ML20081B068
| ML20081B068 | |
| Person / Time | |
|---|---|
| Site: | Midland |
| Issue date: | 10/21/1983 |
| From: | Karr J GOVERNMENT ACCOUNTABILITY PROJECT |
| To: | NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP) |
| Shared Package | |
| ML20081B053 | 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 8310270266 | |
| Download: ML20081B068 (10) | |
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i' UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION l*
00CKETED
, USNRC ATOMIC SAFETY AND LICENSING APPEAL BOARD _ , ' , l
'83 OCT 26 hii:52 '
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- s. \ ) CFFICE OF SECRE7;J ' l-
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aEm; In th'e Matter of 007.E] PL . ...
CONSUMERS POWER COM PA NY (Midland Plant, Units 1 and 2) )
Docket Nos. 50-329 OL
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50-330 OL
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Docket Nos. 50-329 OM 50-330 OM MEMORANDUM IN SUPPORT OF APPEAL OF GOVERNMENT ACCOUNTABILITY PROJECT DEPONENTS
- 1. -Background A'ppellants Louis Clark, Thomas Devine, Billie Pirner Garde and Lucy -
Hallberg are all employed by the Government Accountability Project (hereafter," GAP" or "Proj ect") of the Instit ute for Policy Studies, a private, non-profit organization :
located in Washington, D. C. Mr. Clark is G AP's Executive Director; Mr. Devine is I
the Project's Legal Director; Ms. Garde is Director of GAP's Citizens Clinic for Government Accountability (he reafter, "Citiz ens Clinic"); and Ms. Hallberg is GAP's repre sentative in the State, of Michigan.1/
Among ot her activities, G AP offers assistanc e to public and private employees, private citi ze ns and community-oriented groups who pursue illegal, wasteful, improper or negligent actions by government or corporat e bodies.2/ In June, i
1980, G AP was approached by a whistleblower who had been dismissed from his employ-ment at the Zimmer nuclea r power plant in Moscow, Ohio.3_/ As a consequence of the
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-3fSee paras. I and 2 Affidavit of Louis Clark , which was attached as j ... . ..
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Exhibi t A to the motion to quash subpoenas filed by appellants with the Atomic Safety and Licensing Board on June 27, 1983
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3/ Id. , par a. 7, 8310270266 831021 PDR ADOCK 05000329 0 PDR
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2-Pfoject's ensuing success in assisting this whistleblower and et hers in exposing ;
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- serious safety problems at the Zimmer plant, ,/ GAP began to receive requests for l
ass,i, stance with nuclear pov er safety problems from many other citizens groups and '
whiskleblowers. b mong A tho se citizens organizations were groups located in Midland, Michigan, who had been contacted by a number of whistleblowers at the Midland nuclear I
power plant operated by Consumers Power Co. (hereafter, " Consumers").6/ -
The Midland citizens group s did not know how to assist the whistle-blowers; consequently, they sought advice from GAP's Citizens Clinic.1 GAP asked the citizens organization s to provide the Project with as much information as possible about alleged safety problems at the Midland plant, and after it became convinced that the problems were serious , GAP agreed to assist the whistleblowers who had con-tacted the Midiand citizens groups about plant safety problems. 8/ Thereafter, GAP submitted six affidavits to the Nuclear Regulatory Commission (hereafter, "NRC" or i " Commission") pre pared by persons who believe that th ere are major safety problems at the Midland plant. N With only one exception, all of the Midland affiants requested that theirinformation be supplied to the NRC on a confidential basis.10/ Accordingly, f GAP sought and obtained a guarantee from the Commission that the agency would pro-l tect the anonymity of t hese affiants.11/
l On August 8,1982, Consumers requested the Atomic Safety and Licens-ing Board (hereafter, " Licensing Board") to issue subpoenas to G AP representatives.
Consumers chose not to pursue these subpoenas in August,1982, even though it b _I d .
E/ g., para. 10.
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10./ g. , para.12.
11 / Id., para. 8 and Attachme nt 1.
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, claimed the testimeny and documents it sought were relevant to quality assurance and quality control questions to be the subject of the OM hearings, then scheduled for October,1982. However, in April,1983, near the end of the OM hearings, in which most of the testimony on quality control and quality assurance issues was presented, Consumers decided to serve the subpoenas and ptrase depositions of G AP represen-tatives.
