ML20072H551
| ML20072H551 | |
| Person / Time | |
|---|---|
| Site: | Midland |
| Issue date: | 06/27/1983 |
| From: | Karr J GOVERNMENT ACCOUNTABILITY PROJECT, KARR & LYONS |
| To: | Atomic Safety and Licensing Board Panel |
| Shared Package | |
| ML20072H553 | List: |
| References | |
| 78-389-03-OL, 78-389-3-OL, 80-429-02-SP, 80-429-2-SP, ISSUANCES-OL, ISSUANCES-OM, ISSUANCES-SP, NUDOCS 8306290530 | |
| Download: ML20072H551 (13) | |
Text
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' UNITED STATES OF AMERICA /' '
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NUCLEAR REGULATORY COMMISSION .
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Before the Atomic Safety and Licensinc Boa 4 JUN 2 719e3~. d ,
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) ASLBP Nos. 78-389-03 0 4 In the Matter of: ) 80-429-02 SP
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CONSUMERS POWER COMPANY ) Docket Nos. 50-329 OL
) 50-330 OL (Midland Plant, Units 1 and 2) ) 50-329 OM
) 50-330 OM
)
MOTION TO QUASli SUBPOENAS Come now Louis Clark, Thomas Devine, Billie Pirner Garde and Lucy Hallberg, through their counsel, and for the reasons stated below, move for an order pursuant to the provisions of 10 C FR Sec. 2.720(f) quashing subpoenas commanding them to testify upon deposition in the above-captioned proceeding.
I. Factual Background Mr. Clark, Mr. Devine, Ms. Garde and Ms. Itallberg are all affiliated with the Government Accountability Project (hereaf ter, "GA P"or " Project") of the Institute for Policy Studies, a private, non-profit organization located in Washington, D.C. Mr. Clark is GA P's Executive Director; Mr. Devine is the Project's Legal Director; Ms. Garde is Director of GAP's Citizens Clinic for Government Account-ability (hereafter, " Citizens Clinic"); and Ms. Hallberg is G AP's representative in the State of Michigan.1/
Among other activities, GAP offers assistance to public and private employees, private citizens and community-oriented groups who pursue illegal, wasteful,
' improper or negligent actions by government or corporate bodies.2/ In June,1980, KARR & LYONS WOSWNGTON D C 20005
.re IEn.. l./ See Affidavit of Louis Clark, paras. I and 2. Mr. Clark's affidavit is attached hereto as Exhibit A.
-2/ l_d_. , pa ra . 4 G
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GAP was approached by a whistleblower who had been dismi ssed from his employment at the Zimmer nuclear power plant in Moscow, Ohio. 3/ As a consequence of the Project's ensuing the success in assisting this whistleblower and others in exposing serious safety problems at the Zimmer plant,4/ GAP began to receive requests for assistance with nuclear power safety problems from many other ci tizens groups and whistleblowers. 5 Among those citizens organizations were groups located in Midland, Michigan, who had been contacted by a number of whistleblowers at the Midland nuclear power plant 6. /
The Midland citizens groups did not know how to assist the whistleblowers; consequently, they sought advice f rom GAP's Citizens Clinic. 7/ GAP asked the citizens organizations to provide the Project with as much information as possible about alleg-ed safety problems at the Midland plant, and after it became convinced that the problems were serious, GAP agreed to assist the whistleblowers who had contacted the Midland citizens groups about plant safety problems. 8/ Thereaf ter, GAP submitted six affidavits to the Nuclear Regulatory Commission (hereaf ter, "NRC" or " Commission")
prepared by persons who believe that there are major safety problems at the Midland plant. E With only one exception, all of the Midland affiants requested that their 3/
- Id . , pa ra . 7.
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- I d . , para .10.
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KARR & LYONS asHiNGTON D C. 20005 8[ .
s702s737 3544 9/
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information be supplied to the NRC on a confidential basis.10/ Accordingly, G AP sought and obtained a guarantee from the Commission that the agency would protect the anonymity of these affiants. E Nevertheless, despite the Commission's promise of confidentiality, Consumer's Power Company (hereafter, " Company") now proposes to depose four GAP staff members to determine the ideniities of the Midland whistleblowers. Indeed, any Company prostestation to the contrary is belied by the Schedule of Documents Request-ed which was attached to the subpoenas duces tecum served on Mr. Clark, Mr. Devine, Ms. Garde and Ms. Hallberg. The subpoenas command each of them to produce for the Comoany's inspection:
- 1. All statements and/or affidavits given by the deponent to any person or entity relating in any way to Zack Company, to Consumers Power Company or to quality control / quality assurance for Consumers' Midland Nuclear Power Plant .
