ML22230A053
| ML22230A053 | |
| Person / Time | |
|---|---|
| Issue date: | 02/08/1978 |
| From: | NRC/OCM |
| To: | |
| References | |
| Tran-M780208 | |
| Download: ML22230A053 (54) | |
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ETURN TO SECRETARIAT RECORDS DISCLAIMER This is an unofficial transcript 01/~eti~ of thepited States Nuclear Regulatory Commission held on
, 4' 1 /e,7 in the Commission's offices at 1717 H Street, N. W., Washington, D. C.
The meeting was open to public attendance and observation.
This transcript has not been reviewed, corrected, or edited, and it may contain inaccuracies.
The transcript is intended solely for general informationa1 purposes.
As provided by 10 CFR 9. 103, it is not part of the fonnal or informal reco rd of decision of the matters discussed.
Expressions of opinion in this transcript do not necessarily reflect fina 1 determinations or beliefs.
No pleading or other paper may be filed with the Commission in any proceeding as the result of or addressed to any statement or arg~iment contained herein, except as the Commission may authorize.
- NUCLEAR REGULATORY COMMISSION IN THE MATTER OF:
PUBLIC MEETING DISCUSSION OF FOIA APPEALS FOR EICSB (McTIERNAN) REPOR'J~
AND CERTAIN OGC DOCUMENTS Place -
Date -
Washington~ D. C.
Wednesday, 8 February 1978 ACE - FEDERAL REPORTERS, INC.
Official Reporters 444 North Capitol Street Washington, D.C. 20001 NAT10NWIDE COVERAGE* DAILY Pages 1 -
52 Telephone:
(202) 347-3700
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25 UNITED STATES OF MERICA NUCLEAR REGULATORY COMMISSION PUBLIC MEETING DISCUSSION OF FOIA APPEALS FOR EICSB (McTIERNAN) REPORT AND CERTAIN OGC DOCUMENTS Room 1130 1717 H Str~et, N.W.
Washington, D.C.
Wednesday, February 8, 1978 1
The Commission met, pursuant to notice, at 2:40 p.m.
BEFORE:
DR. JOSEPH M. HENDRIE, Chairman VICTOR GILINSKY, Commissioner PETER BRADFORD, Commissioner RICHARDT. KENNEDY, Commissioner ALSO PRESENT:
J. NELSON
- w. DIRCKS T. ENGELHARDT D. DONOGHUE T. ROTHSCHILD
- o. ABSTON K. PEDERSEN
- s. CHILK
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CHAIRMAN HENDRIE:
The first thing -- Before this meeting gets started, the first thing I have to do is to ask my colleagues if they will join with me in voting to close this meeting under Exemption 6, and also perhaps 9(b) premature disclosures, but certainly Exemption 6 on personal information.
COMMISSIONER KENNEDY:
Before we do any voting, I would like counsel's explanation of why that's either*
appropriate or necessary.
MR. NELSON:
It is --
I don't know about "necessary," I think it is appropriate.
The proceeding involves the question of whether, and under what circumstances to produce documents which contain statements which people made about other people.
COMMISSIONER KENNEDY:
But we are not going to talk about the statements that people made about other people, except in that general sense.
MR. NELSON:
It was in that sense, and for that purpose, that I recognized the right to close portions of the meeting, in case someone wants to say:
What's it about'?
Give us an example?
What are the things we're recommending releasing?
To do that in the open could conceivably -- Well, it would certainly reveal the very material that you're deciding about.
And under the standard application of 9 (b),,
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there would be grounds to close the meeting.
If we want to discuss COMMISSIONER KENNEDY:
But I am still not clear as to why the discussion needs to proceed in that way to reach the conclusions which we are here to reach.
MR. NELSON:
Well, because when this meeting got planned, I didn't know we would be as far along the line toward potential agreement on some principles as I think WE!
are, Mr. Kennedy.
And if you're asking whether it's possible
~o do this as an open meeting, I think it is.
I think there may be a degree of convenience that some Commissioner might want to have an illustration of what the papers say, and in that event it would be appropriate to close COMMISSIONER KENNEDY:
But, but -- you know, closing for convenience, as I understand, is not contem-plated within the statute.
MR. NELSON:
The statute talks about the right to close when it is "likely that" something may happen.
COMMISSIONER KENNEDY:
That's different from "convenience."
MR. NELSON:
It defines "likely" -- It defines "likely" as: more than 50 percent.
(Laughter.)
MR. NELSON:
I don't want to be misunderstood as
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arguing for either opening or closing.
I don't care.
I don't think that the counsel for the requestor who are here in the room care very much about that..
I think that there are a couple of potential areas of agreement that we can discuss any old way.
I am just saying that, if'you want to close the meeting there is a legal basis to close it; if you don't want to close it, then open it.
COMMISSIONER GILINSKY:
Well, let's see.
I --
COMMISSIONER KENNEDY:
Now at least I understand.
MR. NELSON:
No problem.
COMMISSIONER GILINSKY:
Are we likely to get into material that --
MR. NELSON:
I would advise that, if we're in an open meeting and someone wants to give an example or an illustration,;6f
- the material, that you would then want to close that portion.
COMMISSIONER GILINSKY:
So, in any case, even if the meeting is closed, the transcript would be reviewed and parts which are releaseable would be released.
MR. NELSON:
And the parts that turned out not to be exempt would be released promptly, as the law requires.
COMMISSIONER KENNEDY:
When would that be?
What does "promptly".mean?
COMMISSIONER BRADFORD:
Monday afternoon.
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25 COMMISSIONER KENNEDY:
Of which week?
(Laughter.)
COMMISSIONER KENNEDY:
Any particular week?
CHAIRMAN HENDRIE:
Well, I assume every Monday afternoon.
COMMISSIONER KENNEDY:
It's only Wednesday.
- would that be, in your view, "promptly"?
MR. NELSON:
We will attempt to meet whatever schedule the Commission wishes to ascribe to release of the transcript.
COMMISSIONER KENNEDY:
Well, we need to have some definition of "promptly."
COMMISSIONER GILINSKY:
Well, why don't we adopt a policy on review and release of tran~cripts?
MR. NELSON:
Well, that's a matter that ought to be discussed at a meeting of the Nuclear Regulatory Commission, properly noticed under the Sunshine Act.
with that.
date.
COMMISSIONER KENNEDY:
I would certainly agree MR. NELSON:
That's certainly not happened today.
COMMISSIONER KENNEDY:
At the earliest possible COMMISSIONER GILINSKY:
I agree with that.
COMMISSIONER KENNEDY:
That would be a week from today, if I unders~and the noticing.requirements properly.
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MR. NELSON:
It can be less than that. It can be tomorrow, or immediately, if you think the agency business so requires an immediate discussion, then you can do it.
