LEAD INDUSTRIES ASSOCIATION, INC., Plаintiff-Appellant-Cross-Appellee, v. OCCUPATIONAL SAFETY AND HEALTH ADMINISTRATION et al., Defendants-Appellees-Cross-Appellants.
Nos. 220, 291, Dockets 79-6141, 79-6146
United States Court of Appeals, Second Circuit
Argued Sept. 10, 1979. Decided Oct. 18, 1979.
610 F.2d 70 | 60 A.L.R.Fed. 390 | 7 O.S.H. Cas. (BNA) 1820 | 1979 O.S.H.D. (CCH) P 23,987
David M. Jones, Asst. U. S. Atty., New York City (Robert B. Fiske, Jr., U. S. Atty., S. D. N. Y., Michael H. Dolinger, Asst. U. S. Atty., New York City, of counsel), for defendants-appellees-cross-appellants, Occupational Safety and Health Administration et al.
Before LUMBARD, FRIENDLY and GURFEIN, Circuit Judges.
FRIENDLY, Circuit Judge:
This appeal and cross-appeal from orders of Judge Sweet in the District Court for the Southern District of New York require us to pass upon the application of the Freedom of Information Act (FOIA),
An understanding of the issues on appeal requires some background:
It has long been known that absorption of lead (Pb) by workers exposed to it involves health hazards. The then Secretary of Labor published in the Federal Register of October 3, 1975, 40 F.R. 45934, pursuant to
The proposed standard reduced the permissible employee exposure limit to an 8-hour time-weighted average concentration, based on a 40-hour workweek of 100 micrograms of lead per cubic meter of air (100 ug/m 3).
It described as one of the major issues:
Whether the proposed permissible exposure limit to lead should be 100 ug/m 3 ; and whether this level incorporates an appropriate margin of safety.3
A hearing began in Washington on March 15, 1977 and lasted seven weeks; shorter hearings were held in April in St. Louis and in May in San Francisco. Further hearings were held for several days in November and one in December. Final certification of the hearing record of some 40,000 pages was completed on August 8, 1978, see 43 F.R. 52953 (1978).
On November 14, 1978, the Assistant Secretary of Labor for Occupational Safety and Health published the final standard, to be effective February 1, 1979, 43 F.R. 52952, 53007-14. This limited occupational exposure to lead to 50 ug/m 3, the agency stating that:
The basis for this action is evidence that exposure to lead must be maintained below this level to prevent material impairment of health or functional capacity to exposed employees.
The new standards were preceded by a preamble of 55 pages which sought to explain inter alia why, on the basis of the record, the more stringent standard was required and was feasible. A week later the Department of Labor published, 43 F.R. 54354, some 155 pages of attachments to the preamble dealing with both medical and economic aspects of the standard, allegedly on the basis of record materials. The preamble and attachments were published pursuant to a statutory requirement that the Secretary provide a statement of reasons whenever promulgating a new standard or substantially changing an existing consensus standard.
II.
Literally in a matter of seconds after the filing of the standard, petitions for review were filed in the Fifth Circuit by LIA and in the Third Circuit by the United Steelworkers of America. The actions were eventually transferred to the Court of Appeals for the District of Columbia,4 where they were consolidated with a number of other petitions under the name of United Steelworkers of America v. Ray Marshall, et al., Docket No. 79-1048. LIA and members of the industry attacked the standard on the grounds, inter alia, that the record, which admittedly had been primarily concerned with the need for and feasibility of a 100 ug/m 3 standard, see 43 F.R. 52977, did not contain substantial evidence to support the stiffer 50 ug/m 3 requirements, and that the proceedings had been contaminated by impermissible contacts between the Secretary of Labor who promulgated the regulation and agency staff and outside consultants who had presented controversial views during the rulemaking proceeding. See Hercules Inc. v. EPA, 194 U.S.App.D.C. 172, 200-04, 598 F.2d 91, 119-23, 127 (D.C.Cir.1978).
