ML20244D591
| ML20244D591 | |
| Person / Time | |
|---|---|
| Issue date: | 11/19/1985 |
| From: | Chilk S NRC OFFICE OF THE SECRETARY (SECY) |
| To: | |
| Shared Package | |
| ML20235K715 | List: |
| References | |
| FOIA-87-467 NUDOCS 8512110154 | |
| Download: ML20244D591 (19) | |
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,', {/ , L NUCLEAR REGULATORY COMMISSION l Statement of Policy on Confidentiality AGENCY: Nuclear Regulatory Commission.
ACTION: Policy statement.
SUtelARY :
This statement presents the Commission's policy for protecting the identity of an individual who has been promised confidentiality. It provides details regarding the background It also of the development of this statement of policy.
explains the circumstances under which the NRC may grant confidentiality, and the manner and form in which confidenti-Finally, it will describe the circum -
ality will be granted.
stances and extent to which the identity of a confidential source may be divulged, and the circumstances under which a
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grant of confidentiality may be revoked.
EFFECTIVE DATE:
Richard P. Levi, Office of FOR FURTHER INFORMATION CONTACT:
the General Counsel, U.S. Nuclear Regulatory Commission, Washington, D.C. 20SS5 (202-634-3224).
SUPPLEMENTARY INFORMATION:
Introduction
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(f The Nuclear Regulatory Commission ("NRC" or " Commission")
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has decided to issue this Statement of Policy in order to The i provide a clear, agency-wide policy on confidentiality.
Commission's inspection and investigatory programs rely in Fot A-B'l- %1 7 W MIi
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i part on individuals voluntarily coming forward with information. Some individuals will come forward only if-they.
believe their' identities will be protected from public.disclo-f sure, i.e., only if they are given confidentiality. d j
Safeguarding the identities of confidential sources is I therefore a significant factor in ensuring the future l
voluntary flow of such information.
The commission through this Policy Statement, which applies to all NRC offices, intends to make clear that it will make its best efforts to protect the identity of a . ..
confidential source. As explained'in more detail below, the identity of a confidential source'will be divulged within the It will.be divulged-
.f NRC only to those with a need-to-know.
outside the NRC only in the following narrow situations:
(1) When a court orders such disclosure; (2) When required in NRC adjudicatory proceedings by order of the Commission itself; 4
(3) When a Federal or State agency requires the identity in furtherance of its statutory responsibilities and agrees to abide by the terms of the' Commission's confidentiality agreement, and the confidential j
source agrees to the release; if the source does not agree to the release, the identity of the source
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3 willLbe provided to another_ agency only in an-
. extraordinary case where the Commission itself~ finds l that furtherance of the public interest-requires such release; or (4) In response to a written Congressional request'and in accordance with item 3 of the Policy Statement.
This approach should protect the identity of confidential-sources except in a few, unusual situations. In those. situ-
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ations the' Commission will take whatever actions it can, . such as seeking a protective order, to limit disclosure to the I minimum extent necessary.
The following discussion provides details regarding the It background of the development of this Policy Statement.
also explains the circumstances under which the NRC may grant confidentiality, and the manner and form in which confidenti-ality will be granted. Finally, it will describe the circum-stances and extent to which the identity of a confidential source may be divulged, and the circumstances under which a grant of confidentiality may be revoked.
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Background
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The Commission created an Advisory Committee For Review of Investigation Policy on Rights of Licensee Employees'Under Investigation (hereinafter " Advisory Committee") on February f 4
25, 1983. One of the issues the Commission asked the Advisory-Committee to address concerned confidentiality.
The Advisory Committee, which submitted its report to the~
Commission on September 13, 1983, defined confidentiality as "the withholding from dissemination to the public ... of the name and other personal identifiers of certain individuals who The Advisory Commit-provide information to the Commission."
-( tee noted that a grant of confidentiality would be subject to certain limitations, e.a., the confidential source's name-or a hearing might be revealed to another agency, a court, board, or might be publicly released where the source acted in a manner inconsistent with the grant of confidentiality. The Advisory Committee recommended against granting confidential-ity to all interviewees because of the difficulty of imple-menting effective confidentiality agreements, and the an dif ficulties which grants of confidentiality might cause tc investigation or enforcement action. The Advisory Committ.ee also recommender,1 against adopting different policies for different types of interviewees, although it noted that the status of the interviewee may be a valid consideration in making a case-by-case determination on whether to grant I
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..n confidentiality. Finally, the Advisory Committee recommended that 'the Commission not normally grant. confidentiality in the absence of a request, and that:the NRC advise a witness.of the availability of confidentiality only where appropriate'in the judgment of the investigator.