Put up a notice, and you can hold an open meeting and discuss Sunshine Act policy.
COMMISSIONER KENNEDY:
I would urge that we not do that, because that suggests an element of urgency when we've been dealing with this problem for many, many months, and only now does it seem to be a problem.
It would seem to me that the matter is so fundamental, and indeed it needs the appropriate kind of noticing -- that is, the kind of noticing that would give the widest possible dissemination that, it seems to me, was contemplated in the act when they provided "a week."
Is my reasoning wrong?
MR. NELSON:
Sure.
If the Commission wants to hold --
COMMISSIONER KENNEDY:
My reasoning is wrong, did you say?
(Laughter.)
MR. NELSON:
No, sir. If I said it was wrong, then I was as inarticulate as I seem to me these days.
If the Commission wants to meet on one week's notice in the open to discuss its policy about when it will release the transcript of closed meetings that turn out to
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25 be not to exempt, it may do so.
COMMISSIONER KENNEDY:
I would urge that we do so.
Indeed, I would recommend to the Chairman.that we do so a week from today, and notice it today.
CHAIRMAN HENDRIE:
I will have to look at it against the other things that are on the agenda for next week.
Let's see.
We'll be dealing 8
MR. NELSON:
Mr. Chairman, a lot of people came here -- some from private practice, some Bethesda.. -- to engage in a discussion of the extent to which certain documents ought to be released.
I don't think that any of them came here to hear discussions a~out the NRC's policy about release of transcripts of closed meetings, if I say so, with all due respect.
I am trying to get to Bethesda to conduct an interview COMMISSIONER KENNEDY:
Well, let me just suggest,,
counsel, you are out of line.
This Commission is in the business of dealing with the matter put before us, and indeed at the counsel's request.
Now, the matter is before us, and it's going to be discussed.
It seems wholly appropriate, and indeed essential, that the Commission decide, at the outset, as the
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25 Chairman already suggested and called for, whether the meeting is going to be closed or opened.
That's what the discussion is a.bout.
Now, if that is an inconvenience to you, I am sorry.
9 COMMISSIONER GILINSKY:
Well, let's see.
I think we have gone beyond that.
We are talking about next week's schedule.
MR. NELSON:
I think it has to do with whether there be a meeting to discuss the NRC's policy about when it will review the transcripts --
COMMISSIONER KENNEDY:
That was not a suggestion initiated by me, counsel.
I'd like to get back to what we did decide.
There will be a memo from me this afternoon on the other matter.
CHAIRMAN HENDRIE:
Let's please, if we may, turn to the question of closing the meeting.
COMMISSIONER KENNEDY:
I vote "no," Mr. Chairman.
CHAIRMAN HENDRIE:
It seems to me we ought just to go ahead and vote.
I will register a "no" for Mr. Kennedy.
COMMISSIONER BRADFORD:
Let me put it this way:
As far as anything I intend to bring up, I would vote "no."
But at the same* time, if anyb0dy intends to ask the kind of question Jerry would ask -- that Jerry had mentioned, as a
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25 hypothetical example, I would change tny vote out of recognition of that.
That is, I do think there is an appropriate area for cloture there.
10 Based on my own anticipation of the meeting, I'm not going to get into it so I'll vote "no," unless anyone else sees a reason to close.
CHAIRMAN HENDRIE:
All right.
Vick?.
COMMISSIONER GILINSKY:
I would vote to close, merely that we should not be precluded from bringing up any matters that would normally not be brought up in an open meeting, and the transcript will be reviewed and whatever is releaseable in whole or in part will be promptly released.
COMMISSIONER KENNEDY:
That would be grounds for closing every meeting.
COMMISSIONER GILINSK,Y:
No, I think this meeting is different.
CgAIRMAN H~NDEIE:
Let's see.
Peter, do you have the lead on this -- on this item?
Excuse me,
- Trip, I'm sorry.
I'm thinking of another endeavor.
MR. ROTHSCHILD:
I think Jerry was intending to start and then head up to Bethesda for an interview with Mr. Gossick.
CHAIRMAIJ HENDRIE:
Are we going to dig all that deeply into material that really shouldn't MR. ROTHSCHILD:
Hopefully not.
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25 11 CHAIRMZ\\N HENDRIE:
In that case, I will vote "no."
The meeting is declared to be an open meeting of this Commission.
Please proceed.
Jerry, do you have the kickoff?
MR. NELSON:
There ought to be a vote that --
short notice.
There was no seven-day notice of this meeting if it was to be an open meeting.
CHAIR..1\\'.lAN ':S:ENDRIE:
Do we need --
MR. CHILK:
You'll need a vote, if you decide to change it from a closed -- It has been announced as a closed meeting.
CHAIRMAN HENDRIE:
All right, we've voted down closure. I'll ask a short-notice vote to hold this meeting on short notice.
Those in favor?
COMMISSIONER KENNEDY:
Aye.
COMMISSIONER GILINSKY:
Aye.
COMMISSIONER BRADFORD:
Aye.
CHAIRMAN HENDRIE:
So ordered.
COMMISSIONER GILINSKY:
Actually, there's no practical difference between it being closed or open, since nobody can react to our notice.
MR. CHILK:
As it turns out, no one from the public is here,* and the transcript Are there members from the public outside?
Then invite them in.
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25 12 MR. NELSON:
The grievant might have wanted to come, other people.
CHAIRMAN HENDRIE:
Okay MR. NELSON:
May I make a suggestion?
A small, modest suggestion?
We were getting very far down in my office, until we came up here.
Let us try to reach a proposed agreement which we will submit to the Commission for the Commission's review.
Maybe there isn't a need for a meeting at all.. --
and I'm talking about OIA, staff, staff lawyers who are trying the grievance case, the grievant's own lawyers, and the Office of General Counsel.
COMMISSIONER BRADFORD:
Jerry, I -- Do I misunderstand the memo from Trip?
I thought there was an area of agreement.
MR. ROTHSCHILD:
We were reaching an area of agreement.
MR. NELSON:
We had -- The details remain to be pinned down; it's the principles that have been agreed upon.
And the details, we were trying to thrash out.
CHAIRMAN HENDRIE:
I had hoped, in fact I had heard that there was some progress in this direction, and I had hoped in fact that it would become an affirmation item rather than a subject for a Commission meeting.
MR. NELSON:
I had hoped. it could, Mr. Chairman..
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25 13 CHAIRMAN HENDRIE:
I have no objection to that procedure, but we'll please hear my colleagues on the subject.
COMMISSIONER KENNEDY:
I am now totally unclear as to what the purpose of our being at the table is.
I thought we were here to discuss something, at the request and recommendation of General Counsel.
Why are we here?