On November 17, 1978, counsel for LIA submitted to Grover C. Wrenn, Director of OSHA‘s Health Standards Program, a written request under FOIA that he furnish or make available for inspection and copying five categories of documents.5 The request went on to say:
If any part of the documents requested above discloses inter-agency or intra-agency communications which reflect deliberative or policy-making processes (rather than factual or investigatory reports) and which, in your opinion, fall within the exclusion specified in
5 U.S.C. § 552(b)(5) , we request that the excluded matters be identified and that the remainder of the document or documents be produced as required by5 U.S.C. § 552(c) .
Candidly stating that:
The documents specified above are being sought for use in connection with the judicial review of the final lead standard,
the letter asked that the requested documents be furnished “as promptly as possible to avoid the necessity for formal court action.”
Mr. Wrenn responded on December 22, 1978. OSHA released five items (or categories of items) unnecessary to describe. OSHA‘s letter listed nine items (or categories of items) which it described as containing “opinions, recommendations and evaluations intended to influence OSHA‘s decisions, regarding the development of the final lead standard” and thus exempt under
LIA promptly took an administrative appeal to the Solicitor of Labor,
Simultaneously with its FOIA request to OSHA, LIA filed a request with CWPS for documents described in the margin.7 This letter contained the same qualifications and statements of purpose as the letter to OSHA. On January 26, 1979, CWPS’ General Counsel partially denied the request on the basis of
Without awaiting decision of its OSHA appeal or attempting an administrative appeal to the Director of CWPS,
Activity then shifted back to the Court of Appeals for the District of Columbia Circuit. American Smelting & Refining Company (ASARCO), an important producer of lead and a petitioner for review of the new standards, moved on March 28, 1979, to supplement the record and for discovery. Supplementation was sought with respect to certain exhibits attached to an affidavit of counsel for LIA in this action which described its progress. The attached exhibits included a transcript of a controversial speech delivered by Assistant Secretary of Labor for Occupational Safety and Health and Director of OSHA Eula Bingham to a meeting of the United Steelworkers Union (exhibit 1) and a transcript of the press conference at which the final standard was announced (exhibit 91); certain documents filed in connection with this FOIA litigation, including the LIA request of November 17 (exhibit 2); the Wrenn response of December 22 (exhibit 3), and Judge Sweet‘s Opinion of March 16 (exhibit 3a);9 and those documents, or portions of them, voluntarily furnished LIA by OSHA in its response of December 22 (exhibits 4-90).10 The documents sought for inspection and copying were described in a proposed order as follows:
all documents which embody, refer to, or relate to instructions, suggestions, or other guidance given to any person performing functions with respect to the rulemaking, - аll documents which embody, refer to, or relate to any communications between a decisional participant and any other person with regard to the rulemaking, and
- all documents concerning the rulemaking brought to the attention of Assistant Secretary Bingham or any other decisional participant.
ASARCO suggested that if the court were not disposed to order discovery, ASARCO should be permitted to commence in the District Court for the District of Columbia “an action in the nature of a bill of discovery in aid of” the proceeding in the Court of Appeals. By order dated May 8, 1979, the Court of Appeals “lodged” most of the exhibits attached to counsel‘s affidavit pending determination whether they were to be included in the record, an issue the parties were directed to address in their briefs. Discovery was denied, without a statement of the reason.
While this had been going on in the District of Columbia Circuit, Judge Sweet, in an opinion dated April 27, 1979, denied the motions of both parties for summary judgment, without prejudice to renewal, on the basis that the Court of Appeals for the District of Columbia was “best qualified to determine whether or not the plaintiff here is entitled to the documents.” When that court denied discovery, Judge Sweet, after first ordering on June 4 that the documents be submitted for in camera review, rendered a memorandum opinion and order on June 14. He stated the governing principles to be that “documents found to be in whole or in part internal communications consisting of advice, recommendations, opinions and other material reflecting deliberative or policy making processes and not purely factual or investigatory reports fall within the (b)(5) exemption” but that “(f)actual material or facts contained in a deliberative or policy memo which are severable from it . . . or which have been publicly cited by OSHA as a basis for its action” were to be disclosed. Thirteen documents not involved in this appeal were ruled to be exempt in their entirety. Other documents were likewise held to be exempt in overwhelming part. However, the court ordered disclosure of roughly 390 excerpts “to the extent the information has not been disclosed.” The court offered the Government the option of turning over the raw factual data supporting the segments rather than the segments themselves.
