ML20133B412

Request for NRC Views Re Guild 850619 FOIA Request for Documents About Safety Concerns of Employees at Facility & Applicants Objections to Disclosure.Response to Listed Questions Due by 850823.Served on 850805

ML20133B412
Person / Time
Site:	Harris
Issue date:	08/05/1985
From:	Kelley J Atomic Safety and Licensing Board Panel
To:
References
CON-#385-089, CON-#385-89 82-472-03-OL, 82-472-3-OL, OL, NUDOCS 8508060165
Download: ML20133B412 (4)

Text

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kbh UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION

ATOMIC SAFETY AND LICENSING BOARD SERVED AUG-5W Before Administrative Judges

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James L. Kelley, Chairman USNRC Dr. James H. Carpenter Glenn 0. Bright

'85 AUG -5 P3:47 In the Matter of OCNThs[E}j DocketNo.50-400MNCH j

CAROLINA POWER & LIGHT COMPANY (ASLBPNo. 82-472-03 OL) 1 and '

NORTH CAROLINA EASTERN MUNICIPAL POWER AGENCY )

(Shearon Harris Nuclear Plant)

)

l l REQUEST FOR NRC STAFF VIEWS ,

By letter dated June 19, 1985, Mr. Guild, Counsel for Mr. Eddleman, has asked for copies of certain documents under the Freedom of Information Act. The documents reflect certain efforts of the Applicants to obtain information about possible safety concerns of their employees at the Shearon Harris facility. The information was initially obtained under pledges of confidentiality from the Applicants to the employees. The Applicants responded in opposition to this request on July 9,1985, and Mr. Guild filed his response on July 26, 1985. The matter is before this Board for initial determination, pursuant to 10 CFR 9.15(a).

The Applicants have raised a number of objections to disclosure of these documents. However, our preliminary review of the pleadings

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indicates that the Applicants' threshold objections (pp. 4-13 of their Response) lack merit and that the pivotal question before us is whether ,

j the documents should be treated as exempt from disclosure under FOI Exemption 4 - " commercial . . . information obtained from a person and privileged or co'nfidential." 10 CFR 9.5(4). The information in question is, we think, " commercial" and it was "obtained from a person" c

-- the Applicants' Counsel . It remains to be determined whether this information is either " privileged" or " confidential".

Taking the second question first, under the case law documents are

" confidential" for Exemption 4 purposes if their disclosure --

is likely to have either of the following effects: (1) to impair the Government's ability to obtain necessary information in the future; or (2) to cause substantial harm to the competitive position of the person from whom the information was obtained.

National Parks and Conservation Assn. v. Morton, 498 F.2d 765, 770 (C.A.D.C. 1974). See Public Citizen Health Research Group v. FDA, 704 F.2d 1280, 1290-1291 (C.A.D.C. 1983); General Electric Co. v. USNRC, 750 F.2d 1394 (C.A. 7, 1984). Since there is no claim of competitive injury here, withholding of the documents in question as " confidential" under Exemption 4 could only be justified on the basis that disclosure would

" impair" the NRC's ability to obtain such information in the future ~.

' The Applicants suggest that such impainnent of the NRC's regulatory function would result from public disclosure of these documents (Response, n.15, n.3), but they make no attempt to demonstrate such a result, nor are they in a good position to assess the question. The m-----------_-_ . _ _ _

i answer to this " impairment" question is not self-evident, and the Board has no record basis for resolving it. Accordingly, the Board requests the Staff to provide responses to the following questions:

1. Are the documents in question here, and those of the type it represents, an important means by which the NRC obtains or might obtain safety information about nuclear facilities? c

2. Is the substance of such documents already required to be compiled and reported to NRC under an existing regulation or under quality assurance plans for particular facilities? Could compilation and disclosure of such information be required under a new regulation?

3. Is an enforceable pledge of confidentiality from the licensee to its employees, such that resulting reports are exempt from disclosure under the Freedom of Information Act, an essential element is having licensees generate useful documents of,the kind in question.

4. Taking into account the answers to the foregoing questions, and any other relevant factors, would an unrestricted grant of the l pending Freedom of Information Act request be likely to impair the NRC's

, ability to obtain safety information in the future? If so, should the request be granted under a protective order?

While our questions have some legal aspects, those aspects are subsidiary to our central concern: the Staff's best judgment of whether l

j disclosure of these documents would actually affect the availability of I

safety information, and the reasons therefor. Accordingly, we ask the Staff to provide their answers in affidavit form from an appropriate official or officials in the Office of Inspection and Enforcement. The i

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4 Board has a single copy of the disputed documents which we are providing to Counsel for the NRC Staff for Staff use.

These documents are to be returned with the Staff's response.

The Applicants rely primarily, not upon the " confidential" basis, but upon the alternative basis in Exemption 4 that the documents are

" privileged". Response at pp. 16-20. We do not reach that contention y at this juncture. We note, however, that the rationales underlying both the "sel f-evalua tive" privilege and the " impairment" theory of confidentiality are very similar, as indicated by the quotation from the Bredice case at p.17 of the Applicants' Response. Thus, the Staff's answers to the questions we have posed should have an important bearing on the privilege issue as well.

l The NRC Staff's responses are to be served by August 23, 1985. The Applicants and Mr. Guild may, if they choose, also file comments on l

those questions by the same date. i i FOR THE ATOMIC SAFETY AND LICENSING BOARD  !

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Ja@t L. Kelley, Chairman /

i ADMINISTRATIVE JUDGE l

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