The Department of Justice (DOJ) commented on the Advisory Committee's report on February 16, 1984. The DOJ agreed that the NRC should not have a blanket policy of granting confiden-tiality to every witness who requests it. The DOJ felt that l
' giving confidentiality would be most important in the case of ~ '~
l those who report'a violation, the existence of which is unknown to the NRC, while giving confidentiality would be
- f' least important for those who only confirm or corroborate a violation after the NRC has discovered the violation and the probable identity of those responsible. The DOJ felt that witnesses in a third category -- those who give leads to the NRC regarding how a.known violation occurred and/or who may have been responsible -- presented a. more difficult question.
The DOJ~then took issue with the limitations on grants of confidentiality suggested by the Advisory Committee. The DOJ stated that the possibility of disclosure of a confidential source's identity is "quite remote." The DOJ maintained that the NRC would not have to disclose a confidential source's identity to another public agency, and that an interviewee l should not necessarily be considered to have waived confiden-l-
tiality by providing information to another person which l
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1 contradicts what he/ she told the NRC. The DOJ'further, stated )
that a hearing board does not have the authority to compel
-k f disclosure'of a confidential source's identity,.and that'a- '
court would do so only under extremely rare. circumstances, ;
and, even then, under very restricted conditions. The DOJ concluded'that the NRC should assure anyone given confidentiality "of the ability and efforts available to i
4 protect his identity."
Policy Statement The Commission's investigative and inspection programs f rely in part on individuals coming . forward with-information about safety concerns or perceived wrongdoing. See, e.g.,
Union Electric Company (Callaway. Plant, Units 1 and 2),
ALAB-527, 9 NRC 126, 134 (1979). Public release of the identities of those who come forward with such information could lead to reprisals against those individuals. Reprisals h may involve not only physical harm to the individual, but may "take more subtle forms such as economic duress, blacklisting-or ostracism." In re United States, 565 F.2d 19, 22 (2d Cir.
1977), cert. denied sub nom. Bell v. Socialist Workers Party, 436 U.S. 962 (1978). See also Houston Lighting & Power Company (South Texas Project, Units 1 and 2), ALAB-639, 13 NRC 469 (1981). Such actions obviously would deter others from
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'o d 3-coming forward with information, and, accordingly, could jeopardize the effectiveness ofLthe NRC's activities.
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Both Congress'and the Commission have recognized this concern. Section 210:of the Energy Reorganization Act, 42 U.S.C. 58'51, and the Commission's regulations. implementing that section are designed to protect those who assist the NRC in carrying out its safety responsibilities from retaliation.
Similarly, the Commission's regulations' authorize the with-holding of the identities of confidential sources from public release. .10 CFR 2.744 (d) , 2.790 (a) (7) . .Further, Part 21'of
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the Commission's regulations provides'that, "as-authorized by
' law," the identity. of individuals "not subject to the regula-f tions in this part" who report certain nuclear safety-related.
problems "will be withheld from disclosure." 10 CFR 21.2.
The following discussion explains the Commission's general policy regarding confidentiality.
- 1. Circumstances under which confidentiality may be granted The Commission, while it recognizes the importance of confidentiality, does not believe that confidentiality should be granted to all individuals who provide information to the j
NRC, that it should be granted as a routine matter, or even )
that individuals should routinely be advised of its l 1
Rather, the availability prior to being interviewed.
t Commission believes that confidentiality should be granted only when necessary to acquire information related to the
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Commission's responsibilities, or when warranted by special
- circumstances. It should ordinarily not be granted, for.
instance, when the individual is willing to provide the information.without being given confidentiality.
This determination is based on several. considerations.