The Government then renewed its motion for summary judgment on the basis that LIA had not controverted the Government‘s assertion in its statements under Rule 9(g) of the District Court that the factual material in the designated segments was in fact in the public record a claim supported by further affidavits.11 In a further opinion the judge, after reaffirming his previous position, said:
While the defendants may validly claim that the entire list of information which was ordered to be produced is exempt from disclosure because it is a part of the public record, absent such a demonstration, the documents previously described must be produced. To date, no such demonstration has been made.
Defendants were ordered to comply within five days.
The Government applied to Judge Sand, who was acting as the Emergency Judge, for a stay to enable it to make the demonstration to which Judge Sweet had referred. It introduced an affidavit of the Associate Solicitor for Occupational Safety and Health in the Department of Labor, describing how the government was preparing to make this demonstration with respect to the 390 segments by cross-indexing the facts contained in them against the 40,000 page rulemaking record. He affirmed that this monumental task could not be performed within 5 days, as seems obvious, but estimated it could be done within 30. Having been presented with an affidavit from counsel for LIA that its “need for these documents is critical” since argument in the D.C. Circuit on the petition for review wаs scheduled for the fall, and believing that Judge Sweet‘s allowing only a five-day period reflected acceptance of this position, Judge Sand denied the stay. Although the Government appealed from this denial and moved in this court for a stay, this was rendered moot by an agreement of the parties to maintain the status quo pending appeal from Judge Sweet‘s orders.
We begin our discussion by rejecting the Government‘s suggestion that LIA is precluded from prevailing in this action by the refusal of the Court of Appeals of the District of Columbia Circuit to order discovery in the review proceeding there pending. It is true that ASARCO‘s use of an affidavit by LIA‘s counsel detailing the proceedings in the district court and other circumstances might suffice to show privity between LIA and ASARCO or that, apart from privity, estoppel might be appropriate under the principle of Blonder-Tongue Laboratories Inc. v. University of Illinois Foundation, 402 U.S. 313, 91 S.Ct. 1434, 28 L.Ed.2d 788 (1971), if all its conditions were satisfied. However, it is not completely clear that the issues on ASARCO‘s motion in the District of Columbia Circuit and in this action are the same. ASARCO‘s request was based on an asserted right of a petitioner for review of an OSHA standard under
However, we do not wish our overruling of the Government‘s argument as to preclusion to be considered as approving LIA‘s decision to bring this action in the District Court for the Southern District of New York rather than in the courts of the District of Columbia.14 When we questioned LIA‘s counsel why this had been done, the responsе was that, under
It is necessary in assessing a FOIA claim to understand “the function of the documents in issue in the context of the administrative process which generated them.” NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 138, 95 S.Ct. 1504, 1510, 44 L.Ed.2d 2029 (1975). Accord, Renegotiation Board v. Grumman Aircraft Engineering Corp., 421 U.S. 168, 170, 95 S.Ct. 1491, 44 L.Ed.2d 57 (1975). Whether a particular document is exempt under (b)(5) depends not only on the intrinsic character of the document itself, but also on the role it played in the administrative process. See Montrose Chemical Corp. v. Train, 160 U.S.App.D.C. 270, 275, 491 F.2d 63, 68 (D.C.Cir.1974); Mead Data Central, Inc. v. United States Department of Air Force, 184 U.S.App.D.C. 350, 364-65, 566 F.2d 242, 256-57 (D.C.Cir.1977). The documents at issue here were developed in order to assist OSHA in discharging the statutory requirements of
LIA‘s appeal is limited to the district court‘s refusal to order disclosure (save for various segments) of two post-hearing draft reports by outside consultants who submitted evidence at the rulemaking hearings, designated respectively as the DBA and CPA reports. See note 1 supra. The DBA report, a document of 117 pages, dated January 26, 1978, prepared by David J. Burton who had testified as to the feasibility of a 100 ug/m 3 standard, and his consulting firm D. B. Associates, Inc., was responsive to a request from OSHA to analyze the feasibility of a 50 ug/m 3 standard. Feasibility is one of the criteria which the statute specifically mandates the Secretary to consider,
The public portion of the record contains part of the instructions to DBA; we set these forth in the margin.18 The record is less informative as to the impetus for the CPA report. However, the summary furnished by OSHA and our inspection indicate that it conforms to its title and analyzes the effect of various standards and degrees of compliance therewith upon the level of lead in the blood. In addition to helping formulate decisionmaking, both the DBA and CPA reports furnished material for the preamble to the final standards and the attachments thereto. Indeed, some paragraphs of the preamble are taken verbatim from these rеports.