On June 27, 1983, the G AP rep resentatives moved the Licensing Board to quash the subpoenas. The GAP employees contended that the subpoenas were violative of the First Amendment to the Const itution of the United States 12 /
and of common law principles of privilege,E and that the NRC was estopped from issuing subpoenas in violation of its promise of confidentiality.14 / After oral argument on the motion on July 26, 1983, the licensing Board issued a memorandum and order on August 31, 1983, which denied the motion to quash but sua sponte imposed a protective order limiting dissemination of certain information obtained through discovery to Consumers' attorne ys.
The GAP deponents subsequently moved the Licensing Board to re-consider its August 31 order, and at the same time moved the Atomic. Safety and Licensing Appeal Board for an order staying the depositions. The Appeal Board denied the request for a stay on October 4,1983, and on October 6,1983, the Appeal Boani issued a memorandum which explained the basis of its October 4 order.15/
S Motion to Quash Subpoenas, pp. 4-8.
E g. , pp. 9-10.
Eg.,p.11.
= = = =-= IN ccording A to the October 6 memorandum at pp. 2-3, appellants'
"'"[$*, *,,"" motion for a stay "affirmat i y ely mi sled [the Appeal Board) into believing [ appellants]
had already sou ght and been denied a stay by the Licensing Board...." Appellants (footnote continued on p. 4)
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On the same day, the Licensing Board issu:d a memorandum and crdar denying the motion for reconsideration.
This appeal follow ed.16/
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'; 11. GAP Has A First Amendment Privilege To Protect its Information-Gathering Processes From Disclosure In Pro-ceeding s To Which It Is Not A Farty.
The primary basis on which G AP seeks to quash Consumers' subpoenas against it is its First Amendment right freely to collect information from confidential sources about the safety problems at the Midland nuclear plants. GAP, after gather-ing affidavits from confidential sourees, passes this information to the Nuclear (continued from p. 3) respond that if any confusion surrounded the question whether the motion for a stay of depositions was ripe for consideration by the Appeal Board as of the date of its filir,g, the confusion was not cau sed by any " affirmatively misleading" representations to the Appeal Board by appellants, but rather was directly and solely attributable to
'L the Licensing Board's unambiguous statement at p. 2 of its order of September 26, 1983, that "we wish to makc it clear that we are not staying our order of August 31, 1983." Appellants thought, reasonably enough, that the Licensing Board had thereby indeed made it crystal clea r that the Licensing Board would not stay the depositions pend-ing appellants' efforts to obtain further review of the legality vel non of the subpoenas.
Appellants therefore concluded that an application to this Board for a stay was ripe as of September 26. Appellant s, of course, do not qua rrel with the Appeal Board 's observation at p. 3 of its October 6 memorandum that " misleading statements in la]
motion...do not contribute meaningfully to the hearing process;" hove ver, appellants for thei r part are constrained to say that the integrit y of the hearing process is like-wise compromised when an administrative tribunal is too quick to infer bad faith motives on the part of litigants and their cou nsel. ,
b A nonparty is entit1ed to take a direct appeal from an ord er of a Licensing Board granting discovery against it since such a ruling has all the attributes of finality insofar as that nonparty is concerned. In the Matter of Pacific Gas and Electric Company (Stanislaus Nuclear Project Unit 1) ALAB-550, 9 NRC 683 (1979);
in the Matter of CommonweaIth Edison Company (Zion Station, Units 1 and 2), ALAB-116, 6 AEC 258 (1973); In the Matter of Consumers Power Company (Midland Plant, Units 1 and 2), ALAB-122, 6 AEC 322 (1973). The GAP depon ents.are not, of course ,
parties to the cu rrent soils settlement and licensing hearings ongoing before the Licensing Board.
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Regulat ory Commission Staff so that an cpproprinta inv2stig; tion may be conducted of these sources' allegations. In almost all cases the sources are former or current Consumers' or Bechtel Power Company employees who give this information to b,AP only under strict guarantees of confidentiality. In some cases the sources have already suffered retaliation for their outspokene ss about safety prcblems at the plants.17 / Moreover, the NRC has given written promises of confidentiality to these individuals in order to obtain their affidavits from G AP.18 /
The growing line of cases which protects journalists and news editors in thei r newsgathering and editorial functions clearly prot ects GAP's information-gathering which serves the public interest.W Journalists, scholars and other information-gathering organizations have a qualified privilege not to di sclose news sources and other work mater als unless disclosure is essential to protect the public interest in the crderly administra-tion of justice and t he information whose disclosures is sought is at the heart of the moving party's case. Baker v. F& F Investment. 470 F. 2d 778 (2nd Cir.1972);
cert. denied, 411 U. S. 966 (1973)(journalist would not be comp elled to disclose confidential sources in case of alleged racial discrimination in sale of houses where party had not shown information relevant or critical to their civil rights action);
1 E eeS Affidavit of Billie Pirner Garde, attached as Exhibit B to the motion for reconsideration of the August 31, 1983, order of the Licensing Board.