First, there is little purpose as a general matter in offering or granting confidentiality to someone who has not requested it. Indeed, such action could impede the free flow of information by implying that the witness needs confidentiality,'and could lead to difficulties in utilizing
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the information at a later' time in connection with an investigation or enforcement action. Second, it is essential
( to protect the identity of the confidential source to the utmost extent possible if confidentiality is granted.
Widespread grants of confidentiality would increase the likelihood that the identity of a confidential source would be inadvertently released. Third, the Advisory Committee was ,
1 aware of "no empirical evidence" indicating that widsspread grants of confidentiality might increase significantly the l flow of information to the Commission, a primary reason for j ever considering widespread grants.
The Commission recognizes, however, that some individuals who desire confidentiality may not request it because of an erroneous belief that the identities of all persons providing information to the NRC are kept in confidence, and some individuals may not provide information because they do not I
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know of the availability of confidentiality. While the Commission finds that its need to have the maximum possible use of information to carry out its responsibilities outweighs the potential benefits from routinely of fering or granting confidentiality, the Commission is concerned about those who may be harmed by their erroneous understanding of whether they have been given confidentiality, and about those who do not know of the availability of confidentiality.
The Commission has therefore decided to adopt a policy which requires an individual desiring confidentiality . .
explicitly to request it, but allows an authorized NRC employee to raise the issue of confidentiality in the absence f of a request in.certain circumstances, as follows. When it becomes apparent that an individual is not providing information because of a fear that his/her identity will be disclosed, an authorized NRC employee may raise the issue of confidentiality. Similarly, an authorized NRC employee may suggest confidentiality in the absence of a request when it is apparent from the surrounding circumstances that the witness wishes his/her identity to remain confidential. This could be the case, for instance, where a witness sets up an interview in a secretive manner. Because of the wide variety of possible circumstances here, however, the Commission cannot provide explicit guidance in this area, but must leave implementation of this policy to the discretion of the i
relevant NRC employees.
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The Commission also sees no reason to treat various +
groups differently in this regard. The purpose served by/
granting confidentiality may be more pronounced for one group A
than another, e.o., it may be more pronounced for employees who come to the NRC with evidence .)
of v olations unknown to the NRC than for those who caly confirm what the NRC al, read'y e knows. Again, the Commission does not believe ,it is possible to lay down any specific guidance in this area because of.the almost limitless diversity of possible's'ituations, and each request for confidentiality will have to be resolved on a case-by-case basis by an NRC employee authorized to grant -
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confidentiality.
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- 2. The manner and form in which confidentiality should <
be granted and disseminated within the NRC ,
The Commission has decided to allc4 the Director, Office of Investigations (OI), the Director, Of fice of Inspector 'and Auditor (OIA), and the Executive Director for Operations (EDO) to designate those persons within their organizations who(1will be authorized to grant confidentiality. Confidentiality will be granted only when an NRC employee authorized to grant confidentiality and the individual requesting confidentiality sign a standard NRC Confidentiality Agreeme:.t, unless it is
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impossible to sign th? Agreement at the time the information is obtained. The Agreement will explain the conditions to i
I which the NRC will adhere when it grants confidentiality, as
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i '/ In those circumstances set forth; in fafs Policy Statement.
i where i is impossible to sign a Confidentiality Agreement at the time'.he information is obtained, e.g., where the inforr2 tion .f.r obtained over the telephone, confidentiality 7
,7 may bd given orally pending signing of the Confidentiality
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? 4 agnsement, which must be done withyn a reasonable time.
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confidentiality is granted orally / t.his must be fully l r' I
documented by the person, granting it. If the Confidentiality i
f Agdeement in not signed within a reasonable time, the EDO, i
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Director, 01, or Director, OIA, as appropriate, will determine ..
whether the confidenti911ty should be continued.
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l Once confidentiality is granted, the individual's name
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should be divulged to NRC employees only on a need-to-know v y basis. Each NRC duployee with access to a confidential i
source's identity,sh3uld vvke all necessary steps to ensure that the identity is not Sh:ther disseminated. The Director, OI, the EDO, and the'Lirector, OIA are to ensure that
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censisant procedures. arr developed throughout the agency for implementing this requirement, which should prevent
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inad'vertent disclosures.' s j r0
- 3. >rces under which identity i <
Circu;as'(Tidential of a cor source will be divulged
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' The Commission stresses the importance which it attaches There to protecting the 4dentity of a confidential source.
l i a r 5 *, hoWever, four narrouj ciretpstances where the identity of i
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\g "n a confidential' source may,be rel' eased outside the NRC. The Xi '.B I E 4 Commission emphasizes that in'each of those cases the'Commis-sion.will' attempt to limit disclosure to the minimum neces-1 sary, and that it expects such disclosure to occur only-W .
rarely.