By its cross-appeal, the Government seeks to protect from disclosure all of the segments ordered disclosed (save some thirty-nine segments, disclosure of which it is not appealing since they clearly are already available to the public). Judge Sweet ordered disclosure of segments not only from the DBA and CPA reports just discussed, but also from a revision of part of the DBA report and four additional CPA reports. The CPA reports considered general feasibility questions and the benefits and costs of the medical removal protection program which OSHA adopted as part of the standard. See 43 F.R. 52972-77 (1978). This preventive health mechanism was one of the greatest points of controversy during the rulemaking proceeding, so it is no surprise that expert assistance in analyzing the record was sought. Segments were also ordered disclosed from seven other documents produced by outside consultants,19 considering questions about the MRP program, blood lead-air lead correlation, mortality evidence on the record, costs and feasibility, and statistical procedures. Portions of five OSHA staff documents were ordered revealed. These documents analyzed record evidence concerning lead effects on the nervous, renal, blood, and reproductive systems, as well as mortality. Such effects are, of course, important in considering what standard will guarantee that “no employee will suffer material impairment of health or functional capacity,”
V.
The Supreme Court has dealt with exemption (b)(5) in four cases: EPA v. Mink, 410 U.S. 73, 85-94, 93 S.Ct. 827, 35 L.Ed.2d 119 (1973); NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 95 S.Ct. 1504, 44 L.Ed.2d 29 (1975); Renegotiation Board v. Grumman Aircraft Engineering Corp., 421 U.S. 168, 95 S.Ct. 1491, 44 L.Ed.2d 57 (1975); and Federal Open Market Committee v. Merrill, 443 U.S. 340, 99 S.Ct. 2800, 61 L.Ed.2d 587 (1979). The most important for present purposes is Mink both because it sеt the tone for the others and because it is the closest although not really close to ours on the facts. After stating that the exemption protects inter-agency communications only insofar as they “would not be available by law to a party . . . in litigation with the agency“, the Court went on to say, in somewhat of a masterpiece of understatement, that “(d)rawing such a line between what may be withheld and what must be disclosed is not without difficulties” since “the rules governing discovery in such litigation have remained uncertain from the very beginnings of the Republic.” Id. at 86, 93 S.Ct. at 835.21
In recognition of these dubieties, Justice White sought aid in the committee reports where he discerned a central concern behind the language of exemption (b)(5) that government agencies not be compelled to “operate in a fishbowl.” S.Rep. No. 813, 89th Cong., 1st Sess., Source Book 44 (1965); see also H.R.Rep. No. 1497, 89th Cong., 2d Sess., Source Book 31 (1966). Application of the exemption thus required different treatment “for materials reflecting deliberative or policy-making processes on the one hand, and purely factual, investigative matters on the other.” Id. at 89, 93 S.Ct. at 837.
Reviewing the cases available at the time of publication,22 Professor Davis has said, 1 Administrative Law Treatise § 5:33 at 405 (2d ed. 1978):
The key to all the cases is that the fifth exemption protects the deliberative materials produced in the process of making agency decisions, but not factual materials, and not agency law.
Here we have no problem of nondisclosure of agency law the prime concern in the Sears case and a substantial one in Grumman. It is clear also that the materials are all pre-decisional and thus not within the portion of the Sears case ordering disclosure of opinions of the NLRB general counsel declining to prosecute. It is clear finally that the two reports at issue on LIA‘s appeal were “deliberative“. As a result of the hearings OSHA had evidently become dissatisfied with the 100 ug/m 3 standard initially proposed and wished the advice of the consultants whether the record suggested the desirability of a more stringent standard and was adequate to support it, and, if these questions were answered affirmatively, the aid of the consultants in drafting a preamble explaining why the Assistant Secretary had opted for this.
