POLICY ISSUE

(Notation Vote)

November 17, 2005 SECY-05-0213

FOR: The Commissioners

FROM: Luis A. Reyes

Executive Director for Operations 

SUBJECT: POLICY OPTIONS AND RECOMMENDATIONS FOR THE

RELEASE OF REPORTS PREPARED BY THE OFFICE OF

INVESTIGATIONS

PURPOSE:

To obtain Commission approval of the staff’s recommendation regarding the release of reports

prepared by the Office of Investigations (OI) for wrongdoing cases other than discrimination.

SUMMARY:

The nuclear industry has, for many years, been seeking changes to the U.S. Nuclear

Regulatory Commission’s (NRC) policy regarding the release of OI investigation reports for the

purpose of preparing for predecisional enforcement conferences (PECs). OI reports and

exhibits for nondiscrimination cases are generally not available to licensees or the public until

after the NRC takes enforcement action, and when OI or the Office of Enforcement (OE)

concludes that disclosure of a report could interfere with ongoing investigative and enforcement

activities in accordance with Freedom of Information Act (FOIA) exemption 7(a). Instead, the

staff currently provides PEC participants a factual summary of OI’s investigation. Licensees

and members of the public may request and obtain a copy of a full report under FOIA after the

NRC takes its initial enforcement action (e.g., a Notice of Violation and Proposed Civil Penalty). 

CONTACT: Robert J. Fretz, OE

(301) 415-1980
The Commissioners -2-

This paper examines various options regarding the NRC’s policy for the release of information

contained in OI reports. The staff proposes that it continue to provide PEC participants a

reasonably detailed summary in lieu of the OI report. The summary should contain sufficient 

information to describe the basis for the staff’s preliminary conclusion that a violation of NRC

requirements occurred. The staff also recommends that it continue to provide redacted OI

reports for cases involving discrimination.

BACKGROUND:

When the NRC determines there is a potential violation for which escalated enforcement action

appears to be warranted, the staff will typically offer the licensee, contractor, or persons

involved in the apparent violation the opportunity to provide additional information at a PEC. 

Section V of the NRC’s Enforcement Policy states that the purpose of a PEC is to “obtain

information that will assist the NRC in determining the appropriate enforcement action.” As

such, it is one of the last steps in the staff’s fact-gathering process. 

For cases involving possible misconduct on the part of a licensee or individual, OI documents

the findings of its investigation into the apparent wrongdoing by preparing: (1) a Report of

Investigation (OI report) and (2) a collection of exhibits supporting the investigation. OI reports

include a detailed summary of all interviews conducted by the agent, a review of the

documentary evidence obtained during the investigation, and the agent’s analysis and

conclusions. Exhibits supporting the OI report include transcripts of the interviews and copies

of the documentary evidence. 

At the time a letter is sent to the licensee in which a PEC is offered, the staff provides PEC

participants either a redacted copy of the OI report or a factual summary of OI’s investigation,

depending on the case type. The guidance provided to the staff (Enforcement Manual

Section 7.5.4.4) states that the summary should “provide sufficient factual detail to fully apprize

conference participants of the operative facts involved in the apparent violation.” While not

intended to be a full discussion of the evidence gathered in the course of the NRC's

investigation, the factual summaries allow the licensee to understand the basis for the potential

enforcement action, and provide enough information to permit a licensee to independently verify

the facts of the case while also protecting the sources of the investigation.

If, after review of all the evidence, the NRC determines that a violation exists and issues a

Notice of Violation (NOV) or an NOV with a proposed civil penalty (NOV/CP), licensees may

request copies of the full OI report and exhibits through the FOIA process. If the licensee

challenges the NOV/CP and requests a copy of the OI report under FOIA, payment is normally

stayed until the licensee has received and had a chance to review the requested reports,

typically 30 to 60 days following receipt of the requested information (Enforcement Manual

Section 5.6.7). Therefore, the licensee is afforded the opportunity to respond to the staff’s

conclusions based on its review of the OI report and exhibits. Furthermore, if a licensee

requests a hearing, the NRC provides the OI report and exhibits to the licensee through the

discovery procedures in the Part 2 rules and practice.
The Commissioners -3-

1 Staff Requirements - SECY-99-019 - Release of Investigative Information from Office of

Investigations Reports to Licensees and Subjects of Investigations for Purposes of

Predecisional Enforcement Conferences, dated May 27, 1999.