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(1) The first category involves disclosure pursuant to a
, court order. There are conceivable circumstances'where a n
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licensee or other entity could obtain a court order requiring 1 ,
the NRC to divulge the identity of a confidential source. If
. g-that happens, the NRC uill seek to keep the disclosure
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I 1 limited, through protective orders or otherwise,.to the minimum necessary.
( With regard to the standards used by a court in deciding
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whether to order disclosure, it is clear that "[w]here the disclosure of an informer's identity, or of the contents of his communications, is relevant and helpful.to'the defense of the accused, or is esse'ntial to a fair determination of a cause, the privilege must give way." Rov,iaro v. United States, 353 U.S. 53, 60-61 (1957). Thus, for instance, disclosure is in all likelihood required to ensure a fair trial in cases like Roviaro, where the informant played an active and crucirl role in the events underlying the potential u j
criminal or civil liability, or the licensing action. At the-l other extreno, where the informant is not an active partici-j i o p:2 n t , nut rather a mere tipster, disclosure would normally not i g bc_ required. The most difficult cases involve a third i
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13 I category, where the defendant may benefit from disclosure, but the Government claims a compelling'need to protect the infor-mant's identity. In those types of cases, the courts will balance the.importance of the informant's testimony to the defendant's case against the strength of the Government's interest in maintaining the informant's anonymity. See generally Suarez v. United States, 582 F.2d 1007 (1978).
(2) The second category of circumstances where a confidential source's identity might be' disclosed outside the NRC involves disclosure during an NRC adjudicatory proceeding.
While-a court, through its contempt powers, can enforce an order directing that the identity of a confidential source-be released, an adjudicatory board must issue a subpoena to obtain the identity of a confidential source, and must seek enforcement of the subpoena.in court. In this general sense, then, an NRC adjudicatory board does not have the authority to require that the identity of a confidential source be revealed, because it does not have contempt powers.
However, as a practical matter the Commission, as the ultimate adjudicatory authority within the NRC, can require the NRC staff to reveal a confidential source. The Commission in a separate Statement of Policy on Investigations, Inspec-tions, and Adjudicatory Proceedings has provided that any Licensing Board decision to order disclosure of the identity of a confidential source shall automatically be certified to the Commission for review. 49 FR 36032 (September 13, 1984).
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14 i i Therefore, the only adjudicatory board within.the NRC with the.
actual 1 authority to require that.the identity.of'a confidential source be revealed is the Commission. It is thus.
- appropriate l to provide some . general guidance on when the v Commission will require such disclosure.
The proper: approach for an adjudicatory board.in deciding whether to order disclosure is the same as that.for a court,_
i.e., it should follow the standards set forth in Roviaro and its progeny and balance the public interest in protecting the flow of information against a party's right to develop his/her . .
claim or defense. Whether that balance requires disclosure:
"must depend upon the particular circumstances of each case..." Roviaro, supra, 353 U.S. at 62. Factors to be' considered in making this determination include whether the.
information provided by the confidential source is reasonably available through alternative means, whether it relates directly to the substantive allegations at issue in the proceeding, what the present employment position of the confidential source is, whether a party's right to present rebuttal evidence or to conduct cross-examination will be violated if he/she is not provided the names, and whether disclosure is necessary to complete the record. After consid-ering the relevant factors, the Commission will order release only if necessary under the standards set forth in Roviaro and its progeny. The Commission notes in this regard that, unlike
( in the case of a criminal prosecution, the NRC may not have
. 1 15 the option of dismissing a case to avoid disclosing a confi-dential source, as, for instance, where the identity of the source is material and relevant to a substantial safety issue or a licensing proceeding.