- 2. All documents relating in any way to Zack Company, to Consumers Power Company or to quality control / quality assurance for Consumers' Nidland Nuclear Power Plant.
The Schedule of Documents Requesteo, with its blunderbuss demand for production of G AP's entire files on the Midlar.d controversy (including the six confidential affidavits;,
thus makes the Company's purposes plain beyond peradventure: the Company means to expose the identities of the whistleblowers assisted by GAP (and, at least to this juncture, shielded by the Commission); and by so doing, the Company intends to deter all other potential whistleblowers from coming forward with future relevations which might be damaging to the Company.
For the reasons next discussed, the Commission must conclude that the KARR & LYONS E Y b S'
- WoSHtNGTON O C 2000S aca, w ssu
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11 /
- Id. , para. 8 and Attachment 1.
_4 II. The Company's Subpoenas Arc in Violation Of The First Amendment To The Constitution Of The United States, it is clear that compliance with the Company's subpoenas would necessarily have a chilling effect on the Midland whistleblowers' exercise of their First Amendment right "to petition the government for a redress of grievances."E There can be no doubt that, as the Supreme Court has stated, "the rights to assemble peacefully and to petition for redress of grievances are among the most precious of the liberties safeguarded by the Bill of Rights." United Mine Workers of America v. Illinois State Bar As sociation, 389 U. S. 217, 222 (1967). Indeed, the Supreme Court has held that the right to petition the government is so important an element in the struc ture of our representat ive democracy that exercise of that right provides a shield against imposition of liability for activities in restraint of trade under the Sherman Act. Eastern Railroad Conference v. Noerr Motor Freight, Inc. , 365 U . S .127 (1961). Moreover, in United Mine Workers of America v. Pennington, 381 U.S.
657 (1965), the Court noted that the Petitioning Clause" shields from the Sherman Act a concerted effort to influence public officials regardless of intent or purpose." Id. at 670 .
And in California Motor Transport Co. v. Trucking Unlimited, 404 U. S. 508 (1972), the Court noted that "[t]he same philosophy governs the approach of citizens or groups of them to administrative agencies. ..and to courts, the third branch of Government.
l Certainly, the right to petition extends to all departments of the Government." Id. at l
510 .
Other courts have consistently held that exercise of the right to petition provides a defense of absolute privilege to allegations of interference with contractual o\000, relations, State of Missouri v. NOW, 467 F. Supp. 289 (W. D. Mo.1979), aff'd 620 F.
s2021 737 3544
-12Id/ . , pa ra s . 8, 9 and 12.
l
c 1301 (8th Cir.), cert. denied, 449 U. S. 842 (19S0); tortious business interference, Sierra Club v. Butz, 349 F. Supp. 934 (N.D. Cal.1972); and defamatien, Sherrard
- v. llull, 456 A. 2d 59 (Md. App.1983); Webb v. Fury, 282 S. E. 28 (W. Va.1981).
See also, Gorman Towers,Inc. v. Bogoslavsky, 626 F. 2d 607 (3rd Cir.1980); Stern
- v. United States Gypsum, Inc., 547 F. 2d 1329 (7th Cir.1977); Sawmill Products, Inc.
- v. Town of Cicero, 477 F. Supp. 636 (N. D.111.1979); weiss v. Willow Tree Civic Association , 467 F. Supp. 803 (S. D. N . Y.1979); Aknin v. Phillips, 404 F. Supp.
1150 (S . D. N . Y .1975).
The right to petition the government for redress of grievances is closely association allied to the right of / and the freedom of speech and the press, which are also protected by the First Amendment. It has long been recognized that compelled dis-closure of confidential news sources has a chilling effect on effective exercise of freedom of the press. See e.g. , Baker v. F&F Investment, 470 F. 2d 778 (2d Cir.
1972), cert. denied, 414 U. S. 966 (1973); cervantes v. Time, Inc. 464 F. 2d 986 (8th Cir.1972). No less important is the right of members of associations to keep confidential their affiliation with any group. In N A ACP v. Alabama , 357 U. S. 449 (1958), the Supreme Court remarked that "li]n the domain of these indispensable liberties, whether of speech, press, or association, the decisions of this Court recog-nize that abridgement of such rights, even .though unintended, may inevitably follow from varied forms of governmental action." 13/ Id. at 461 (emphasis supplied). The Court went on to point out that "[ilt is hardly a novel perception that compelled dis-closure of affiliation with groups engaged in advocacy may constitute as effective a restraint on freedom of association as [other] forms of governmental action. . . ." I d_.