CHAIRMAN HENDRIE:
Presumably, because the course of negotiations which have not gone into cessation, because this meeting is cancelled, we've moved steadily toward it over the past couple of days -- presumably, because those negotiations have proceeded apace and we -- and the General Counse~ feels there may indeed be an appropriate middle ground between the views of the various officers within the Commission and the parties to the grievance, which would allow the Commission to be presented with a proposal --
COMMISSIONER KENNEDY:
Has that changed between the time we were voting to close the meeting and the time we voted not to do so?
I mean, I'm totally unclear as to what procedurally we're talking about right now.
We were sitting here because -
and talking about whether we should close the meeting or not -- because, in this discussion, matters might arise which really ought to be dealt with in the closed meeting.
CHAIRMAN HENDRIE:
It was perfectly
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25 14 COMMISSIONER KENNEDY:
We decided not to close the meeting --
CHAIRMAN HENDRIE:
It was perfectly --
COMMISS ImJER KENNEDY:
Now, the counsel says, we really don't need to have the meeting at all.
CHAIRMAN HENDRIE:
I'm sorry --
COMMISSIONER KENNEDY:
I'm completely confused.
CHAIRMAN HENDRIE:
Before we can open a meeting on this subject, since we hadn't voted to close it before, if it was to be closed the Commission had to meet in a.1.
non-meeting, in fact, and vote to close.
It had to come to that issue before the MR. NELSON:
I don't think that's what Mr. Kennedy's asking.
I think he is saying to me:
Why did you pull us in here for a meeting, and now you're telling us you don't need one?
COMMISSIONER KENNEDY:
That's what I'm asking.
MR. NELSON:
The answer is, Mr. Kennedy, that things change.
They don't remain precisely the same in all respects from day ~o day.
People started talking to each other.
They happened to all arrive at 1717 H Street today.
They happened to all end up in our law office --
COMMISSIONER KENNEDY:
Now, wait.
I understand that.
7
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25 splendid.
MR. NELSON:
-- and we started talking.
COMMISSIONER KENNEDY:
And I think that's MR. NELSON:
It began to look like we could 15 reach an agreement that we might submit to the Commission.
COMMISSIONER KENNEDY:
Well --
MR. NELSON:
It is my recommendation that you authorize us to try and reach such an agreement which we will submit to you as soon as it is drawn up.
COMMISSIONER KENNEDY:
I would be more than happy to do that.
That is not my question.
My question is:
Why did we have to go -- Why did we go through the exercise of talking about whether we should close or open the meeting, when in fact that's all you wanted the meeting to do?
MR. NELSON:
Well, I didn't know that until shortly on ago.
If you want somebody --
COMMISSIONER KENNEDY:
Do you mean during this meaing?
MR. N.ELSON:
I will take the blame.
COMMISSIONER KENNEDY:
Okay.
MR. NELSON:
Fine; it's my fault.
COMMISSIONER KENNEDY:
It's not "blame."
I'm just mystified.*
MR. NELSON:
I made a mii;,take.
I now think that
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25 16 there is real chance for progress in this matter, without tying up the Commission's time; and I make a recommendation to you that you have us try to draft up an agreement to be submitted to you for approval.
CHAIRMAN HENDRIE:
I certainly, for myself, think it preferable that the offices, and officers, and parties engaged in the discussions see if they cannot find a mutually satisfactory ground.
If it cannot be done, then the Commission inevitabl will have to decide, one way or another, on each of the matters at issue; but clearly, if there is a mutually satisfactory -- if there is an area of mutual agreement to be worked out, that is there the matter would preferably attend.
And I certainly would encourage it.
- Now, Mr. Kennedy says it's all right with him.
Commissioner Gil in sky?
COMMISSIONER KENNEDY:
Before we do, though, Gene, what's your view of all this?
MR. ABSTON:
I agree with Mr. Nelson.
We are pretty close.
In fact, *we tried desperately to cancel the meeting, as you may well know.
CO.MMISSIONER I<ENNEDY:
I did.. not.
MR. ABSTON:
Yes, sir.
But I think we do have a pretty firm agreement.
It's a comp~omise agreement.
No one's
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25 17 really happy with it, but it's the best, under the circumstances.
CHAIRMAN HENDRIE:
If the sum total on "happiness" in the matter can be fairly evenly distributed, that may be as close as we get to a reasonable ground in human affairs.
Vic, what's your --
COMMISSIONER GILINSKY:
Well, there is a point which I would like to discuss.
MR. ABSTON:
Let me interject one thing.
As I understand it, there is no disagreement between the general counsel and myself and ELD.
We are in agreement and also with the individual's attorneys involved.
As I understand it, we're pretty close.
There's just a few minor details --
MR. NELSON:
A couple of details.
MR. ABSTON:
-- a couple of details that we can work out on our own, if need be.
And I would suggest that we have probably got the best deal we could.
I mean, it's general counsel's taking all the hurt -- we sort of have it spread out.
Right now, OIA is taking most of it.
COMMISSIONER GILINSKY:
Well, but there are different kinds of "hurt," and I want to ask about that, if we can do that here.
MR. NELSON:
Why don't you ask, Commissioner, when you see the agreement? It might be premature to raise
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25 18 these issues right now.
COMMISSIONER KENNEDY:
But then it might -- we might --
MR. NELSON:
It might serve to --
COMMISSIONER KENNEDY:
We would then be told that, really, since the agreement had been completely worked out only after such exhaustive effort and at such extreme compromise on the part of all parties, that it would be presumptuous to overturn this; wouldn't we?
MR. NELSON:
I wouldn't tell you that.
I would tell you you could overturn it and do that.
CHAIRMAN HENDRIE:
-- start over.
MR. NELSON:
-- turn them out the door.
COMMISSIONER KENNEDY:
Well, no you wouldn't.
MR. NELSON:
Of course you've got the right to COMMISSIONER KENNEDY:
Of course you would say thati but you would urge us not to do so.
(Laughter.)
MR. NELSON:
I would urge you not to do so.
COMMISSIONER KENNEDY:
In the strongest possible terms.
Let's be realistic.
So, I guess I -- I don't see why not_ ask the question now.
If Commissioner Gilinsky has a question, it seems to me --
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25 19 MR. NELSON:
Well, indeed it may even guide us.
CHAIRMAN HENDRIE:
Let me first of all find Peter, what's your inclination in the matter, and then let us see what will --
COMMISSIONER BRADFORD:
I was in fact prepared to cancel the meeting on the basis of the suggested memo this morning, so I'm perfectly comfortable with that suggestion.
CHAIRMAN HENDRIE:
Okay.
Vic, why don't you go ahead and broach the subject, and if I may reserve the right to nudge you and suggest we terminate the conversation, if it looks as though you're beginning to prejudice this deliicate embryo of a compromise.
Okay?
Go ahead.
COMMISSIONER GILINSKY:
You certainly have that right.
