ML20249C102

Discusses Issues W/Legal Implications Re Procedures to Be Followed by Incident Investigation Team

ML20249C102
Person / Time
Issue date:	08/14/1986
From:	Stephen Burns NRC OFFICE OF THE GENERAL COUNSEL (OGC)
To:	Lanning W NRC OFFICE FOR ANALYSIS & EVALUATION OF OPERATIONAL DATA (AEOD)
Shared Package
ML20249C099	List: IA-98-108, Notation Vote Response Sheet Approving W/Comments, SECY-85-255, OI Investigative Procedures Manual ML20249C098 ML20249C101 ML20249C102 ML20249C104 ML20249C105 ML20249C106 ML20249C111 ML20249C113 ML20249C116 ML20249C117 ML20249C118
References
FOIA-98-108 NUDOCS 9806260010
Download: ML20249C102 (5)

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, I.. j August 14, 1986 NOTE TO: Wayne Lanning, AEOD

SUBJECT:

ISSUES WITH LEGAL IMPLICATIONS REG ARDING THE PROCEDURES TO DE FOLLOWED BY THE INCIDENT INVESTIGATION TEAM Bob Freeman has requested some policy and legal guidance regarding a num-ber of issues which bear on the procedures to be followed by the Incident Investigation Team (llT). (See attached notes.) I hope that the following discussions of these issues is helpful and helps you meet your obligations to implement the llT Program Plan. This addresses all the issues in Bob's notes except the drug and alcohol testing question, on which we,'ll get beck to you in the near future.

Issue 1: Subpobna Power and Power to Administer Oath and Affirmation

1. Who is authorized?

2. When and under what conditions should it be used?

3. Who should the team leader contact to obtain subpoena power and administer oath?

At the staff level, the EDO, the Dir~'n" nf + % Offi s vi Inspedien-and gNc% .Enfay._ent and the Regional Administrator ized to issue subpoenas.

for each Under the current Region delegation Commission are , author-to

- 6 l30 the EDO, this authorization is not further delegable and, consequently.

- d the llT would need to request a subpoena from one of these agency offt-gy cials. Generally, the EDO has not issued subpoenas. Thus, eith. ;he DiretemiE-=4mcFdUdr=vnyufu1 c-1 Nr a Regional Administrator should t<Mh~tactea wnen a subpoena is sought. 1 M* Eacn of these officials also has the authority to administer oaths and can

~g further delegate that authority. Authority could be delegated by any of these officials to the IIT team leader who could then further delegate the

- authority to his staff. Such delegations and redelegations should be in

" w ritin g . Consideration could be given to having the authority to admin-ister oaths contained in the original charter setting up an IIT for a spe-cific incident.

When subpoenas and oaths should be used are essentially questions of I l Lw g.'e n i policy. Oaths are routinely administered to insure that individuals in-84 ,I,,M.herviewed properly of an oath may alsorecognize improvetheourgravity of the matter legal posture shouldand administration it appear ultimately ukd , that the individual who is the subject of the interview falsified his re-H O} sponses. Subpoena power is available to the agency to assist it in gath-ering information which is. reasonably related to our public health and '

safety mission. Consequently, whenever information is considered to be

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'i mportant and the individual refuses to either testify or to provide docu-mentary evidence, the use of a subpoena should be seriously considered.

Issue 2: Confidentiality l.- Who is aut'?rized to grant or deny confidentiality?

2. When and under chat conditions should it be granted?

3. Unde- what conditions abould it be denied?

4. hho should th e team icauer contact to obtain and grant confidentiality?

The issue of confidentiality is relatively complex and I recommend that you and, as a specific need arises, IIT team leaders consult the follow-ing documents with respect to issues that might arise in this area. By memorandum of November 27, 1985 for Regional Administrators and Office Directors from the Executive Director for Operations, a copy attached, the' EDO delegated authority to Regional Administrators and Office Direc-tors to grant confidentiality consistent with the Commission's Policy Statement on Confidentiality, 50 Fed. Reg. 48506 (November 25, 1985).

Additional extensive guidance regarding issues surrounding the grant, denial, or revocation of confidentiality is contained in the draft NRC Manual Chapter 0517, " Management of Allegations", which is currently Appendix 2, a copy attached, of that document is espe-ed cI- Wp4p being finalized.

cially relevant.

h00 k burrently, 3 t only the EDO, Regional . Administrators and Office Directors B/:,4e A,v Mpild those specifically delegated by th em may grant confidentiality.

LJ <ltl eydd Again, with respect to the authority to grant confidentiality, the initial g g

• charter establishing an llT team could delegate the authority to grant confidentiality to the team leader and authorize him to further redelegate that authority as he deems appropriate.

Issue 3: Drug and Alcohol Testing This issue will be addressed in n later note.

Issue 4: Explicit Guidance for Handling Interviews Considering the Case of:

,. Tape Recorders

QJt h 1. What if the interviewee refuses to be interviewed unless the inter-

• view is tape recorded?

P~l pM' 2. Who does the tape recording?

bd . . f.3 Who controls the tape?