(3) The third area where the identity of a confidential I l
source might be released is in response to a request by j l
Congress. Section 303 of the Atomic Energy Act requires the l
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1 NRC to keep the Congressional committees with jurisdiction over the NRC " fully and currently informed with respect to the activities ... of the Commission." That section also requires
"[a]ny Government agency [to} furnish any information requested by [ Congressional) committees with appropriate
( jurisdiction...." The Commission accordingly may have to release the identity of a confidential source in response to a Congressional request. While any such request'will be handled on an individual case-by-case basis, the Commission will disclose the identity of a confidential source only if the request is in writing and it will make its best efforts to have any such disclosure limited to the extent possible.
(4) The fourth area where a confidential source may be revealed is in response to a request from a Federal or State agency. The Commission recognizes its responsibility to assist other agencies in their functions. However, the ;
Commission also recognizes that providing the identities of confidential sources to other agencies could adversely affect I
the flow of information to the Commission. The Commission has
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l i-decided to balance these two considerations as follows. If the other agency demonstrates that it requires the identity in furtherance of its statutory responsibilities and it agrees to provide the same projections to the source's identity that the NRC promised when it granted confidentiality, the NRC will make a reasonable effort to contact the source to determine if he/she objects to the release. If the source can be reached and does not object, the EDO or his designee, or the Directors of OI or OIA, are authorized to provide that identity to the other agency. _ . .
If the source objects to the release of his/her identity, or cannot be reached, however, the EDO or his designee, or the
( Directors of OI or OIA, may not release the source's identity, but shall advise the other agency of the source's objection or that he/she cannot be reached. That agency may then request the Commission itself to release the identity. While ordinarily the source's identity will not be provided to another agency over the source's objection or without contacting him/her, in extraordinary circumstances where furtherance of the public interest requires release the Commission may release the identity of a confidential source to another agency over the objections of that source or without being able to contact him/her. Even in those cases, l
however, the other agency must agree to provide the same l
projections to the source's identity that were promised by the g
NRC.
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- 4. Circumstances under which confidentiality may be revoked A decision to revoke a grant of confidentiality can only be made by (1) the Commission itself, (2) the EDO, (3) the
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Director, OI, or (4) the Director, OIA. In each case, only the office which originally granted confidentiality can revoke that grant, except that the Commission may revoke a grant i given by any office.
I The Commission emphasizes, however, that a grant of '
confidentiality will be revoked only in the most extreme cases. As a general matter, confidentiality will be revoked - -
only where a confidential source personally. takes some action so inconsistent with the grant of confidentiality that the
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action overrides the purpose behind the confidentiality. This can happen, for instance, when the source reveals in a public forum the same information he/she gave to the NRC, or when he/she has intentionally provided false information to the NRC. Before revoking confidentiality, the Commission will attempt to notify the confidential source of its intent and provide him/her an opportunity to explain why such action should not be taken.
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- 5. Conclusion In sum, the Commission views grants of confidentiality as I an important adjunct to the Commission's investigative and inspection programs. The Commission therefore places great
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- L emphasis'on' protecting.the identity of. individuals granted confidentiality. However,.the Commission recognizes that-there ' are limited circumstances, . as explained above, where the identity of a confidential source will be divulged outside the s
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3 19 NRC. In those circumstances.the Commission will attempt to limit disclosure to the minimum extent possible.1 Dated at Washington, D.C., this[ dayoff(,h ,
1985.
For the Nuclear Regulatory Commission.
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/V " SAMOEL J N HILK, '
Secretary of de Commission.
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( l The Commission recognizes that individuals providing information to the NRC may have privacy concerns even if they do not request confidentiality. The Commission intends also to protect those concerns.
When the NRC makes an investigation or inspection report public, either in response to a request or on its own initiative, it will normally make its best efforts to delete names and identifying details of those reporting a health and safety concern, common defense and security concern, or other similar concern to the NRC. It will similarly delete names and i identifying details of those who have been identified by an i alleger as potentially having such information. In making these deletions, the Commission will only withhold those names and identifying details which it could withhold under applicable law l in responding to-a request for that information. In this !
manner, those who have not requested confidentiality will still !
have some measure of protection against public dissemination of their identities.
However, this policy, which does not impact on other deletions which might be made under applicable 'aw, is not binding. The agency may decide not to follow this policy in a case where countervailing considerations require disclosure, and the policy also will not apply where the source of the information is already publicly known.
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