(Laughter.).
CHAIRMA..~ HENDRIE:
I can always try.
COMMISS IO:rnR GI LINSKY:
Well, let me just tell you what my concern is. It is simply this:
That individuals who have agreed to interviews, have been promised confidentiality in these interviews, would have this confidentiality-respected.
And I understand that a number of these
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25 20 individuals have consented to release this, and I guess I would like to be sure that this is not as a result of any kind of pressure on the part of those who went to them because I think that would be unfortunate.
I would like to be assured that that is the case.
MR. ABSTON:
As I gather -- and the general counsel can correct me if I am wrong -- there's four individuals who have consented, voluntarily so to speak, to release their statements.
COMMISSIONER KENNEDY:
What does "voluntarily so to speak" mean?
CHAIRMAN HENDRIE:
Yes, I think that is precisely Commissioner Gilinsky's point.
MR. ABSTON:
Okay.
I can't address whether there was any pressure put on them, but from what I gather it was simply asked:
Do you have any objections?
MR. NELSON:
Who did the asking?
Do you know?
MR. ABSTON:
Someone on your staff.
MR. NELSON*:
Was that Bill Reamer?
MR. ABSTON:
Right; Reamer asked them.
MR. NELSON:
Well, why don't we get him up here.
CHAIRMAN HENDRIE:
Rather than -- Bill, just stay where you are.
MR. NELSON:
Bill, did you put pressure on these people?
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25 21 CHAIRMAN HENDRIE:
Just stay where you are.
(Laughter.)
MR. NELSON:
When did you stop beating your wife?
CHAIRMAN HENDRIE:
Let me I have full confidence that Bill didn't do anything undue, and so on.
Let me suggest the following.
It is a concern.
Employees who are asked by the inspector and auditor to talk in very frank terms, and with a promise of protection of full confidentiality, who then are in effect double-crossed by the agency that employs them, and presumably to whom they might feel some loyalty, I simply can't support that.
If we have to come to a time, in fact, when we can no longer assure individuals being interviewed of the confidentiality of their statements, then so be it. But my understanding is that in fact that promise has been extended on behalf of the agency in the past, and I think if we cannot honor those promises we have no right to expect people to be candid with us in the future.
MR. NELSON:
I don't want to argue this issue, because we'll be off a half an hour.
CHAIRMAN HENDRIE:
Okay, let me -- now, let me suggest simply --
COMMISSIONER KENNEDY:
Could I interject there, if I may before you leave that point, though, when you do
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25 22 take that half an hour -- because I would like to hear that discussion, counsel -- I wish you would take into account in the discussion the interest of the Congress in such matters when they are trying to legislate the very protection that we're talking about -- confidential informants.
So, I would like to see how all that works what works in some cases, not in others -- and I'd like to see what the differences are, and I'd like to understand them better.
Not now, but at some point in the future.
MR. NELSON:
As far as the releases in this case the consentual releases would it be an extra measure of protection if we obtained written consent to the release from those individuals?
CHAIRMAN HENDRIE:
I don't --
MR. NELSON:
Would that help assure the --
CHAIRMAN HENDRIE:
No, if you will all be calm and let me finish what I have to say, I'll get on to it.
I don't feel the need for them to yet further affirm the voluntary nature of their release.
What I would like you to do, however, is providing this agreement goes, and the names of people who do not agree are struck that the counsel's office go back to those people who have volunteered release, point out that others have said "no,"
and ask them, just quietly, once again, if they do indeed voluntarily release their statements in full; and give them
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25 23 the option, at that time once again, of striking their names if they so wish.
MR. NELSON:
vve will be glad to do that.
CHAIRMAN HENDRIE:
I think in this way it COMMISSIONER GILINSKY:
You know, why don't we CHAIRMAN HENDRIE:
-- provides a further check.
It seems fair to me, and I propose it to you.
COMMISSIONER KENNEDY:
One minor point, in this connection:
Do.they assuring that they understand that when their statement is being released, assuming that they voluntarily authorize that, that the names of parties which may have appeared in that statement will be deleted, as I understand this piece of paper.
COMMISSIONER GILINSKY:
Why don't we just delete those names, right off the bat?
COMMISSIONER KENNEDY:
It says:
"Deletions will be made to protect the privacy rights of others in their statements."
In the released statements.
MR. ROTHSCHILD:
That's in Part I.
The whole report would be made available to Mr. Bastekas and his attorneys with no deletions for the purpose of arguing relevance.
CHAIRMAN HENDRIE:
Wait.
Wait.
Wait.
If you tell me*-that a batch of you out there have made statements about me, and I'm saying "~*vho said that?
Who said that?
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25 24 Who are those guys?
What did they say?"
And you say, "Well, I'll let you see what they said, but you can't find out who it is."
Nevertheless -- and I can have those pieces of paper -- nevertheless, I can go over there and read the whole damn thing with the names on it:
1v'ili
- you please tell me what sort of an arrangement that is to protect confidentiality?
MR. NELSON:
Well, it's only as good as the attorney's word that signed the agreement, and a provision of the agreement would be that it may be a protective order, and that it may be filed in the grievance proceeding, and that all would consent to its enforcement by the Administrativ Law Judge, or by the Nuclear Regulatory Commission.
We were discussing words like that downstairs.
What that means is, as far as the lawyers are concerned, that if you catch them violating it they're in very serious trouble -- with the Agency, with the Bar Association, and so forth.
As for the grievant himself, if he's proven to have violated it, I suppose that's a matter that would have to be then considered.
CHAIRMAN HENDRIE:
When --
MR. NELSON:
In the last analysis, if you want the kind of agreement and protective order that would guarantee that nothing will ever happen, I don't know how
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25 25 that can be done, realistically, in the world.
MR. PEDERSON:
Mr. Chairman, with respect to confidentiality, isn't it confidentiality "from" the grievant that really concerns these people?
MR. ABSTOH:
Okay, it really boils down to two alternatives.
In other words, it's really almost criminal to promise people that you'll keep their statements confidential, but then you later permit someone else who has nothing whatsoever to do with the situation to view those statements.
I agree with you 100 percent1 it's going to be disastrous.
People are going to be upset, and they have a right to be upset.
Okay, now the alternative is to release the report under a protective agreement, that it won't be copied, discussed, or else -- and it would only be used -- that portion that has relevance to the grievance.
The alternative to that is to go into court, under the grievance, and maybe the whole report will be coming in ~s a part of the grievance hearing.
COMMISSIONER BRADFORD:
There is another side to this.
It isn't simply a matter of whether or not the agency can keep its promises to its employees.
I mean, of course we can do that.
But at the same time, I take it that employees in a situation in which they are transferred, or disciplined,
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25 26 or otherwise, have some right to understand the basis upon which that action was taken.
