Upon motion by applicants in construction permit proceeding for directed certification of a Licensing Board order denying their request for a protective order limiting disclosure of a fuel supply contract, the Appeal Board rules that: (1) the controversy is not moot by virtue of the completion of the evidentiary hearing of the issue to which the contract relates; (2) the question presented by the Licensing Board order is deserving of interlocutory appellate consideration; (3) the grounds on which the Licensing Board rested its denial of a protective order are insubstantial; (4) the applicants have misapprehended the standards governing a claim that certain information should be protected against public disclosure; and (5) in the totality of the circumstances, the applicants should be given an opportunity to demonstrate that, measured against the proper standards, their claim is meritorious. Application for directed certification granted; certified issue remanded with instructions; interim protective order to remain in effect pendente lite. RULES OF PRACTICE: APPELLATE REVIEW An interlocutory discovery ruling denying a protective order must be reviewed immediately or not at all. While such a consideration does not necessarily require an appeal board to invoke its Section 2.718(i) certification authority, it may do so where the underlying issue appears to be of enough importance and the affected interests of the parties sufficiently great. RULES OF PRACTICE: DISCOVERY Neither 10 CFR §9.5(a)(4) nor 10 CFR §2.790 are directly concerned with the discovery of information in the hands of a private party. Rather, both deal with access to records and documents contained in the files of the Commission itself. RULES OF PRACTICE: PROTECTIVE ORDERS One seeking to place restrictions upon the disclosure of information relevant to an issue in adjudication must show that, inter alia, not only is the information of a type customarily held in confidence by its originator, but also there is a rational basis for so treating it (i.e., that the possessor of the information will suffer significant harm through its release). Mr. Jay E. Silberg, Washington, D. C. (with whom Mr. Mr. William H. Griffin, Assistant Attorney General of Mr. Milton J. Grossman (Ms. Colleen K. Nissl on the brief) DECISION April 27, 1976 This is a pending construction permit proceeding involving Wolf Creek Nuclear Generating Station, Unit No. 1. Acting upon a stipulation entered into by the parties (which include intervenors State of Kansas and Mid-America Coalition for Energy Alternatives), the Licensing Board admitted to the proceeding, inter alia, certain issues relating to the costs which would be incurred in acquiring nuclear fuel for the facility. In apparent aid of the preparation of their case on these fuel cost issues, the intervenors requested the applicants to furnish them with a certified copy of the nuclear fuel supply contract which the applicants had entered into with the Westinghouse Electric Corporation. The applicants reponded that they would furnish "certain nuclear fuel cost information which should satisfy the purposes of [that] request," provided that the intervenors first executed "a nondisclosure agreement *** designed to protect the proprietary information of suppliers of nuclear fuel" for the Wolf Creek facility. This condition was not found acceptable by the intervenors and, accordingly, they moved the Licensing Board for an order compelling the production of the Westinghouse fuel supply contract. The motion explicitly asserted that the "information contained in said contract is not secret, proprietary or confidential commercial." In its answer to the motion, the applicants noted that the nuclear fuel contract itself contained a prohibition against disclosure of its contents without the prior written consent of Westinghouse. The Board was told that, in light of this proviso, disclosure had been confined to (1) a relatively small number of persons in the employ of either the applicants or the firm serving as their consultant in the negotiation of the contract;1 (2) applicants' counsel; and (3), in camera, the Chairman, a Commissioner and one staff member of the Corporation Commission of Kansas in connection with a rate proceeding being conducted before that Commission which involved the Kansas Gas and Electric Company. Moreover, dissemination of the contents of the contract within the Westinghouse organization itself is on a "need to know" basis. Appended to the applicants' answer was the affidavit of Robert A. Wiesemann, a Westinghouse official. Mr. Wiesemann stated that his company deems information to be proprietary if, e.g., "[i]t reveals cost or price information, production capacities, budget levels, or commercial strategies of Westinghouse, its customers or suppliers." Fuel contracts, it was said, contain information of this type. Additionally, according to the affiant, "the information contained in a fuel contract is of such commercial or financial nature that it is customarily held in confidence by the originator and not customarily disclosed to the public." Following the submission of briefs on several questions raised by the Licensing Board, that Board issued an order on January 9, 1976 in which it directed the disclosure to the intervenors of "all terms and conditions of the nuclear fuel supply contract related in anywise to the price or cost in such fuel supply contract," which disclosure was to be "without any restriction or restraint on the use of such price or cost data" by the intervenors. The basis assigned by the Board for rejecting the applicants' position that the contractual provisions should be protected against public disclosure was that: The Board attaches considerable weight to the necessity of actual cost information for the cost-benefit analysis required to be made under NEPA and the Commission's regulations. Cost means what the persons in the commercial field generally term prices or charges. These cost-benefit analyses are required to be publicly disclosed in the Final Environmental Statements. 'It was represented to the Board that that firm had “executed an appropriate nondisclosure agreement with Westinghouse.” 