ESee para.12 and Attachment I to Affidavit of Louis Clark, supra n.l.
U The NRC suspended safety-related construction at the Zimmer nuclear power plant in November,1982, largely in response to G AP's petition to su spend const ruction, which wa s supported by affidavi ts and documentary evidence too voluminous to describe. See Cincinnati Gas and Electric Co. (William H. Zimmer Nuclea r Power Station, Unit No.1), CL1-82-33,16 NRC (Nov. 12, 1982).
= * " " Similarly, at Midland, GAP affidavits and documentary evidence has l "*~l"2,* *,,'""' led the NRC Staff to open both Region 111 and Office of Investigation investigations of alleged construc tion and quality assurance problems at the Midland site. No party can deny that GAP's information ga thering serves the public interest.
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. Silkwood v. Kerr-McGee Corp. , 563 F. 2d 433 (10th Cir.1977)(trial court must I weigh wehther the party seeking information has made independent attempt to obtain information elsewhere, information goes to the heart of the matter, the information -
- . I firelevant and the type of con troversy); Gilbert v. Allied Chemical Corp. , 411 F.
l Supp. 505 (D. Va.1976); United States v. Cuthbertson, 630 F. 2d 130 (3rd Cir. '
1980)(CBS was not compelled to produce transcripts and audiotapes related to ,
i "60 Minutes" program s where defendant failed to prove that only practical access to information was through media source); Maughan v. N_L Industries, 524 F. Supp.
t 93 (D.D.C.198D; Solargen Electric Motor v. American Motors Corp., 506 F. l Supp. 546 (N.D.N.Y.1981)(motion to quash subpoenas of television reporters i i
granted insofar as plaintiffs failed to explore alternative sources of obtaining ,
information).
This qualified First Amendment privilege clearly protects more than l simply the identity of confidential sources. It protects all materials whichthe news or public interest organizaticr.s gather in performing their public service. Thus, in United States v. Cuthbertson , supra, the court stated that the privilege prohibits i i
the compelled production ~ of unpublished materials in CBS' pos session since such i disclosure would " constitute a significant intrusion into the newsgathering and editoria ;
processes." 630 F. 2d at 147. See also Herbert v. Lando. 441 U. S.153 (1979)
(recognizing an editorial privilege); Richards of Rockford, Inc. v. Pacific Gas &
Electric Co. , 71 F.R.D. 388 (N.D. Calif.1976); In re Popkin, 460 F. 2d 328 j (1st Cir.1972), cert. denied, 411 U. S. 909 (1973); and in re Falk, 332 F. Supp. 938 I
(D. Mass.1971), in which courts recognize a " scholar's privilege" or a free l speech,First Ame ndment interest in maintaining the free flow of information to
! scholarly researchers from confidential sources.
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In fact, GAP's sources and materials need not even be confidential to claim this First Amendm ent privilege . See Altemose Coretruction Co. v.
l Building and Construction Trades Council. 443 F. Supp. 489 (D. Pa.1977)
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I l (motion to quash granted even thou gh confidentiality had potentially been waived by disclosure of affidavits to third parties and by numerous references to these affidavits ,
in course of broadcast by reporter and affiant); Loadholtz v. Fields, 389 F. Supp.
1299.(M.D. Fla.1975). The Appeal Board's focus must be on whether the compell-ed production of the appellants' testimony and investigative materials would intrude on GAP's protected inf ormation-gathering activities and the flow of information to the NRC on safety problems at the Midland site. If so, this Board must then consider (1) that GAP is not a party to these proceedings; (2) the information sought does not go to the heart of Consumer's case; (3) that Consumers has made no effort to obtain this information from other sou rces; and (4) that even if G AP were to be found to be the only practical source of inform ation , G AP's interest and the public's interest in protecting the flow of information about safety problems to GAP and to the NRC outweighs Consumers' interest in obtaining information relevant to issues in the licensing hearings. Bake r v. F & F Investment, supra; Richards of Rockford v.
Pacific Gas & Electric Co. , supra , 71 F.R.D. at 390.
In In re Appli ca tion of Cons umers' Union, 32 F.R. Serv. 2d 1373, 1374 (S.D.N.Y.1981),the cou rt found this balanc<. wa s in Consume r's Union ("CU")
favor since the public int e rest lay in CU's unfettered factfinding and publication of a magazine providing a forum for " impartial discussion of safety, fitness for use and reliability of products offered to the consuming public." See also, Apicella v'.