And we may have some problems with situations in which information was solicited on the basis of promises that perhaps were unwisely extended in the first place, given the framework of the employee's rights, so it isn't an easy matter of simply saying the NRC should keep its promises, and therefore the report is closed.
COMMISSIONER KENNEDY:
Here the problem, if I understand the situation correctly -- and I agree with that, Peter -- we obviously must bend over backwards to protect the rights of every individual.
Indeed, I think that's an obligation which we simply have to serve.
But as I und~rstand the problem here, it gets complicated by the fact that the investigation was done in a completely different context altogether. It wasn't intended at all as a measure leading to anything having to do with the move of the individual.
MR. ENGELHARDT:
And I think this is also important to bear in mind,-- that that document, as far as the staff is concerned, is not relevant to this grievance procedure at all.
Because it was not that document, nor was it that investi-gation, which led to the action of the Director of the Office of Administration in transferring this individual.
We are prepared, in order to clear the air, to
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25 27 assure people, and to assure the grievant~s attorney, and the grievant, that there was no basis for concern that this report served as any basis for the personnel action to make it available under appropriate arrangements.
But, if and when arguments are going to be made before this Hearing Examiner, the staff is going to reserve its right to object to whatever they feel is -- and in this case, a substantial portion if not all of it -- but object to it as being used as irrelevant to the grievance that is before this Hearing Examiner.
So we have an additional complication which poses a lot of problems:
'The original report was asked for under a Freedom of Information Act request.
It was asked for under the grievance, as well.
And we a-re here now in an effort to make an equitable arrangement to resolve the difficulty as to the availability of the report, and to avoid challenges, and to avoid suspicions that the report somehow was used as a basis for a grievance, to make it available by this mechanism which the general counsel has just been describing.
COMMISSIONER GILINSKY:
Now what is the --
MR. ENGELHARDT:
And I think it's important to know that distinction, as to what we think that report that we think the report is not relevant to this grievance.
COMMISSIONER GILINSKY:
What is the relation of
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25 28 these two requests?
You.' re acting here on the basis of the request under the grievance procedure?
MR. ENGELHARDT:
Well, the Freedom of Information Act request, and the grievance.
In other words, there are two things pending, and maybe the general counsel would like to discuss that aspect.
COMMISSIONER GILINSKY:
Now this would not.be released under the Freedom of Information Act.
MR. ENGELHARDT:
Well, the general counsel has staked out a position with regard to that aspect.
I believe you have already enunciated your views, in the communications with the Commission.
MR. NELSON:
Well, I feel, as I have said to the Commission, we don't care whether it's released under the label ~'FOI," or the label "grievance," provided the man gets a certain minimum that we think he's entitled to as a matter of fundamental merits.
MR. ABSTON:
But the Commission has denied the appeal, on several occasions, and I personally see no reason for not denying this appeal on an FOIA.
I think we're on good grounds on the FOIA.
MR. NELSON:
The agreement we've been talking about is more a grievance-type agreement.
It would deal with use in the grievance proceeding, and the protective conditions were being fashioned with an idea to look at that proceeding.
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25 MR. ENGELHARDT:
Now the Commission is not involved in the grievance.
The grievance is a matter between--
now, it's a matter before the Executive Director f~r Operations, who has designated or will designate it, with the agreement of the grievant's attorney, a hearing examiner I
from outside the Agency, who will collect the facts and who make a recommendation to the Executive Director for Operations with regard to the decision that was made by Mr. Donoghue in connection with the grievance -- the initial grievance.
Mr. Donoghue did not rely, in his action, on the content of that report, and has not had any bearing on his actions in dealing with the grievance.
So that the document, as far as we're concerned, has no relevance to the proceeding, at all.
And it could be dealt with under the -- as a straight Freedom of Information Act request, or as we are dealing with it here in an effort to clear the air and avoid suspicions that there is something here that is not the case, to make it available under very protective arrangements to assure that it has an absolute minimal distribution, dissemination, or availability, and to limit the availability to the attorney representing the grievant, and the grievant.
MR. ABSTON:
What was really unfortunate about the whole situation:
The individual concerned was not a part of
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25 30 the investigation.
He was deliberately excused from the investigation.
But in passing,, when we were talking to various people,i~~assing, his name was mentioned, I think, seven times, and we recorded it and it turned up in the report.
It was very minor, and he was really not a part of the investigation at all.
CHAIRMAN HENDRIE:
What was the subject of the investigation?
MR. ABSTON:
,The subject of the investigation was the problems in this one branch in the NRR, the Electrical Instrument Con:-trol Systems Branch.
MR. NELSON:
Certain personnel and organization matters specifically concerning the EICS Branch.
MR. ROTHSCHILD:
The problem arose was -- frankly, it was a letter,tha t Chairman Ro~der' sent to Congress on this matter, as a follow up to some hearings that were held on the subject,.and there was one l~ne ~hat in effect said that these transfers -- including the transfer of Mr. Bastekas was in part based on the McTiernan report. And in fact, the staff andOIA believed that was basically erroneous; that it may have been appropriate to transfer the other individual, but it was not applicable to the transfer of Mr. Bastekas.
The only problem is, now that you have gone and told Congress and made it a part of the record that this was relevant -- that you based his transfer in part upon that
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25 31 report -- it is very hard for the Agency now to deny everything, under both the grievance proceeding and/or under the FOIA and say this is not relevant at all to what is going on here -- which is in fact the case.
We don't believe it is relevant;:., and we don't believe the seven references are relevant. It's just that we have this one statement from the Chairman of the Commission.
That's the root of the whole problem.
MR. NELSON:
I wouldn't say that the seven references are not relevant -- I don't ~now whether one can argue that.
You have not only the Chairman, you have Mr.
Rusche who testified, quote, "As a final consideration of the matters raised in the OIA report, I announced a reorganization of the Division of Systems Safety aimed at improving the difficult human relations situation and the organizational effectiveness of the EICS Branch."
Mr.
Rowder's line, which is that the transfers of the grievant and another employee, quote, "were taken in response to an investigation by Mr. Thomas J. McTiernan, Director, Office of Inspections and Audit, into" --
COMMISSIONER BRADFORD:
Mr. Chairman MR. NELSON:
Now, having said that --
COMMISSIONER BRADFORD:
it was you, rather than me, that reserved the right to tug em a sleeve, and I'm not
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25 32 it's still Victor's sleeve that's appropriate, but I think maybe this meeting has run about as far as it usefully can without beginning to prejudice the possibility of the parties being able to work out an agreement.
MR. ABSTON:
It's either go to the mattress, or negotiate more; it's one or the other.
(Laughter.)
MR. ABSTON:
You either take a hard-nosed approach that we're not going to release anything under any circumstances and let the general counsel defend this in court --
MR. NELSON:
Thank you.