We note preliminarily that in our view, nothing turns on the point that the DBA and CPA reports were prepared by outside consultants who had testified on behalf of the agency rather than agency staff. On this we have nothing that can usefully be added to Chief Judge Bazelon‘s statement in Soucie v. David, 448 F.2d 1067, 1078 n. 44, 145 U.S.App.D.C. 144, 155 (D.C.Cir.1971), which was adopted and followed in Wu v. National Endowment for Humanities, 460 F.2d 1030, 1032 (5 Cir. 1972), cert. denied, 410 U.S. 926, 93 S.Ct. 1352, 35 L.Ed.2d 586 (1973).
Accepting Mink as we must, and Professor Davis’ statement as we do, we do not find them of great assistance in dealing with the problem presented when a party to agency rulemaking seeks disclosure of documents submitted to the agency by its staff or outside consultants to assist it in rendering an informed decision upon the typically Gargantuan rulemaking record developed here. In such a case, disclosure of factual portions of the report may reveal the deliberative process of selection. See Montrose Chemical Corp. v. Train, 160 U.S.App.D.C. 270, 275, 491 F.2d 63, 68 (D.C.Cir.1974). This is not to say that all summaries are ipso facto exempt from disclosure. Disclosure of purely objective summaries of the rulemaking record may not threaten the deliberative process, although disclosure might be withheld on the different ground that the material was already available. See Bodner v. FTC, 1975-1 Trade Cases P 60,171 at 65,555 (D.D.C.1975). Here, however, the DBA and CPA reports were more than mere summaries. In assisting OSHA, the consultants were asked to draw inferences and weigh the evidence. See note 18 supra. Their function was not merely summary but analysis as well, and as such clearly implicated in the deliberative process by which the final standard was adopted and the reasoning behind it promulgated.
For the foregoing reasons we find that the District Court was correct in characterizing the bulk of the DBA and CPA reports as exempt. We turn now to the various segments ordered disclosed in these two reports and the other documents.
VI.
The district court ordered disclosure of seven segments of the DBA draft report, some 102 segments of the CPA report (mainly tables and graphs), 8 segments from a revised version of the DBA report, 52 segments from four additional CPA summaries, 37 segments from seven studies and memoranda prepared by other consultants, 83 segments from five reports prepared by persons believed to have been full-time agency staff persons, and excerpts from seven CWPS documents. The Government‘s affidavits claimed that all these documents were part of the deliberative process, the indices confirmed this, the district court did not conclude to the contrary, and despite the large number of segments ordered to be produced, some only a few lines, the district court held the great bulk of the documents to be entitled to the exemption.
The district court offered only two clues for its selection of segments in addition to the general statement quoted in Part II supra. One was that whereas inferences drawn from the public record should not be disclosed “since they reflected on the question of which facts the decision makers considered imрortant“, “(i)nferences derived from facts which became part of the final record, (i. e., inferences that became findings of fact by OSHA) are to be disclosed.” With all respect we cannot understand this; the interference with the free flow of discussion between staff (or outside consultants) and the decisionmaker depends on protection against any disclosure, not on whether the decisionmaker accepts, rejects or ignores the advice. If the judge was relying on the discussion in NLRB v. Sears, Roebuck & Co., supra, 421 U.S. at 152-53, 95 S.Ct. 1504, we believe he misconstrued it; what the Court ordered disclosed were the Appeals and Advice Memoranda of the General Counsel which concluded that no complaint should be filed and thus constituted final action by the NLRB not memoranda from subordinates recommending that course.
While we have not examined each of the 350 segments subject to this appeal with the care required to make an informed determination as to each and could not do so with any reasonable expеnditure of judicial resources or within the time frame pressed by plaintiff, we have delved deeply enough to be seriously troubled.
A determination of which if any portions of an otherwise exempt document are nonexempt must begin with a consideration of the nature of the document as a whole. Disclosure of “purely factual material” in otherwise exempt documents may be ordered only if the material “is severable without compromising the private remainder of the documents.” Mink, supra, 410 U.S. at 91, 93 S.Ct. at 838. More is required than merely plucking factual segments from the reports there must be a sensitive reference to the relation of the factual segments to the report as a whole.