KARR & LYONS
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In the instant matter, movants do not contend that the NRC intended to 2o2' m n u abridge First Amendment rights when it gcanted the Company's application to issue the l
subpoenas at issue; rather, the gist of movants' contention is simply that First Amend-ment violations will be the incluctable consequence of compliance with the subpoenas, even though unintended by the Commission. (Footnote centinued on p. 6.)
l at 462. The pertinence of this observation to the subpoenas at issue here is evident.
As a practical matter, the disclosures required by the Company's subpoenas would destroy GAP's effectiveness as a conduit of vital information from concerned citizens l to various agencies of government and thus demolish the right of citizens acting through GAP to petition the government for redress of grievances.
In a rec (nt case involving the assertion of a First Amendment claim 1
of privilege against a discovery order, the United States Court of Appeals for the District of Columbia Circuit articulated the considerations that should govern any decision on this question:
l Balancing one party's First Amendment interests against another party's need for disclosure to determine whether a claim of pri vilege should be upheld or whether dis-covery should be ordered requires a detail-ed and painstaking analysis. The need for ,
First Amendment protection should be care- l fully scrutinized. The argument in fa/or of upholding the claim of privilege will ordinarily grow stronger as the danger to rights of expres-sion and association increase. We emphasize, I however, that the litigant seeking protection need l not prove to a certainty that its First Amendment rights will be chilled by disclosure. It need only show that there is some probability that disclos-ure will lead to reprisal or harassment.
Black Panther Party v. Smith, 213 U. S . App. D. C. 67, 91-92, 661 F. 2d 1243 (1981).
(citations and footnote omitted). The court continued that "[elven when the information sought is crucial to a litigant's case, disclosure should be compelled only after the (Footnote continued from p. 5)
Movants, however, are constrained to take a less charitable view of the Company's motives in applying for the subpoenas in the first place. A telling indica-K ARR & LYONS tiCn of the Company's motives occurred on June 16, 1983, when John D. Selby, the W ASHINGTON DC 20005 p y p s opMaMg EkM, kdUd MM b SMommiUM M Energy and the Environment of the 11ouse Committee on Interior and Insular Affairs.
e m na. At the time of Mr. Selby's testimony, Company represe ntatives distributed to members of the press a packet of self-serving materials which included a number of documents designed to impugn GAP's honesty and credibility; copies of those documents are attach-
- ed hereto as Exhibit B. It is impossible for movants not to cenclude that the Company's subpoenas to G AP staff members are likewise part of a deliberate campaign by the ]
Company to discredit GAP, and to destroy its effectiveness as a representative of those who seek to blow the whistle on the Company's activities.
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litigant has shown that he has exhausted every reas' enable alternative source of infor-mation. . . . Infringement of First Amendment interests must be kept to a minimum." Id.
at 92. '
There can be little doubt that the rights of the affiants, whose identity GAP seeks to protect, to petition the government will be abridged, if not totally nulli-fied, if the Company's subpoenas are complied with. And the Company, of course, has not demonstrated that the information sought is crucial to its case in this proceeding or that it has attempted to obtain the information from alternative sources.14/
t In a case involving issues strikingly similar to those raised in this pro-ceeding, the United States Court of Appeals for the Tenth Circuit addressed the ques-tion "whether a privilege exists in favor of a non-party witness which permits him to resist pretrial discovery in order to protect a confidential source of information."
Silkwood v. Kerr-McGee Corp. , 563 F. 2d 433, 435 (loth Cir.1977). The witness concerned was a free-lance journalist who had gathered information pertinent to the case for the purpose of making a documentary film; it is not clear from the report of the case whether the film was, in fact, actually made. In the course of his investiga-tion, he had obtained certain information only in return for pledges of confidentiality.
Citing the leading case of Garland v. Torre, 259 F. 2d 545 (2d Cir.), cert. denied, 358 U. s. 910 (1978), the court upheld the witness' claim of privilege and listed the following criteria to be considered in determining whether disclosure should neverthe-less be ordered:
- 1. Whether the party seeking information has independently attempted to obtain KARR & LYONS VQ$HINGTON D C 20005 [ /
.,on,,,,-33.. Subpoenas a boilerplate assertion that the depositions will concern relevant information which cannot be obtained from other sources. It is plain, however, that the Company's conclusory allegations fall far short of the kind of detailed showing of particularized need which is required when discovery threatens First Amendment intgrests.
the information elsewhere and has been unsuccessful;
- 2. Whether the information goes to the heart of the matter;
- 3. Whether the information is of certain relevance;
- 4. The type of controversy.