2 Discrimination Task Group (DTG) report dated September 12, 2002, page 59.

3 Staff Requirements - SECY-02-0166 - Policy Options and Recommendations for Revising the

NRC’s Process for Handling Discrimination Issues, dated March 26, 2003 (ADAMS

Accession No. ML030850783).

The staff has not always provided factual summaries or redacted copies of OI reports to PEC

participants. Up until the late 1990s, if wrongdoing was associated with the potential violation,

the staff would provide a very short synopsis of the OI report to all parties participating in the

PEC. The limited information contained in the synopsis proved to be of little benefit to the

meeting’s participants. Therefore, in response to industry stakeholder requests as well as a

1998 Congressional inquiry from Congressman DeLay, the NRC staff reexamined its policy

regarding the release of OI reports. In SECY-99-019, dated January 20, 1999, the staff

proposed changes to the NRC’s long-standing policy by recommending that it provide a more

detailed factual summary of the information contained in the OI report to PEC participants. The

staff, however, continued to oppose the release of copies of the OI report itself until after

enforcement action was taken. The Commission subsequently approved this recommendation

on May 27, 1999.1

Later, the Discrimination Task Group (DTG) reconsidered the NRC’s policy for releasing OI

reports for discrimination cases. Some members of the staff believed that, because individuals

associated with these cases are already known to the licensee, there were opportunities to

relax the policy related to providing OI reports to PEC participants. When public comments

were solicited, industry stakeholders echoed their earlier viewpoints, and stated that furnishing

a copy of the OI report prior to the PEC would give the industry the “opportunity to examine the

factual and analytical foundation of the OI report and to respond to those fully at the

conference.”2

 The industry indicated that this information would assist them in understanding

the facts, root causes, corrective action, and the significance of issues with respect to potential

violations discussed at the PEC. 

The DTG also considered a number of issues raised by certain DTG participants and

non-licensee stakeholders. These comments were in sharp contrast to those offered by the

industry, and centered around concerns that allegers, whistleblowers and witnesses who

cooperated in OI investigations could be adversely affected if and when their identities were

revealed to the licensee. In addition, certain staff members were concerned that the release of

this information could undermine the investigatory process.

After considering the viewpoints outlined in the DTG’s September 12, 2002, report, the

Commission approved the DTG and Senior Management Review Team’s recommendation

to release OI reports, with redaction and without the supporting documentation (exhibits),

and after Office of the General Counsel (OGC) review of the sufficiency of the evidence, and

prior to holding a PEC in discrimination cases.3

 This policy has now been in place for

approximately 2 years.
The Commissioners -4-

Most recently, Entergy Nuclear Operations (Entergy) requested that the Commission reconsider

a decision made by the staff to withhold a copy of an OI report relating to an inattentive shift

supervisor at Entergy’s Pilgrim Nuclear Power Plant (Pilgrim). In a letter dated March 18, 2005,

Shaw Pittman, LLP, on behalf of Entergy, requested that the Commission direct the NRC staff

to provide Entergy with a copy of the OI report for the Pilgrim case prior to the scheduled PEC. 

Because current NRC policy only addresses the release of redacted OI reports for cases

involving discrimination, the NRC staff advised Shaw Pittman that it would not release the

requested OI report at this time. However, in its response letter dated April 7, 2005, the staff

stated that it intends to further consider the matter of whether or not it is appropriate to extend

this policy to non-discrimination cases.

DISCUSSION:

As described above, the current practice of releasing OI reports to PEC participants differs for

discrimination and non-discrimination cases. Redacted versions of the OI report are released

for discrimination cases whereas only reasonably detailed summaries are released for 

non-discrimination cases. Transcripts of interviews and copies of documents collected during

the OI investigation are generally not released to licensees or the public for all cases until after

the action has been issued, and then typically only in response to a FOIA or discovery request. 

One exception is that the NRC staff may release transcripts of interviews to individuals —

provided that the related OI investigation is complete and closed — if individuals (or their

attorney) request a copy of the transcripts of their OI interview to prepare for a PEC (of which

they are the subject).

The staff’s experience in providing copies of redacted OI reports for discrimination cases has,

to date, been limited. In the 2 years that this policy has been in place, the staff has provided

copies of redacted OI reports 5 times. Historically, only a small percentage (approximately 6

percent) of discrimination investigations are substantiated each year, and while the total

number of cases vary from year to year, there appears to have been no significant change in

the number of discrimination complaints received since the implementation of the new policy. 

