concede, there is no basis upon which to argue an impiled walver under NRC rules, i
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DOCUMENT PRODUCTION Suffolk County has sought the production of a large number of broadly described documents. The vast majority of these documents have been released by FEMA. While highly repetitive discussion occurs on the nature of the so-called " factual" documents sought throughout the County Motion, a brief description of the categories of documents requested by the Intervenors demonstrates that mere factual documents are not sought. It should be noted that a Motion to Compel, even under NRC standards require a high degree of specificity. See Duke Power Co. (Catawaba Nuclear Station Units 1 and 2),
LBP-82-Il6, 16 NRC 1937 (1982). Simultaneous with the filing of this motion FEMA has submitted to the Board for in camera review of documents for which privilege is asserted. Also, an index of General Accounting Office documents potentially relevant to this proceeding and used to prepare their forthcoming report on the Shoreham exercise has been prepared for the convenience of counsel. Many of those documents no longer exist within FEMA.
The following list excludes all documents requests that are for so-called facts, since documents that involve facts solely have already been produced or are being prepared for release once the Board finalizes contentions:
(1) Unredacted copies of all " Exercise Evaluation Critique Forms" See page 5 of County Motion (these documents are covered by ALAB-773).
(2) Unredacted copies of all " free play" message forms, includtng the i comments of evaluators during the exercise.
See page 5 of County Motion (These documents are being prepared for production).
(3) Unredacted copies of all controller logs See page 5 of County Motion (These documents are being prepared for production).
. (4) Unredacted copies of all simulator logs See page 5 of County Motion (These documents are being prepared for production).
(5) Urredacted copies of all observer logs See page 5 of County Motion (There are no observer logs).
(6) Evaluator and Team Leader summaries prepared on February 13, 1986, after the exercise, o-See page 5 of County Motion (These documents are not being released and are being sent to the Board for a determination of executive or deliberative privilege.)
(7) Drafts, underlying documentation and comments concerning the FEMA Report and evaluation of exercise results.
See page 5 of County Motion (These documents not being released are being sent to the Board for determination of executive or deliberative process privliege and if necessary in camera -
inspection).
(8) Evaluations upon which conclusions in the Report are based.
See page 16 of County Motion (These documents are not being produced under the executive or deliberative process privilege and are being sent to the Board for such determination and if necessary in camera inspection).
(9) Observations by FEMA representatives during the Exercise which led to FEMA conclusions.
See page 16 of County Motion (These documents are being sent to the Board for determination as to privilege.)
(10) Scope of exercise '
See page 16 of County Motion (These documents have been produced).
(11) Manner in which it (exercise) was conducted.
See page 16 of County Motion (To the extent this involves events the ' day of the exercise,the documents are being made ready for production).
(12) Exercise highlights summary narrative (approxinately I paragraph long from each evaluator). (To the extent these exist, they have been produced or are being made ready for production)..
See page 18 of County Motion
! (13) Summaries of " factual" observations and evaluations produced subsequent to the exercise.
See page 25 of County Motion (No such documents exist not already encompassed in other categories).
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. (14) Communications concerning what kinds of actions were expected to.
or did, constitute " satisfaction of particular objectives" either A. LDuring the exercise. (These documents are being produced).
B. During negotiation and finalization of exercise objectives.
(These documents have been produced).
C. During post-exercise consolidation of factual observations of exercise evaluators. These documents have not been produced but are being delivered to the Board for determination of executive or deliberative privilege and if necessary in camera review). s See page 33 of County Motion.
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(15) Documents or information relevant to the subject taatter of those contentions including communications priorm to or after the exercise .
concerning what activities were anticipated as appropriate or j inappropriate responses to particular items in the exercise ,
scenarlo.
- See page 33 of County Motion (Occuments prior to the exercise have been produced. Documents subsequent to the exercise are being sent to the Board for determination of executive or deliberative privilege or M camera inspection if necessary.)
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(16) How FEMA used data.
See page 40 of County Notion. (Documents have been sent to the Board for determination of executive or dellbarative privilege or in camera review if necessary.)- -
(17) What was intended in creating and modifying exercise objectives.
4 See page 40 of County Motion. (Dccuments have bean produced).
(18) What standards or criteria were used in determining whether exercise objectives were satisfied.
See page 40. (Documents in this category have been sent to the Scard for determination of executive or deliberative privilege or M camera review if necessary or are publicly available and have been produced.)