[563 F. 2d at 438]
The Silkwood court went on to comment that " compulsory disclosure in the course of a
' fishing expedition' is ruled out in the First Amendment case." M. In the present proceeding, the Company is clearly engaged in a fishing expedition whese primary purpose is to ascertain the identities of those of its employees whose concern about the safety of the Midland plant prompted them to submit affidavits to NRC Region III through GAP.
Freedom of speech and the press and the right to associate and petition constitute a constellation of constitutionally protected interests which are closely connected. Courts have unif ormly recognized the existence of a privilege against discovery in civil cases in order to protect freedom of speech and the press and rights of a ssociation. The right to petition the government for redress of grievances, which is centrally important to the effective operation of our representative system of govern-ment, and whose reach clearly extends to administrative agencies, plainly requires the recognition of an identical privilege. Because of the undoubtedly chilling effect of the Company's subpoenas, not only on the affiants directly concerned but on all citizens who might in the future seek the assistance of GAP or any similar organization to bring their concerns to the attention of the appropriate government agency, the Company's KARR & LYONS YASHINGTON D C 20005 s202* 13 7 SSee e
i l
l 111. The Company's Subpoenas Are In Violation Of The Common Law Of Privilege.
Even if the Commission rejects movants' constitutional claim, the Company's subpoenas must nonetheless be quashed as a matter of common law.
There are four conditions necessary to the recognition of an evidentiary.
privilege at common law: (1) the communications must originate in a confidence that they will not be disclosed; (2) the element of confidentiality must be essential to the full and satisfactory maintenance of the relationship between the parties; (3) the relationship must be one in which the opinion of the community ought to be sedulously fostered;.and (4) the injury that would inure to the relationship by the disclosure of the communication must be greater than the benefit thereby gained for the correct disposal of litigation.
8 WIGMORE, EVIDENCE Sec. 2285. In the present proceeding, all four factors strongly militate in favor of recognition of a privilege.
First, the communications from the Midland Whistleblowers to GAP and thence to the NRC indisputably originated:in the confidence that they would not be dis-closed.
Second, vi thout such an assurance of confidentiality, the Midland whistle-blowers would not have executed affidavits for submission to the NRC;b th us, the element of confidentiality is essential to the relationship between GAP and the whistle-blowers, and to the full and free flow of information to the NRC and to the public.
Third, the public interest clearly favors encouragement of relationships between whistleblowers, who may have knowledge of unsafe conditions in nuclear power plants, and GAP, which has the resources and expertise essential for effective KARR & LYONS V A$H10*GTON D C 20005 }g Affidavit of Louis Clark, paras. 8,12 and Attachment 1.
42026737 3S44
-16/ Id . , pa ra s . 8, 9 a nd 12. See also the Statement of John D. Selby, the Company's president and chief operating officer, which was submitted to the Sub- ,
committee on Energy and the Environment of the House Committee on Interior and Insular Affairs on June 16, 1983: (Footnote continued on p.10.) e
- transmission of whistleblowers' information to the NRC and to the public.
Fourth, compelled disclosure of the identities of the whistleblowers would not only destroy the relationship between GAP and these particular whistle-blowers, it would also make it impossible for GAP to establish such relationships with future whistleblowers; 17 / by contrast, the Company has made no particularized showing of need for the information.
Clearly, then, all of the elements traditionally implicated in the recog-nition of common law evidentiary privileges point toward recognition of a privilege on the present facts. For that reason alone, the Company's subpoenas should be quash-ed.
(Footnote continued from p. 9)
Primarily because of the soils problem, the NRC in testimony before this Subcommittee on November 1981 identified Midland as one of five nuclear construction projects having .
serious quality assurance problems with broad project repercussions. IIistorically, most of the construction problems at the Midland plant have been detected as a result of Consumers' and Bechtel's own quality assurance programs.
Moreover, the problems we have detected have been properly reported to the NRC. In addi-tion, over the past few years we have actively solicited information concerning any possible construction deficiencies from site workers through our quality assurance program, which includes procedures for protecting the identity _
of any informants who request confidentiality. ,
[ld., p. 3] [ Emphasis supplied.] [Copics of the cover and third pages of Mr. Selby's Statement are attached hereto as Exhibit C.]
Movants take Mr. Selby's statement to be a plain enough admission that informants are i
KARR & LYONS Quite unlikely to Come forward with their information absent assurances of anonymity.
MSHING TON D C 20005
,,c,,l((,,,, E! Affidavit of Louis Clark, paras. 9 and 12.