With respect to the DBA and CPA reports, LIA would presumably not claim the exemption would not cover a brief memorandum saying “We think a 50 ug/m 3 standard is medically desirable for the following reasons, which are supported by the record” or an equally brief one saying “We believe a 50 ug/m 3 standard is feasible for the following reasons which are supported by the record.” We perceive no basis in principle for saying that the exemption should be forfeited or the courts burdened with nigh impossible tasks because the two reports here at issue went into muсh greater factual detail. Neither do we see why the exemption should be lost because a memorandum from staff or outside experts proceeded beyond a barebones summary of the record and drew inferences therefrom. We believe the proper rule, consistent with Mink and the other Supreme Court cases and most of the lower court decisions, notably Montrose Chemical Corp. v. Train, supra, and Mead Data Central, Inc. v. United States Department of Air Force, 184 U.S.App.D.C. 350, 368-69, 566 F.2d 242, 260-61 (D.C.Cir.1977), is this: If the factual materials are “inextricably intertwined” with policy making recommendations so that their disclosure would “compromise the confidentiality of deliberative information that is entitled to protection under Exemption 5,” Mink, supra, 410 U.S. at 92, 93 S.Ct. at 838, the factual materials themselves fall within the exemption. See also Attorney General‘s Memorandum on the 1974 Amendments to the Freedom of Information Act 14 n. 8 (1975). Disclosing factual segments from the DBA and CPA summaries would reveal the deliberative process of summarization itself by demonstrating which facts in the massive rulemaking record were considered significant by the decisionmaker and those assisting her. See Washington Research Project, Inc. v. HEW, 164 U.S.App.D.C. 169, 181-82, 504 F.2d 238, 250-51 (D.C.Cir.1974), cert. denied, 421 U.S. 963, 95 S.Ct. 1951, 44 L.Ed.2d 450 (1975) (“the judgmental element arises through the necessity to select and emphasize certain facts at the expense of others“).
Beyond what has been said up to this point, if the proportion of nonexempt factual matеrial is relatively small and is so interspersed with exempt material that separation by the agency and policing of this by the courts would impose an inordinate burden, the material is still protected because, although not exempt, it is not “reasonably segregable,” under the final clause of
In an elaborate footnote in its brief (p. 50), the Government lists numerous instances of inconsistencies in the court‘s designation of segments. Our examination of these, necessarily but unhappily made without benefit of adversarial comment, leads us to believe that the Government is largely right. Two tables ordered to be disclosed are identical with those appearing at 43 F.R. 52967 and 54400. Some of the segments are simply trivial; since our disclosure of such banalities cannot impair any government interest, we reproduce a few in the margin24 simply to show the uselessness of much of the disclosure that was directed. Finally, some of the segments are unintelligible without the explanation offered in material not ordered to be disclosed.
We note these deficiencies not so much in criticism of the district judge‘s performance of his task within the time frame he imposed upon himself but rathеr as showing that he should not have undertaken it. The documents submitted for inspection consist of 540 pages dealing, for the most part, with highly technical matters which the most competent judge, unless peculiarly experienced in the field, would find it difficult to understand without assistance from counsel and/or experts; in addition the task which the judge assumed required familiarity with the 55 page closely printed preamble to the standards and the 155 pages of attachment published in the Federal Register. Indeed insofar as the judge relied on the point that certain matters were not in the public record, he would have to search the 40,000 pages of the record, which were not before him, and then compare them with the reports submitted in camera. Yet the judge, doubtless under the impulse of the direction in
We think it was error for the judge to have ordered in camera inspection, and particulаrly to have done so without hearing argument specifically addressed to that issue.26 Here again we find the guiding principle in Mink, supra, 410 U.S. at 92-93, 93 S.Ct. at 839. Mr. Justice White there said that while “(p)lainly, in some situations, in camera inspection will be necessary and appropriate . . . it need not be automatic.” Although Congress thereafter in 1974 added
In Weissman v. C. I. A., 565 F.2d 692, 696-98 (D.C.Cir.1977), a(b)(1), (b)(3), and (b)(7) case, the court emphasized the need for a restrained exercise of discretion with respect to in camera inspection where the Government‘s affidavits and actions made a plausible case for exemption, and also discussed the problem here presented, where although a document is generally exempt, “some bits of non-exempt material may be found among exempt material, even after a thorough agеncy evaluation.” The court rejected the argument that this possibility automatically triggered in camera inspection. Taking note of the 1974 amendment of
It is only where the record is vague or the agency claims too sweeping or suggestive of bad faith that a District Court should conduct an in camera examination to look for segregable non-exempt matter.