(19) How evaluators, or those who wrote FEMA paper applied those standards of critoria to the events which occurred on February 13, 1986.
See County Motion pages 40 and 46. .(These documents have been sent to the Board for determination of executive or deliberative privilege or if necessary M camera inspection or have been produced.)
Assuming that FEMA's response to the above categories of document-requests need further supplementation the following is offered: FEMA's production of documents can be categorized as follows:
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(1) Documents prior to June 20, 1985 are simply not relevant or material to this exercise litigation and have not been produced, although a partial index has been produced, and a complete index is being developed.
(2) Documents between June 20, 1985 and October 29, 1985 have been released, even though they could be chaiacterized as predecisional.
(3) Documents between October 29, 1985 and February 13, 1986, have been released even though not relevant or material to this proceeding.
(4) Documents that are factual only during the exercise on February 13, 1986 have been released.
(5) Documents that were produced post-exercise have not been produced
, with the exception of the March 12, April 7, and April 17, 1986, versions of the post exercise report assembled and printed by Argonne Lab. To the extent that the document request was and is continuing, all material post-exercise, even if not relevant and material unless specifically objected to has been and -
- will continue to be released. The objection to release of the post-exercise documents is based on the deliberative process, predecisional privilege embodied in ALAB-773.
Relying upon the executive " deliberative process" privilege embodied in 5 U.S.C. 6 552(b)(5) (1976) (hereinafter " Exemption 5"). Exemption 5 protects from disclosure " inter-agency or intra-agency memorandums or letterr which would not be available by law to a party other than an agency in litigation with an agency." Ld. The Courts have construed this exemption to exempt from _
disclosure documents which are protected from civil discovery under u.a executive, deliberative process privilege. EPA v. Mink, 410 U.S. 73, 93 S.Ct.
827, 35 L.Ed.2d 119 (1973); Coastal States Gas Corp. v. Department of Eneroy.
617 F.2d 854, 862 (D.C. Cir. 1980).
The deliberative process privilege exempts "all papers which reflect the agency's group thinking in the process of working out its policy and determining what its law shall be." NLRB v. Sears. Roebuck & Co., 421 U.S.
132, 153, (1975). King v. IRS, 684 F.2d 517, 519 (7th Cir. 1982). In order to be exempt, such documents must be both "predecisional," 1.e., generated before the adoption of agency policy or final agency decision, and l
" deliberative," 1.e., reflecting the give and take of the consultive process.
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King, 684 F.2d at 519; Coastal States, 617 F.2d at 866. "The exemption thus covers recommendations, draft documents, proposals, suggestions, and other l l
subjective documents which reflect the personal opinions of the writer rather than the policy of the agency." Id.
The deliberative process exemption has a number of purposes. It protects creative debate and candid consideration of alternatives within the decision-making body by assuring that all members feel free to provide the ultimate decision-maker with their uninhibited opinions and recommendations without fear of later being subject to public ridicule or criticism. Russell
- v. Department of the Air Force, 682 F.2d 1045, 1048 (D.C. Cir. 1982); Coastal States, 617 F.2d at 866. The privilege serves to protect enainst premature disclosure of proposed policies before they have been finally formulated or adopted. Russell, 682 F.2d at 1048; Coastal States, 617 F.2d at 866. It also serves to protect against confusing the issues or misleading the public by disseaination of documents suggesting reasons and rationalas for courses of action which were not in fact the ultimate reasons for the final decisions or -
actions taken. Coastal States, 617 F.2d at 866. As the U.S. Court of Appeals for the District of Columbia recently stated, the deliberative process privilege protects the integrity of the decision-making process itself by confirming that officials should be judged by what they have decided, "not for matters they considered before making up their minds." Russell, 682 F.2d at 1048 (citing Jordan v. United States Dept. of Justice, 591, F.2d 753, 772-3 (D.C. Cir. 1978)). All of these purposes militate against disclosure of the documents at issue.
All of the documents sought by Suffolk County were created by or for the use of members of the FEMA Regional Assistance Committee (hereinafter "RAC").
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In this instance, the RAC was convened to write the PEA for the Shoreham Nuclear Power Station emergency preparedness exercise and to prepare a report, subject to FEMA review, for transmission to the Nuclear Regulatory Commission. The PEA was the final product of tce RAC review. Each of the RAC members and evaluators provided input on the report to the RAC Chairperson.