Although we cannot draw any firm conclusions due to the relatively small number of

substantiated discrimination investigations, our experience with the new policy is consistent with

the DTG’s expectation that releasing OI reports for these cases would have little impact on the

number of concerns raised. The NRC advises discrimination whistleblowers that, when they

come to the NRC with a complaint, their identity will be divulged prior to the investigation, and

that other potentially identifying information will be revealed during review of their allegation. 

In SECY-02-0166, the DTG raised a concern regarding release of redacted OI reports: the

PEC could become a venue to question the strengths and weaknesses of OI’s evidence, rather

than a forum for the licensee to focus on the issues identified during the investigation. Based

on the limited experience to date, the staff has found that the licensee knowing the basis for the

potential violation has not caused PEC or Alternate Dispute Resolution (ADR) sessions to

become a critique of the OI report. This is due, in part, to the licensee being provided only the

information gathered during the investigation and not the agent’s analysis or conclusions. 

Investigations involving discrimination are different from other wrongdoing cases because the 
The Commissioners -5-

licensee already knows the identity of the alleger and the individuals OI is likely to interview

during the investigation, even without the redacted OI report. In other types of wrongdoing

cases, the licensee is less likely to know who reported the allegation or who OI interviewed.

The staff recognizes that licensees have a desire to have as much information as possible

whenever the NRC implies wrongdoing on the part of their employees or contractors. Willful

violations are of particular concern to the Commission, and the NRC’s Enforcement Policy

requires the staff to consider the impact that willful acts may have played in apparent violations. 

Because these situations have the potential to become very contentious, the staff generally

offers the affected parties an opportunity to share information at a PEC prior to making an

enforcement decision instead of responding in writing.

Since the policy of providing the more detailed factual summaries has been in place, the staff is

not aware of any case where a licensee has come to the PEC with a different understanding of

the basic facts surrounding the apparent violation. Instead, the staff’s recent experience with

PECs has shown that the conferences have focused on the staff’s determination of willfulness,

whether or not a violation has occurred, and what the appropriate enforcement action should

be, as opposed to being a forum where facts of the case are debated.

The staff has considered the question of whether the NRC should further expand its policy to

allow for the release of OI reports for all wrongdoing cases. Many of the same arguments that

were examined in SECY-99-019 and SECY-02-0166, supporting both a decision to release OI

reports and to withhold this information, continue to be relevant today. 

Arguments from stakeholders in favor of the release of OI reports include the following:

• Because a primary purpose of the PEC is to arrive at a common understanding of the

facts associated with the apparent violation, release of the OI report should permit the

licensee or individual to better assess the facts upon which the NRC has made its

preliminary conclusions and to respond to the contemplated charges with knowledge of

the facts.

• Release of the OI report may result in a more fruitful exchange of information at the

PEC, which may assist the staff in making a more informed enforcement decision.

• It is in the NRC’s interest to disposition OI reports in the most resource-efficient manner. 

That would be through the enforcement conference process, as opposed to a

subsequent adjudicatory hearing. Allowing the licensee or subject of the investigation to

better assess the facts upon which the NRC has based its preliminary conclusions may

make it less likely that the NRC’s final determination will be challenged.

• The NRC already releases OI reports (redacted for personal privacy information) prior to

enforcement conferences in discrimination cases and under the FOIA process following

issuance of an enforcement action. Therefore, this policy could be expanded for other

types of wrongdoing cases. (Note - approximately one-third of all non-discrimination

wrongdoing investigations are substantiated each year.)
The Commissioners -6-

Arguments from stakeholders against the release of OI reports include the following:

• The alleger community may not be well served by the release of OI reports. The alleger

may have been interviewed by OI unbeknownst to the licensee. This could create a

potential chilling effect on allegers and adversely affect cooperation with OI and the

entire NRC process. 

• The NRC needs to be concerned about the impact that voluntarily releasing redacted OI

reports might have on third-party witnesses. These witnesses do not have anything to

gain by providing candid testimony to OI; however, they risk possible retaliation if they

are viewed as being overly cooperative with the investigator. This could also have a

chilling effect on the willingness of third-party witnesses to provide critical information to

the NRC under oath.

• The NRC already provides factual summaries of the OI report to PEC participants, and

these summaries have been effective at providing an overview of OI’s investigation. 

Additional resources will be required to provide copies of redacted OI reports, and

providing these copies will likely cause delays in the scheduling of PECs.