MR. ABSTON:
-- or at the Department of Justice, or we try to work oµt something that's acceptable to all the parties.
MR. ENGELHARDT:
But the arrangement that's being planned~- worked out in disclosing the report would, at least at this juncture, make available the names of individuals who were named under that report.
COMMISSIONER KENNEDY:
But under the protective order.
MR. ENGELHARDT:
Under the protective order.
B.ut under the protective order, the grievant's attorney would have the opportunity to further question those individuals named, and even call them as witnesses if he feels -- and
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25 33 the board -- the Hearing Examiner feels the issue is relevant to this particular grievance.
COMMISSIONER GILINSKY:
Let me understand, Tom.
This includes the interviews of persons who have not consented to the release of the interview?
MR. ABSTON:
May I clarify something?
There's two -- we're talking about two interviews.
We're talking about the report which contains the interviews; that's one set of interviews; there's 30 or 40 people involved.
The four individuals who have consented that their interviews be released are interviews that they gave to the general counsel's office and are not included in that report.
That's something altogether different.
Now that's what we had agreed to CHAIRMAN HENDRIE:
Well, now, we're talking here about individuals assured of confidentiality by your office.
MR. ABSTON:
Right; okay.
But, now -- we~re talking about the ones in the report, okay?
That's separate from the four that he's talking about in the paper.
Those were taken by the general counsel's office --
COMMISSIONER GILINSKY:
And those are relatively recent?
Is that the idea?
MR..ABSTON:
No, they were some time after our report.
I can't remember exactly when.
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25 MR. NELSON:
I can get the date.
COMMISSIONER GILINSKY:
Oh, so this antedates your arrival here, Jerry?
MR. NELSON:
Long antedates it, if I may say.
MR. ABSTON:
But it was --
34 COMMISSIONER KENNEDY:
I'm not sure what relevance that is.
MR. ABS'I'ON:
Well, the same individuals are involved, but they're different statements.
COMMISSIONER GILINSKY:
I was just trying to find out when that happened.
MR. ENGELHARDT:
Well, let me mention this:
As far as the so-called McTiernan report is concerned -- the report proper -- the proposal would be-to make that report, in toto, available under a protective arrangement to the attorney for the grievant and the grievant.
And they would then be able to make whatever arguments they can to the Hearing Examiner as to the relevance of that report, portions of that report, or interviews with individuals who are contained within that report, to the grievance.
And that is where we, in the Office of the _Executive Legal Director, would be prepared, as we see it, to argue that point.
COMMISSIONER GILINSKY:
Well, who represents the
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35 individuals who gave the interviews?
MR. ENGELHARDT:
They are not represented in this proceeding.
COMMISSIONER KENNEDY:
Tom, could I ask --
COMMISSIONER GILINSKY:
Well, who's looking out for their rights?
COMMISSIONER KENNEDY:
Well, that's sort of my question.
Could I just COMMISSIONER GILINSKY:
Sorry.
COMMISSIONER KENNEDY:
Following that precise point, Tom, I want to go back to something you said a moment ago to be sure I understand it.
If the report, which includes all of these interviews and everything else, is turned over to the Hearing Examiner, to the grievant and his attorneys, under the protective order, it then devolves upon the grievant and his attorneys to show relevance and prove it to the Hearing Examiner.
Having done that, any part which is shown to be relevant or agreed by the Hearing Examiner-~ to be ruled by the HeariJng Examiner to be relevant, is now fair game.
And indeed if that involves a part of an interview, that interviewee is then subject to call before the hearing as a witness~*
Is that correct?
MR. ENGELHARDT:
Correct~
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25 COMMISSIONER KENNEDY:
Even though he was not aware that indeed the confidentiality of his earlier interview had already been breached.
Is that correct?
understand what the actual situation would be.
I want to MR. ENGELHARDT:
That, I think, is a fair statement.
COMMISSIONER KENNEDY:
Okay, now that's the first question -- and I think that's part of what your concern is.
The. second part that I see as a possible concern is: In the effort to show relevance in the first instance, must this be done on the basis of the documents themselves?
Or, as to portions which the grievant and/or his attorneys are alleging would be relevant, is any portion of that then subject to testimony before the Hearing Examiner?
And, could one of the testifiers in the earlier report be called before the Hearing Examiner in the effort to seek relevance?
CHAIRMAN HENDRIE:
To establish relevance.
COMMISSIONER KENNEDY:
Yes, to establish relevance.
Could that be the case?
MR. ENGELHARDT:
It's possible.
CHAIRMAN HENDRIE:
Once the grievant and his attorney read the report and know the names of people who mentioned the grievant in the course of their interviews, those people are fair game to be called into the grievance proceedings by that side, in any event, aren't they whether the report is judged in any*sense relevant?
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25 37 MR. ENGELHARDT:
They could be CHAIRMAN HENDRIE:
So once the report is open before them, why those people are exposed; okay?
MR. ENGELHARDT:
Exactly.
CHAIRMAN HENDRIE:
- vell, I must say I have to ask, with Commissioner Gilinsky: Who is looking out for the rights of those members of the staff?
COMMISSIONER KENNEDY:
My question is the same.
MR. NELSON:
Well, you have a very putting my own prejudices to one side -- you have conflicting policies here.
There is no solution that is going to make --
COMMISSIONER KENNEDY:
'!vell, wait.
Could I use a different word than "policies"?
You know, I think it's more than policies, isn't it? It's equities.
MR. NELSON:
You have conflicting equities and claims --
CO:MMISSIONER KENNEDY:
That's right.
MR. NELSON:
to authenticity.
I can only tell you that, from a litigation viewpoint, matters are difficult; that the appearance has fairness problems; that perhaps these men should never have been given the kind of sweeping assurances they were given; or, perhaps once having been given, nobody should have embraced. this document in explaining the reassi_gnment of the grievant.
Pernaps mistakes were made aiong the way, but
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25 38 here we are.
One way that it is done with companies sometimes in the competitive area, where trade secrets are alleged and the government determines to release, is to give suf-ficient advance notice to enable the companies to obtain restraining orders against the release.
Now that's all right if you're talking about a big company with money, but if you're talking about the ordinary government employee, it's not too meaningful.
CHAIRMA~~ HENDRIE:
For ordinary employees, I don't find that --
MR. NELSON:
I don't know what to do.
This is a very, very tough conflict.
I could make a very flip and easy suggestion, and that is:
To find the manner or position that's acceptable to him, and let's move on.
I don't know that that --
MR. ABSTON:
I may interject one thing that might rest some of your fears.
The concerned individual knows exactly -- all the people involved.
- He knows all the individuals, all the staff members, all the branch chiefs, assistant directors.
COMMISSIONER KENl'JEDY:
They are personally known to him..