M cNeil Laboratories. Inc. , 66 F.R.D. 78 (E.D.N.Y.1975).In this case as in in re Consumers' Union, supra, this Board's balancing of t hese factors must lead to a decision to quash the G AP subpoenas.
To begin with, it is beyond serious dispute that GAP's effectiveness will be substantially impaired by involuntary disclosure s of confidential information.
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- f',,*" *_ As is made plain by the supplem ental affidavits of deponents Clark and Garde, which
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were attached as Exhibits A and B, respectively, to the motion for reconsideration filed with the Licensing Board, GAP has entered into a covenant of confidentiality i with persons who have come to it with inform ation concerning nuclear power plants, .
exactly becau se such per sons simply will not come forward with their information absent a clearly articulated and enforceable policy of confidentiality on GAP's part.
The injury resulting from forced disclosure of the information sought by Consumers .
l from GAP would substantially undermine G A P's organizational effectiveness, and would intrude into the special and confidential relations hip that exists between GAPand those who com e to it with information which they wish to put into the public domain. Compare Machin v. Zuckert, 316 F. Gd 336 (D. C. Cir.1963).
By contrast, Con sumers has made no showing at all of any particularized need to depose and subpoena documents from GAP representatives at this juncture of the proc eeding s. In trut h, Consumers is simply attempting to
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discover the substance of an NRC investigation into allegations of construction deficiencies at t he Midland Plant while the investigation remains ongoing. Accord-ing to NRC practice and procedure, discovery of this sort would not be permitted against the NRC staff until the conclusion of the investigation; consequently, by pursuing discovery against GAP while the NRC investigation is pending, Consumers I is merely attempting to circumvent normal NRC procedures. Consumers will not be prejudiced in any way by adhering to the course normally followed in NRC proceedings.
In short, Consumers has shown no particularized need for this discovery, while GAP has demonstrated a compelling interest in maintaining the confidentiality of its records, operations , and communications. Clearly, the subpoena n at issue must be quashed under the Firs t Amendment principles discussed above.
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' 111. The Subpoenas Are In Violation Of The Common Law Of Privilege.
Furthe rmore, quite independ ently of appellant s' c onstitutional claim, Conkumers' subpoenas must 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 betwe en the parties; (3) the relation-ship must be one in which the opinion of the community ought to be sedulously foster-ed; and (I.) the injury that would inure to the relationship by the disclosure of the comm unicat io n must be greater than the benefit thereby gained for the correct dis-spo sal of litigation . 8 WIGMORE, EVIDENCE Sec. 2285 In the present proceed-ing, all four factors strongly militate in favor of recognition of a privilege.
First , the communications from the Midland whistleblowers to G AP and thence to the NRC indisputably originated in the confidence that they would not be disclosed.E Second, without such an assurance of confidentiality,. the Midland whistleblowers would not have executed affidavits for submission to the th NRC;b us, the elem ent of confidentiality is essential to the relationship between G AP and the whistleblowers, and to the full and free flow of informa tion to the NRC snd to the public.
' b ffidavit A of Louis Clark, supra n.1, paras. 8,12 and Attachment 1.
Eld. , paras. 8, 9 and 12.
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Third, the public interest clearly favors encouragement of relation-ships between whistleblowers, who may have knowledge of unsafe conditions in nuclear power plants, and GAP, which has the resources and expertise essential for effective tran'smission of whistleblowers' information to the NRC and to the public.
Fourth, compelled disclosure of the communications between the whistle-blowers and G AP would not only destroy the relationship between G AP and these pa rticular whistleblowers, it would also make it impossible for G AP to establish such relationships with future whirileblowers;22/- by contrast, Consumers has made no particularized showing of need for the information.
Clearly, then, all of the elements traditionally implicated in the recognition of common law evidentiary privileges point toward recognition of a privilege on the present facts. For that reason alone, Consumers' subpoenas should qua sh ed .
IV. Conclu sion
.. For all of the foregoing r.easons, the orders of theticensingBoard appealed from herein should be vacated, and the matter remanded to the Licensing Board with directions to enter an order to quash Consumers' subpoenas to G AP representa-tives.
Respectfully submitted, AN John W. Itiirr le 525 Washington Building Washington, D.C. 20005 Attorney for Appellants
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eausa ,s. sw 2_2,/ Id_. , paras. 9 and 12.