• If OI reports are released, the licensee would be provided with the NRC’s evidence, as

well as the strengths and weaknesses of the case. Consequently, licensees and

subjects of investigations may tailor their presentations at the PEC to what the NRC

knows or does not know, rather than present what actually occurred. To the extent that

there are weaknesses in the case, the participants may dwell on these weaknesses

instead of all relevant facts and circumstances. 

• In the extreme case, PEC participants can more easily tailor or even fabricate evidence

in an effort to deceive the NRC, if they choose to do so, because they will know what

evidence the NRC has gathered. They will have access to the information the NRC has,

but the NRC will not necessarily have access to all the information the PEC participants

possess.

• Without the reports, licensees are more likely to conduct a more thorough and objective

investigation of the facts.

• Distribution of OI reports to participants at PECs will require the NRC to release the

reports in response to FOIA requests, even before an enforcement decision is made. 

Additionally, the NRC may not be able to withhold the exhibits under FOIA if the reports

are released to the licensee.

• OI reports would be provided with the understanding that the information should not be

disclosed to the general public until the NRC has made a final enforcement

determination. However, control of the OI investigative report would be lost since any of

the recipients could make the report and its findings available to anyone, including the

media. This could lead to unintended consequences for the alleger, the licensee, or

witnesses.
The Commissioners -7-

While the arguments against the wide-spread release of OI reports appear to outweigh the

reasons for releasing the reports, the staff recognizes that there could be a limited number of

nondiscrimination cases where it would be less objectionable to release copies of redacted OI

reports to PEC participants. In situations where the circumstances are similar to discrimination

cases (i.e., the identity of the alleger is known, and all other witnesses interviews are attended

by a licensee attorney representing the witness), there may not be as strong of a need for the

NRC to protect the identities of witnesses. The release of redacted OI reports in these

situations could be appropriate as long as the NRC’s interests were not jeopardized. However,

the existence of these situations is expected to be rare. In the case involving the inattentive

shift supervisor at Pilgrim, while the licensee would have been able to determine the identities

of the persons involved in the initial incident as well as many of the witnesses by simply

examining security records, in retrospect the staff should not have recommended releasing the

OI report in this case. 

Because the staff cannot completely rule out a situation where providing the redacted OI report

prior to the PEC is appropriate, staff has included an option whereby the Commission would

give the Director of OE the authority to determine, on a case-by-case basis and, in consultation

with the Director of OI, whether to release copies of redacted OI reports for these types of

situations. 

In summary, the staff has seen no adverse effects associated with releasing redacted OI

reports in discrimination cases, based on a very small number of substantiated investigations,

as previously discussed. The current practice of providing reasonably detailed summaries of

the basis for potential violations balances the need for an appropriate level of openness on

wrongdoing investigations with the NRC’s obligation to ensure that nuclear industry employees

work in an environment where they are freely able to raise safety concerns.

If the staff readily provides investigative information to licensees on a voluntary basis, as

opposed to providing the information under the FOIA statutory mandate, the NRC may be

considered as unsympathetic to alleger concerns by leaving the impression that it is aligned too

closely to the industry. The staff also is concerned that any adverse trend would be difficult to

monitor because the effects are gradual and accrue over the long term rather than the short

term. For the small fraction of employees who truly work in a “chilled environment,” the NRC

must be viewed as being receptive to safety concerns and provide, in effect, a sanctuary where

workers can raise issues when other efforts fail.

OPTIONS:

The staff has identified 3 options relating to the release of OI reports. These options assume

that there is no Commission interest in changing current NRC policy regarding discrimination

reports. 

Option 1: Expand current NRC policy of releasing redacted OI reports of investigation

(OI reports) for all wrongdoing cases.
The Commissioners -8-

This option would require the staff to release a redacted version of the OI report to PEC and

ADR participants for all wrongdoing cases prior to the conference, but would not provide

(redacted) copies of OI report exhibits, including transcripts of interviews conducted by the

agent.

Option 2: Revise current NRC policy by allowing the release of redacted OI reports, on a

case-by-case basis, for wrongdoing cases where there is no longer a need or

interest in protecting the identity of witnesses.

This option would allow the staff to consider certain requests for copies of redacted OI reports

on a case-by-case basis. These cases would involve circumstances where the wrongdoing was

observed by the PEC participants (i.e., the licensee), and where, in the staff’s judgment, the

parties know the identities of the alleger and witnesses interviewed by OI. With Option 2, the

Director of OE would have the authority to determine, on a case-by-case basis and, in

consultation with the Director of OI, whether to release copies of redacted OI reports. The staff

expects that the release of substantiated wrongdoing OI reports would be the exception, as

opposed to being the norm.