2 All of these individuals, except for the Corporation Commission staff member, were specifically identified by the applicants. It appears that the Corporation Commission rejected the request of one of the parties to its proceeding that the contract be publicly disclosed. It did so, however, without passing upon whether the contract was legally entitled to protection against such disclosure. The Board finds it difficult to conceive of a valid cost-benefit analysis being based upon someone's estimate or guess at what the market price is, or might be, for the circumstances which are individually considered in a sales contract. The Board inclines to the view that there is a right-to-know by the public doctrine that is developing and can be extended to commercial contracts involving commodities of various kinds, whether it be drugs or nuclear fuel. There does not seem to be any magic character of one commodity over another. A restraint on public disclosure may violate any number of lawful measures, and agreements made in the course of interstate commerce to restrain or prohibit disclosure of commercial prices may violate the antitrust laws as well as infringe upon First Amendment rights. Invoking 10 CFR 2.718(i) as construed in our Seabrook decision,3 the applicants promptly moved us to direct the certification of the January 9 order to the extent that it declined to preclude the intervenors from making public disclosure of the contractual provisions. We were also asked to issue an interim protective order to obviate the controversy becoming moot pending our consideration and disposition of the motion for directed certification. We did so ex parte in ALAB-307, NRCI-76/1 17 (January 20, 1976). The effect of the protective order was that the intervenors' counsel and technical experts would promptly obtain the information which the Licensing Board had directed be disclosed; pending our further order, however, that information was not to be further disseminated by them. Id. at 18. The questions whether directed certification is warranted-and, if so, whether the ruling below should be upheld or overturned-have now been briefed and argued by the parties. The oral argument additionally encompassed a recent suggestion by the applicants that the issue of the entitlement of the intervenors to unrestricted use of the disclosed contractual provisions has been mooted by supervening developments. Upon full consideration of the positions espoused by the respective parties, and for the reasons which will be developed in this opinion, we reach the following conclusions: (1) the controversy is not moot; (2) the question presented by the Licensing Board's January 9 order is deserving of appellate consideration at this time; (3) the grounds upon which the Licensing Board rested its denial of the applicants' claim that the contractual provisions should be protected against public disclosure are insubstantial; (4) the applicants have likewise misapprehended the standards governing the determination of that claim; and (5) in the totality of circumstances, the applicants should be given an opportunity to demonstrate (if they can) that, measured against the proper standards, the claim is meritorious. 3 'Public Service Co. of New Hampshire (Seabrook Station, Units 1 and 2), ALAB-271, NRCI-75/5 478 (May 21, 1975). * The Mid-America Coalition did not file a brief or present oral argument but, instead, relied upon the submissions of the State of Kansas. Accordingly, we are directing certification under 10 CFR 2.718(i) and remanding the certified issue to the Licensing Board with instructions. Pending the outcome of the remand, the interim protective order provided in ALAB-307 shall remain in full force and effect. I The applicants' suggestion of mootness is founded upon the asserted fact that the evidentiary hearing on the nuclear fuel price contentions has been completed without there arising any need "to inquire into the costs set forth in the Westinghouse contract," or indeed, to engage in any discussion of the terms of that contract. The explanation we are given is that the applicants and the intervenors entered into an agreement respecting "the basic economic parameters to be used in considering the economics of the Wolf Creek facility and coal-fueled alternatives for the purposes of this proceeding." The agreement included, inter alia, "those aspects of nuclear fuel costs which would have been covered by the Westinghouse contract"; viz., it was stipulated that "the only fuel cost value relevant to this proceeding was [a] levelized cost of 10.5 to 11.0 mills per kilowatt hour." For its part, although not joining in the stipulation, the staff presented a cost estimate which similarly was "independent of the Westinghouse contract." In view of all these circumstances, we are told by the applicants, *** the request for unrestricted disclosure of the Westinghouse contract information is now moot. The Intervenors, the Staff and the Licensing Board received the contested fuel cost information, the Intervenors stipulated to the fuel costs to be used for the hearing, the Staff did not rely on this information, and no one sought to discuss the contested information during the course of the hearing. Unrestricted disclosure at this point is unnecessary for any purpose related to this proceeding. Having agreed that the fuel cost to be used in this proceeding is as set forth in [a table entitled "Comparison of Energy Costs Nuclear and Coal" which was attached to the suggestion of mootness], Intervenors can not now argue that information relating to one component of that fuel cost has any further relevance. In short, the applicants claim that the effect of the fuel-costs stipulation was to strip the intervenors of whatever entitlement they might otherwise have had to make use without restriction of the contract which was obtained through discovery procedures. The intervenors, however, deny that this is so; in their view, they are entitled to disclose the contract to whomever they please without regard to whether the need to introduce it into evidence has been obviated by the fuel-costs stipulation. On analysis it is manifest that, irrespective of where the right of the matter might lie, the issue thus joined is not one of mootness. The supervening developments have not eliminated the controversy as to whether the contract should be protected against unrestricted disclosure. Rather, |