The RAC chairperson had the authority to develop the final report, i.e.,
review, after consideration of the RAC members' views. It was within his sole discretion to decide whether and to what extent, to consider a particular RAC member's or evaluator's comments. In this case, all RAC members and the RAC Chairperson were able to arrive at a consensus concerning the final report.
Each of the documents sought by Suffolk County fall into one of the following categories: (1) individual comments on the plan provided for the RAC Chairperson's review; (2) personal notes and impressions of RAC members or evaluators for FEMA employees; (3) summaries of RAC member or evaluator comments; (4) non-final draf ts of documents developed by ANL for the RAC; and (5) documents prepared by RAC members and evaluators for consideration of the RAC in reviewing the exercise. All of these documents are of the type that are protected from disclosure by the deliberative process privilege.
As described in the County Motion the documents requested by Suffolk County are individual review documents of RAC members, consultants and FEMA staff provided to the RAC Chairperson. Many items are the notes and impressions'of FEMA employees for or concerning the RAC review. Such are considered to be intra-agency or inter-agency memorandums. Conoco. Inc. v.
United States Dept. of Justice, 687 F.2d 724, il7 (3rd Cir. 1982). These items clearly are predecisional. They were prepared for use in completing the final RAC report.
These notes contain the recommendations, proposals, suggestions and other comments reflecting the mental processes and personal opinions and positions of the writer rather than the policy of the agency. Such documents consistently have been held to be part of an agency's deliberative process and clearly privileged. See, Sears, 421 U.S. at 153, (the deliberative process privilege protects all papers which reflect the agency's group thinking);
Coastal States, 617 F.2d at 866 (the deliberative process privilege covers recommendations, proposals, suggestions and other documents reflecting the writer's opinion rather than agency policy); United States v. American Telephone and Telegraph Co., 524 F.Supp. 1381, 1386-87 (D.D.C. 1981) (evidence concerning mental processes of the FCC part of deliberative process and thus is privlieged). Thus, the items identified as having been sent to the Board are exempt from disclosure requirements and FEMA should not be required to produce them.
Items that are individual personal notes of the RAC members or FEMA employees regarding the exercise or any RAC meeting held on the exercise also are within the privliege. Many are notes seen only by the authors. Some items have been viewed only by its author and agency counsel. These notes were not created pursuant to any FEMA regulation or directive, or for distribution through normal agency channels. Rather, they are the property of the individual writers created solely for their own purposes. For example, they are used to refresh a writer's recollection, when helpful. Such personal, handwritten notes do not constitute agency records for purposes of 5 U.S.C { 552(b)(5); thus, disclosure cannot and should not be required. See British Airports Authority v. CAB, 531 F.Supp. 408, 415-16 (D.D.C. 1982)
(disclosure of such notes not required; Porter County Chapter of the Izaak
i Walton League. Inc. v. AEC, 380 F.Supp. 630, 633 (N.D. Ind. 1974) (individual AEC member notes prepared for own use in environmental review are not agency records and are protected from disclosure). i Summaries and comparisons of the RAC members' individual comments and considerations were prepared prior to the final RAC review and are clearly predecisional. To allow disclosure of these summaries, while preventing disclosure of the original documents, would defeat the purpose of the deliberative process privilege. These documents should be protected from disclosure on the same basis as items 1-19. Furthermore, disclosure of such compilations which permit inquiry into the mental processes of a group by revealing what factors were considered to be significant in reaching a proper decision, or how the factors were evaluated, is disallowed. Playboy Enterprises. Inc. v. Department of Justice. 677 F.2d 931, 936 (D.C. Cir.
1982). The same result applies here.
None of these items were final products. Rather, they were documents written before the final report. They, like the other documents at issue, reflect the agency "give and take" process leading up to the final review.
Such draft documents consistently have been held to the predecisional and exempted from disclosure. King, 684 F.2d at 519; See also Coastal States, 617 F.2d at 866, 868 (deliberative documents that are drafts of what will become a final document are exempt from disclosure).
The public interest in upholding the deliberative process privilege far outweighs the need for the information sought as evidence. The RAC members have indicated that disclosure of the documents sought would prevent them from providing uninhibite) opinions or recommendations in the future. If such disclosure were allowed, they could be subject to public ridicule and 1
i criticism, as well as to criticism from their employers. RAC members may not always have advocated popular positions. It is well-established that
[hluman experience teaches us that those who expect public dissemination of their remarks may well temper candor with i j a concern for appearances and for their own interest to ,
4 4 the detriment of the decision-making process.