Option 3: Continue the staff’s current policy of releasing redacted OI reports for discrimination

cases only

This option continues the current NRC policy of providing a reasonably detailed factual

summary of the OI report to PEC participants and releasing OI reports, with redaction and

without the supporting documentation (exhibits), after OGC review of the sufficiency of the

evidence, and prior to holding a PEC in discrimination cases.

RESOURCES:

Providing copies of redacted OI reports (Option 1) has resource implications. Over the past 

5 fiscal years, OI has averaged 44 substantiated wrongdoing cases per year that did not involve

discrimination. Depending on whether the redaction effort involves first, second or third-party

requesters (i.e., the alleger, licensee, or other requesters), the preparation, review, resolution of

differences, and forwarding of a copy of an OI report to PEC participants would generally

average 30 to 40 hours per report. The number of hours includes time for OE and OGC to

review the redacted report, and to resolve any differences the various organizations may have

with respect to the content of the report. Based on an average of 44 substantiated reports per

year, the implementation of Option 1 would require the combined effort of approximately 0.75 to

1 FTE per year for OI, OE and OGC. Option 2 would require significantly fewer resources.

In SRM-SECY-02-0166, dated March 26, 2003, the Commission stated that the “release should

be limited to the OI report while the staff explores ways to gain efficiencies in redacting

information from supporting documentation” (i.e., exhibits). To date, the staff has been unable

to identify any technology or process improvement that would enable it to more efficiently redact

the large sets of documents that support OI reports. The redaction process is inherently 
The Commissioners -9-

labor-intensive because the staff must review carefully the resultant set of documents to ensure

that the identities of witnesses are not “fingerprinted.” Because the number of resources

required to provide a set of redacted report exhibits remains significant and cost prohibitive, the

staff does not recommend releasing supporting documents and, thus, did not include this as an

option.

RECOMMENDATION:

Because the factual summaries: (1) provide the basis for the apparent violation, (2) have been

effective at communicating this information while protecting the identity of allegers and

witnesses, and (3) minimize the impact on personnel resources, the staff believes that there is

not a compelling reason to change current policy at this time. As a result, the staff

recommends that Commission adopt Option 3 and continue to provide PEC participants

reasonably detailed summaries of OI reports for nondiscrimination cases and redacted OI

reports for discrimination cases. 

COORDINATION:

The Office of Investigations and Office of the Chief Financial Officer have concurred on this

Commission paper. The Office of the General Counsel has no legal objection. 

Representatives from the Regional offices also have reviewed this report.

/RA W. Kane Acting for/

Luis A. Reyes

Executive Director

 for Operations
The Commissioners -9-

labor-intensive because the staff must review carefully the resultant set of documents to ensure

that the identities of witnesses are not “fingerprinted.” Because the number of resources

required to provide a set of redacted report exhibits remains significant and cost prohibitive, the

staff does not recommend releasing supporting documents and, thus, did not include this as an

option.

RECOMMENDATION:

Because the factual summaries: (1) provide the basis for the apparent violation, (2) have been

effective at communicating this information while protecting the identity of allegers and

witnesses, and (3) minimize the impact on personnel resources, the staff believes that there is

not a compelling reason to change current policy at this time. As a result, the staff

recommends that Commission adopt Option 3 and continue to provide PEC participants

reasonably detailed summaries of OI reports for nondiscrimination cases and redacted OI

reports for discrimination cases. 

COORDINATION:

The Office of Investigations and Office of the Chief Financial Officer have concurred on this

Commission paper. The Office of the General Counsel has no legal objection. 

Representatives from the Regional offices also have reviewed this report.

/RA W. Kane Acting for/

Luis A. Reyes

Executive Director

 for Operations

* See previous concurrence

OFFICE OE/ES Tech Editor OE/DD OI/D OGC

NAME RFretz* HChang* JLuehman GCaputo* BJones*

DATE 9/01/05 08/31/05 11/08/05 09/13/05 10/20/05

OFFICE CFO OE/D DEDMRS EDO

NAME JFunches* MJohnson MVirgilio LReyes/ W

Kane for

DATE 09/13/05 11/10/05 11/17/05 11/17/05

OFFICIAL RECORD COPY