MR. ABSTON:
Right, yes.. So, they could call
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25 39 any of these witnesses, irregardless of anything else, cold.
So the mere fact that they had the access to the report, I doubt seriously would give him much insight as to --
MR. NELSON:
But they'd know what he said; that's the point.
MR. ABSTON:
Yes, but about somebody else.
MR. NELSON:
On the one hand, on want the confidentiality; you want management discretion.
On the other hand, you want fairness with the grievant.
MR. ABSTON:
It'll really be an absolute disaster to our office. It'll make our job a hundred times more difficult, and what's COMMISSIONER KENNEDY:
- vell, I would suggest it would make it essentially impossible in the terms that the office was created, and in the terms for which the office has stood under the "open door" policy and everything else since that creation.
MR. NELSON:
You could get all the statements.
All you have to do is not purport to transfer people on the strength of the sta~ernents.
COMMISSIONER KEN:mDY:
- vell, I don It think we --
MR. NELSON:
That's where it where the government can't have its cake and eat it, too.
COMMISSIONER I<ENNEDY:
Well, I agree with that.
I agree with it 100 percent; don't misunderstand.
You know,
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25 40 I believe the grievant has clear rights here which simply cannot, should not, must not be abridged.
They've got to be protected.
I understand that.
MR. ABSTON:
So, really, we're working with two things.
Under the FOIA, if the Commission denies the appeal, okay, we're on firm ground there.
Okay, what's released under the grievance under protective order will satisfy the individual involved, and probably satisfy the grievance in the public -- so there are merits on both sides.
MR. ENGELHARDT:
Yes, but we don't know what the reaction might be with regard to those who are named in the report.
We don't have any idea what their feelings might be in regard to our limited release.
COMMISSIONER KENNEDY:
Who are not "interviewees"--
MR. ENGELHARDT:
Who have not seen this report.
COMMISSIONER KENNEDY:
but whose names are mentioned by the people who are interviewed,. and who now do not even know that their names were mentioned in that report, you're saying.
MR. ENGELHARDT:
That's right.
MR. ABSTON:
Most of them are going to be highly upset.
You know, they're going to really be upset, and they're going to have the right to be.
And there's really no way that it'll tre kept secret.
Once the report goes to
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25 41 the Hearing Examiner and he releases it to the attorneys involved, the word will get out, and these people are goin9 to be highly incensed.
We're going to receiving all kinds of COMMISSIONER KENNEDY:
You mean, the "fact" that.
it has, not its content MR. ABSTON:
Right.
COMMISSIONER KENNEDY:
-- but simply the fact that this has happened.
Well, of course the fact will be --
MR. ABSTON:
And the only position that we can take is:
Look, you know, we defend under the FOIA; we promised you confidentiality to the extent that we possibly could under the grievance; it was released under the protective order --
MR. DONOGHUE:
But we're not legally compelled to release it in the grievance proceeding.
MR. NELSON:
Do you all know that there is an argument that the promise was broken?
COMMISSIONER KENNEDY:
~'ii'ha t promise?
MR. NELSON:
The promise of confidentiality.
The grievant's lawyers have submitted a memorandum -- which I don't know that I ever circulated beyond discussing -- in which they alleged that there was a circle of people, that the promise was made it wouldn't go*below that circle, or
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25 42 that line; that it did go below that line -- they allege.
YIR. ABSTON:
I can testify to the fact that it was investigated, and the allegations proved to be unfounded.
MR. NELSON:
Well, then in that case their allegation is incorrect, but there is an allegation being made and seriously pressed that the promises were broken, and that the statements were shown to somebody that wasn't in the original -- I have no idea about it.
COMMISSIONER KENNEDY:
Well, where does this leave us?
CHAIRNlAN HENDRIE:
Amply puzzled, is where I think it leaves us -- the conflicting --
MR. NELSON:
No purpose.
CHAIRMAN HENDRIE:
-- the rights and claims are clear.
Please tell me what, in fact, the law compels the Commission to do?
Or is that a matter of interpretation?
MR. NELSON:
Well, under the Freedom of Information Act, we have a request by a person for government records.
They have to be produced, unless they fall within one of nine exemptions.
They're not classified; that takes care of the first exemption.
They're not little, piddling detail in which no one could conceivably have any interest within the meaning of the Supreme Court's construction of the second.
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43 They're not covered by any particular statute, which is the meaning of the third.
They're not trade secrets of commercial or financial information, the fourth.
There may be some question about the fifth -- and I'll come back to that in a moment.
The sixth deals with records which may be with-held to protect against a clearly unwarranted invasion of personal privacy.
The case law there puts you directly into the task of weighing the interests of the requestor against the interests of those whose privacy is sought to be protected.
That may have something to do with this case.
They are not investigatory records compiled for law enforcement purposes, within the meaning of the seventh.
They have nothing to do with banks, or oil wells, so far as I know, so the eighth or ninth aren't invoked.
Therefore, you've got to produce the records, unless they are exempt under the fifth or sixth.
Exemptions are to be sparingly applied -- "rigorously applied" -- the thrust of the law of disclosure notwitholding.
COMMISSIONER GILINSKY:
What is the fifth?
MR. NELSON:
The fifth exemption literally has to do with that which you could not get in discovery if you were conducting a p.rivate lawsuit against the government.
It's confusing if you read it that way, but if you translate it into opinions, advice, recommendations made in the give and
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25 44 take of coming up with policy, you have the fifth exemption.
The FOIA also requires that "reasonably segregable portions" of exempt records be released.
That is, if the Agency has to go at and pull out the stuff that's not exempted, release that even if some stuff is exempt on the same page.
Now, the fifth exemption cases have generally laid down the rule that that which is purely factual is not covered by the fifth exemption.
And if one were to apply that kind of thinking, you would come out with the conclusion that the fifth exemption doesn't cover anything at all here, period.
And there is a case of witness statements given under the Unfair Labor Practice-National Labor Relations Act to support charges of unfair labor practices, where a court has so held.
We know for a fact that there is more than one case in the labor field ordering production of statements given by witnesses in support of unfair labor practice charges on the ground that they're purely factual.
On the other side of the coin are three cases.
One called "Brockway," and another one which follows Brockway.
Those have to do with the protectability of military* aircraft accident reports.
A legal system which, as-I recall, Commissioner
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25 45 Kennedy might refresh my recollection on this -- there are in effect two sets of accident reports:
one public, and one nonpublic.
The public one is a 9retty good fullsome discus-sion of what happened in the accident.
The nonpublic one is produced, by the strongest assurances of confidentiality, given in the interest of national defense, of national security, to attempt to find out everything in the world that might have gone wrong with that airplane at that time.
The courts have upheld the military -- specifi-cally a Navy case and an Air Force Case -- in protecting those kinds of _factual documents, because of the express need for the confidentiality in the national security and national defense sense.