]
! United States v. Nixon. 418 U.S. 683, 705, (1974); Coastal States, 617 F.2d l at 866. To release such documents has the clear potential of limiting the candid comments of the RAC members. Audio Technical Services v. Department of the Army, 487 F.Supp. 779, 783 (D.D.C. 1978). The cost of such an eventuality in terms of efficiency and quality of decision-making would be -
- great. M , Mead Data Central. Inc. v. U.S. Department of the Air Force, 575 F.2d. 932, 936 (D.C. Cir. 1978).
Furthermore, Suffolk County would suffer no prejudice as a result of withholding the sought documents. The final RAC report is available for Suffolk County's review. That final review speaks for itself. Accord American Telephone and Telegraph Co., 524 F.Supp. at 1387. The comments and drafts leading up to that review are irrelevant. M. The RAC members and the RAC Chairperson reached consensus on the final review. Further illumination thereof is unnecessary, especially given the harm that would result from disclosure of the documents at issue.
! Finally, preventing disclosure of the documents at issue in this case would not be a novel or unique result. The courts have protectea such documents prepared by or for groups similar to the RAC. In the Audio-Technical Services case, for example, the court found that the candid comments of the members of the evaluation and selection team, which had been convened to analyze and review technical proposals, were exempt from disclosure under the deliberative process privilege. 487 F.Supp. at 783.
Further, the United States Claims Court recently held that disclosure of the evaluation sheets and working papers of members of a Source Evaluation Board would h3ve a chilling effect upon the nature of the evaluation process.
Planning Research Corporation v. United States. 4 Cl.Ct. 283 (1983). Like the RAC, the SEB finally reached a consensus. The process of reaching a consensus was a dynamic one, "during which members' opinions . . . could, and did, change many times." If. The Court saw no reason to inquire into the process leading to the final decision given the adverse effect of such an inquiry. The same result is appropriate here.
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Because ALAB-773 speaks in terms of a weighing process with respect to the need to know of the party seeking production of documents of the deliberative process as opposed to the agency's need for confidentiality, some further discussion of FEMA's need for confidentiality is required. The other federal agencies that furnish members of the RAC are not reimbursed, nor is there any compensation for the RAC Members. The process was developed so that the full resources and existing expertise of the other agencies could be utilized without FEMA requiring additional duplicative resources and personnel. The documents generated by RAC member and evaluators before, during, and after the exercise are in the nature of work product as discussed and recognized both in ALAB-773 and in Long Island Lightina Company (Shoreham Nuclear Power Station, Unit 1), LPB-82-82, 16 NRC 1144 (1982). The segregation of fact from the deliberative process in the context of specific l document production is a difficult task. It makes no sense to have FEMA release its version of the facts in its PEA, and then to allow discovery of documents that as discussed previously were clearly predecisional. The Board l
should clearly rule that the determination of deficiencies and actions i
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subject to correction in the FEMA PEA were decisions, and Intervenors argument that no documents in this case are predecisional and therefore not subject to being protected by ALAB-773 analysis rejected. Clearly, the Intervenors need for facts has been more than accommodated by discovery to date and the only further purpose of document production is to discover the Individual opinions of RAC members and evaluators with respect to the ultimate collegial product, namely the PEA. The breadth of the document request that Intervenors seek to enforce by their Motion and its lack of specificity should be cause alone for its rejection. The need to preserve ,
the freedom of RAC members and evaluators to candidly analyze their observations, prior to, simultaneous with, and subsequent to the exercise outweighs the Intervenor need for " facts."
CONCLUSION FEMA respectfully requests the Board fully consider FEMA's request for a protective order based on the reasons stated in this Motion, and on the November 28, 1986 affidavit of Julius W. Becton, Jr. and enter an order (1) denying Intervenors request that the Board subpoena any non-witnesses; (2) denying the request to compel the testimony of Roger Kowleski prior to the Board's determination of admitted contentions; (3) denying the request to compel testimony of designated hearing witnesses or any other witnesses with respect to the pre-exercise and post exercise period; (4) and determining and
then denying the Intervenors requested further production of privileged documents as not being subject to release to any party in this proceeding.
Respectfully submitted, s
f 4..-. .
William R. Cumming Counsel for FEMA Dated November 28, 1986 Washington, D.C. ,;
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