IV. The Commission is Estopped From Issuing Subpoenas In Violation Of its l'romise Of Confidentiality.
It is settled law that promissory estoppel will lie against the government where (1) one has reasonably relied upon a promise; (2) the estoppel will not work to override a statute or regulation; and (3) estoppel is necessary to over come an injustice and will not cause undue damage to the public interest. Molten, Allen & Williams ,
I nc . v. liarris ,198 U . S . A pp. D . C . 443, 613 F. 2d 1176 (1980); Texas Oil & Gas Corp. v. Andrus, 498 F. Supp. 668 (D.D.C.1980), rev'd on other grounds sub nom.
2 Texas Oil & Gas Corp. v. Watt, U . S . App. D. C. , 683 F. 2d 427 (1982).
In the instant matter, those principles plainly bar the Commission from issuing (or enforcing) the subpoenas here at issue.
First, it is beyond dispute that both GA P and the Midland whistleblowers reasonably relied upon the NRC's J une,1982, promise of confidentiality.18/
Second, 'the NRC's promi se of confidentiality was not in violation of any statute or regulation. Third,the Commission's adherence to its promise of confidentiality is essential to prevent injustice both to GAP and the Midland whistleblowers who acted in reliance on the promise; moreover, the public interest will, without doubt, be best served by honoring a promise whose purpose and effect is the furtherance of a full and free flow of information to the Commi ssion and the public.
Under the circumstances, the Commission is quite simply estopped from allowing the Company to pursue discovery in violation of the Commission's June,1982, promise of confidentiality.
KARR & WONS 18,/ Id. , paras. 8, 9,12 and Attachment 1.
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V. Conclusion focus of the argument in this motion has been on the necessity of protecting the confidentiality of the affiants who have provided information to the NRC with the assistance of GAP. It must be emphasi7d, however, that more is at stake here than the anonymity of the Midland whistleblowers. It is difficult not to conclude that the Company's true purpose in attempting to depose G A P staff members is the destruction of the Project's organizational effectiveness; just as journalists' capacity to uncover important stories cannot survive even the appearance of inability to protect confidential sources, so too will G AP's effectiveness be destroyed if the Company manages merely to create the appearance that GAP cannot assure anonymity to whistleblower s.19 /
-19 /
Compare, e.g. , in re Taylor, 412 Pa. 32,193 A. 2d 181 (1963), which was an appeal from an order adjudging a journalist in contempt for refusing to produce notes, memoranda and ot her document s to a grand jury, despite a ruling by the trial court that all names could be deleted from the documents. In reversing the contempt order as violative of a reporters' shield statute which protected journalists from being compelled to reveal " sources of information," the Supreme Court of Pennsylvania first remarked that " independent newspapers are today the principal watch-dogs and pro-tectors of honest, as well as good, Government. * *
- They are, in the best sense cf the maxim, ' pro bono publico.'" 193 A. 2d at 185. The court then noted "that important information, tips and leads will dry up and the public will often be deprived of. . .know-ledge. . .unless newsmen are able to fully and completely protect the sources of their informa tion . " Id. (emphasis in original). The court concluded:
If a Court can select or direct newsmen in its or their jud gment to select or delete what information is disclosed by the informer or to furnish the documents in full with ont y the names deleted which the newsman or the Court sincerely believes should be deleted, the purpose, the object and the intent of the Act will be realis-tically nullified. [ld, at 186.] [ Emphasis in KARR & LYONS original.}
MSHINGTON D C 20005 Mutatis mutandis, GAP, too, is a pro bono publico organization dedicated v2026 737 3S44 to b walddq k@ jim
- G AP's wunes d infamatiG w*ill simibdy dg up udess We Project is able to fully and completely protect sources of information; consequently, (Footnote continued on p.13.)
Corporate life will doubtlessly be easier for the Company if it succeeds in putting GAP out of business; the citizenry, however--which would thereby lose a vigorous advocate of the public interest--would be immeasurably poorer.
For all of the foregoing reasons, the Company's subpoenas to Mr. Clark, Mr. Devine, Ms. Garde and Ms. llallberg should be quashed, forthwith.
R spectfully submitted,
~
. f- % .~~~
- ) i Johny Karr 625 Washington Building Washington , D.C. 20005 Attorney for Movants (Footnote continued from p.12) like the journalist in Taylor, G AP must re sist the Company's attempt to rummage KARR & LYONS through its files, even if names are redacted from the documents contained therein.
was-cro,. o c 20003 As noted in the text above, appearances are crucially important in the delicate area of source protection. The Supreme Court of Pennsylvania held as much in Taylor; GAP
o2'"'"** urges the Commission to hold likewise here.