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,' I This is essentially a policy issue that requires, on a case-by-case basis, ag balancing among the agency's' interest in obtaining promptly an interview, the agency's interest in maintaining control over the investi-

.< gation and conducting it through its standard practices, and the individ-ual's desire to protect his own interests. If an individual cannot be convinced that, in our view, his interest in having a complete and accu-rate record of the interview is protected adequately by having e tran-script made, his demand to tape the interview should be honored ordinarily to the extent that his demand does not undercut the efficacy of the interview process. In this regard, it is legitimate to explore with tne interviewee whether he intends to disseminate the tape or merely to maintain it for his personal use and why he believes it imperative that he tape the interview. You should also recall that in most instances the individual has not been subpoenaed by the Commission to testify and thus is not under legal compulsion to speak to the llT. I do note, how-ever, that* there is authority for the proposition that tl 7e agency can bar

'N tape recording in situations in which the agency has subpoenaed the "Ns individual and is making a transcript of the interview. See Securities &

3l,pg Exchange Commission v. Sprecher, 594 F.2d 317 (2d Cir.1979). If the IIT agrees to permit taping, it can offer to make the recording (presum-ing we have equipment available) and control the tape pending the con-clusion of the investigation or the IIT can allow the individual to make his own recording, which may be acceptable if the IIT is transcribing

- the interview in any event. Again, I advise dealing with this issue on a case-by-case basis in consultation with our office; we can help you de-velop more specific internal guidance if you desire. If we generally in-tend to rely on transcripts and to discourage taping, I would not include the possibility that taping would be permitted in the procedures that you intend to issue publicly as standard IIT practices.

Notetaking:

1. What is the policy on notetaking during an interview by the interviewee and the third party?

Again, a request of this type by an interviewee should be accommodated as it does not apparently undercut the efficacy of the interview process.

l /e4 kksm; In addition , there does not appear to be any authority for the i

I4' agency to ban notetaking during an interview if th e notes are for the individual's personal use.

With respect to both the tape recording of the interview and notetaking during the interview, while such practices may not be a concern per se,

, they could potentially be a concern if.the purpose behind creating a tape or creating notes was to spread the information around to others in-volved in the investigation and thereby taint subsequent interviews tak-en by the IIT. . If this a concern, the concern may dealt with in some fashion by requesting on the record during an interview that the party not share the information he has obtained during the interview, or any.

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r tape mfde or notes taken, with any other individual until the investiga-g tion has concluded. Jf such a representation is obtained, any violation h of that representation by an individual might sub}ect him to prosecution under the. provisions of 18 U.S.C. 51001. If such a representation is g,h reky

,t ro71 not obtained, there are currently no mechanisms in place to enforce ,3g- Ljep*

p ,Acal, questratiop , the legal term for nrnhibitin g an individual from sha_riQg friformation he obtained during an interview with others. Sequestration is noi opeUtricWprovided for under the Atomic Energy Act or Adminis-trative Procedure Act, and a further examination of those statutes and other relevant authority would be required before giving a definite opinion as to whether such a practice could be instituted. From a brief review, we are unaware of any agency which has such a rule. The Commodity Futures Trading Commission and the Securities and Exchange Commission have " sequestration" rules, 17 CFR $11.8 and $203.7(b), but

'they autho,rize nothing more than excluding potential witnesses from interviews. '

Third Party Attendance:

1. What is the policy to a request made by the licensee that utility lawyers be permitted to attend all interviews?

2. When does the IIT determine that an interviewee needs or wants

- representation (at the oeginning of an interview)?

p,N u 'o The general policy should be to exclude from an interview anyone other than the interviewee and his attorney or other personal representative,

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% q. OM.as provided in the draft !!T procedures on interviewing. The presence of utility lawyers could have a chilling effect on the interview and no lN g gd; compelling fairly clear, purpose appears to be served by their presence. Thus, it isas a W a *"d ^h such interviews. If an interviewee appears at an interview with another individual, it should be determined on the record at the beginning of the

-D/ interview what the status of that individual is. I would also suggest ex-pioring this issue with the interviewee if the opportunity arises before going on the record so the llT knows what it may expect to hear on the issue from the individual when the interview begins. If he is other than the individual's attorney or personal representative he should be asked to leave the interview and the interview should not resume until he has left. If the utility lawyer is present because he also represents the interviewee,, ,the guidance on multiple representation should be followed.

Issue 5: Preemption of Paralle) Investigations.

By a note of August 7,1986, Bob Freeman requested guidance regarding the authority of the IIT to preempt parallel investigations.

The sample Confirmatory Action Letter and Order that were incorporated in~ the IIT procedures attempt to address this issue by requiring the

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licensee to accommodate our efforts. The NRC has the authority to issue Orders to licensees to assist the NRC in carrying out its functions and to . proscribe conduct adversely affecting public health and safety. It is difficult to imagine any parallel investigation which could be conducted without the active support of. the licensee. Consequently, to the extent the facts warrant, the NRC could order a licensee- to cease supporting any parallel investigation, thereby obviating the IIT's concerns that its efforts are being impeded.

With respect to the investigative efforts of other NRC offices such as OI and OIA, only the Commission can direct that these offices halt their investigations- pending the completion of the IIT's works. If the unusual case arises of parallel, simultaneous investigations by the IIT, OI and OIA, reasonable efforts should be made to accommodate each office's Ie-gitimate investigative needs. You should note that there may be in-stances in, which other agencies, such as the FBI, may be conducting simultaneous investigations. Again , I would look at the issue in this sphere from the point of view of accommodating each other's legitimate interests rather then preempting the other investigation. I suggest you speak to 01 and OIA on this issue. I believe 01 may be helpful on the question of interface with DOJ and the FBI, as OI is the primary contact on those issues.

E v' Stephen G. Burns, Acting Assistant i General Counsel for Enforcement Office of the General Counsel Attachments:

As Stated cc: C. J. Heltemes, AEOD R. Freeman, AEOD DIST:

AGCE Rdr AGCE Subj SBurns Chron JLieberman Info RHoefling Chron KC/WP/LD/SC/DG Info

/

OFC Ap E. . . . . . . . . . :. AGCE . . . - _ _4(

,NAME : ly ! e' g et  : 3B ns  :  :  :  :

8/14/86  :  :  :

'DATE : 8 48  :