The applicability COMMISSIONER KENNEDY:
Is this the Air Force case?
MR. NELSON:
The Air Force case, I think, is the Brockway case, Commissioner, and the Navy case is more recent.
The name of it is not in my head at this moment.
There is an Army IG case, decided here in the
-District Court, where that kind of protection was given to an Army IG report.
This is a one-judge, one-district-court opinion here in Washington, and that case we would want to cite on our side, as well, if we were purporting to withhold all of this.
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25 46 Now, I would say that the Army IG case facts, according to my friends in the Pentagon, involve civilian employees who were dissatisfied that they weren't getting cut in on the awards policy.
And an IG investigation was conducted of the extent to which people were getting a fair crack at the awards.
CHAIR.MEN HENDRIE:
Maybe you'd better send us a copy.
(Laughter.)
MR. NELSON:
That's a little bit different from a man who puts himself in the position of the grievant in this case, it seems to me.
So that I personally have very cautious feelings about overreliance on the Brockway line of cases.
I do not rule out that we could make a respectable legal argument.
We've said that in papers from our office, and I don't mean to degrade that argument.
I think it arises on a parti-cularly bad factual situation.
You have the grievant reassigned.
He doesn't like where he is.
There's some papers that eminate from high up that seem to show that this book had something to do with it, and we tell him:
Sorry, old fellow, you can't see those papers; on the strength of which -- or at least in part-because*of which, some people said you got trans-ferred.
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25 47 MR. PEDERSON:
Jerry, the view of the Justice Department on this would seem to be important.
Have they been talked to about our ability to defend this under FOIA?
MR. NELSON:
Yes.
They say that they are willing to defend this case under the FOIA; yes, sir.
That is my understanding from conversations with Bob Salischer.
MR. ABSTON:
Yes.
There's two separate things:
There's the FOIA, and the grievance; and they shouldn't be comingled.
Now, we have successfully defended not only this report but other investigative reports that gets hundreds and hundreds of requests.
And the Commission has gone along*
on the appeals, denying the appeals on Exemptions 5 and 6.
So, that's pretty well -- we're pretty well set on that.
Now, what you do under the grievance is something altogether different.
They shouldn't be comingled.
MR.r NELSON:
Well, I hear that argument that's being made by everybody except me.
(Laughter.)
MR. NELSON:
I think that there isn't a judge in the world that isn't going to comingle the two in its own mind.
I don't think we can look at these as two abstract compartments.
When these fellows walk i'n a district court in a
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25 48 Freedom of Information Act case, he's going to tell them exactly why he wants all this stuff.
COMMISSIONER KENNEDY:
Doesn't that depend upon what matter is put before the judge?
If the question is an abstract one as to the application of the Freedom of Information Act by the Commission, that's one thing.
But, if the question is the equities involved in the individual's grievance suit, and whether or not his rights and concerns have been properly protected, whether
- the guy got the information under the Freedom of Information Act or under his grievance procedure doesn't matter, so lon9 as --
MR. NELSON:
You're absolutely right.
CO:MMISSIONER KENNEDY:
-- in that case the judge felt that he ought to get it.
MR. NELSON:
Absolutely right.
COM!HSSIONER KENNEDY:
And in that case, Gene Abston's case is right.
MR. ABSTON:
Right.
Because if you give it to him under FOIA, then everybody else is entitled to it.
Not only that report, but every other report.
MR. NELSON:
If the fellow's sitting there with a bunch of documents that he got in the grievance proceeding litigating for him under a different label for the rest of them in the district court, we're in a much, much better
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25 49 posture.
That's not what I'm trying to disagree with.
I'm sorry I wasn't clear.
I was speaking to the notion that the two are inseparable boxes.
We can deny it in the FOIA case, ship them out to the grievance proceeding, and we'll never hear from them again.
That is a mistake.
It is my recommendation that we not do that.
Finally, let me say this.
Legally, under the Freedom of Information Act, the sixth exemption which does protect against "clearly unwarranted invasions of personal privacy" requires a balancing process between the conflicting interests the interests of the requestor and the interests of the person whose privacy is sought to be protected.
If that case law means anything at all, it seems to me to inevitably intrude the grievance proceeding and the equities into the kind of sixthf.exem"9tion determination that you would have to make for FOIA purposes.
So, I would have trouble in legally, saying that there are two separate boxes; and I have trouble in the real-world of litigation in saying there are two separate boxes.
If, however, he gets the papers in the grievance proceeding, I prom~se you won't hear from me again about this
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25 50 case.
(Laughter.)
MR. NELSON:
I don't care.
We can give it to him under any label.
My view is:
The man is entitled to something, as a matter of fundamental fairness.
Now, we can argue about the details -- how much, in what name, and all the rest and give him nothing.
It seems to me to be very bad law, and very bad policy in dealing with career employees.
I have said enough.
CHAIRMAN HENDRIE:
But we still find ourselves unable to reconcile that proposition with the equally reasonable one MR. NELSON:
Now that we know the --
CHAIRMAN HENDRIE:
that employees promised confidentiality are likely to be turned out.
MR. NELSON:
Well, there is an advantage in this exercise.
And that is, that the grievant's lawyers have heard all of this, and perhaps they can understand a little better what we've been dealing with in trying to talk with them, and the depth of the policies that are at stake.
COMMISSIONER KENNEDY:
And indeed it goes to the very heart of the open-door policy which we have repeatedly asserted as an underlying principle of the way this Commission is to function, which we.have assured the Congress
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25 51 over and over again we would give every impetus to.
Now there's an obvious conflict.
Let me say --
let me just be sure to close that on the note that I remain wholly mindful of the concerns we must have for the rights of the grievant; they must be protected.
MR. NELSON:
I can only suggest we try to go back to the drawing board, having heard the discussion and the seriousness of the Commission's concerns, and see if there is any workable way to do it.
Nothing would happen without your approval.
CHAIRMAN HENDRIE:
Since I don't have any better place to turn, I recommend that course to my colleagues.
COMMISSIONER-BRADFORD:
Good.
Let's cancel the meeting.
(Laughter.)
CHAIRMAN HENDRIE:
Or, maybe we could back and vote to close, now.
(Laughter.)
COMMISSIONER KENNEDY:
Let me say that I think that the meeting, in ventilating these issues a bit and getting them out so they can be discussed, has been extremely useful for my own thinking and I appreciate it.
MR. NELSON:
Very much so for us, too.
CHAIRMAN HENDRIE:
Okay.
Thank you very much.
The Commission may have a minute and a half, and then we
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25 52 will turn to the subject of the response to States of New York, Wisconsin, and Ohio.
(Whereupon, at 3:40 p.m., th~ ~earing was adjourned.)