and
Where it is clear from the record that an agency has not exempted whole documents merely because they contained some exempt material, it is unnecessary and often unwise for a court to undertake such an examination.
These considerations are peculiarly applicable here. The Government submitted affidavits which on their face indicated that the documents fell within exemption (b)(5), and detailed indices fully comрlying with the requirements of Vaughn v. Rosen, supra, 157 U.S.App.D.C. 340, 484 F.2d 820, which were strongly supportive of that claim. The most that plaintiff can argue with any show of reason is that some documents, predominantly exempt, may contain some non-exempt factual material, some of which may not be available in the public record. Thorough testing of that claim would require, not the maximum of ten days which the district judge devoted to the task, but at least that many weeks, very likely with the aid of a special master, see Vaughn v. Rosen, supra, 157 U.S.App.D.C. at 348, 484 F.2d at 828, who, unless himself an expert in the pertinent medical and economic problems, would require the aid of specialists on these subjects. After decision by the district court, we then would be obliged to conduct an equally searching review, see Vaughn v. Rosen, supra, 157 U.S.App.D.C. at 345, 484 F.2d at 825, hopefully aided by a report from the special master, an opinion by the district judge, or both, all or parts of which, however, would have to be kept secret from the requester until our decision was rendered and perhaps thereafter. By the time the needed process had been completed in the district court and here, the review petition in the D.C. Circuit would long since have been argued and decided unless that court were to stay its proceedings. And all this to the end that plaintiff, who is entitled under
So much of the order as refused disclosure is affirmed; so much as required disclosure is reversed. The district court is directed to dismiss the complaint.
Notes
- All documents constituting, or referring or relating to, any communication between OSHA, on the one hand, and Nicholas Ashford, Dale Hattis, Center for Policy Alternatives, David J. Burton, D. B. Associates, Inc. (or any officer or employee thereof), John Short & Associates, Inc., Dr. Sergio Piomelli, Dr. Daniel Teitelbaum, Dr. Ruth Lilis, Dr. Alfred Fischbein, and/or Dr. Anna Maria Seppalainen, on the other, subsequent to January 1, 1977, concerning the Standard and/or the Record.
- All documents constituting, or referring or relating to, any contract or agreement with, or requests to, any person other than OSHA, the Office of the Solicitor or the Department of Labor for the evaluation, appraisal and/or preparation of written summaries or descriptions of the Record, and also all documents constituting, or referring or relating to, instructions with respect to such contracts, agreements or requests. (For purposes of this Request No. 2, the terms “OSHA“, “Office of the Solicitor“, and “Department of Labor” shall not include any agent, independent contractor or other person not a full-time, salaried employee of those governmental units.)
- All documents not protected by the attorney-client privilege constituting, or referring or relating to, any communication not protected by the attorney-client privilege between OSHA and the Office of the Solicitor subsequent to January 1, 1977, concerning OSHA‘s authority to promulgate, issue or enforce the Standard.
- All documents constituting, or referring or relating to, any communication between OSHA, on the one hand, and any union or labor organization (or officer, employee, attorney, agent or representative thereof), on the other, subsequent to January 1, 1977, concerning the Standard and/or the Record.
- All documents constituting, or referring or relating to, any communication between OSHA, on the one hand, and CEA, COWPS and/or RARG, on the other, subsequent to January 1, 1977, concerning the Standard and/or the Record.
inter-agency or intra-agency memorandums or letters which would not be available by law to a party other than an agency in litigation with the agency.
(2) All documents relating or referring to the cost, feasibility and/or economic or inflationary impact of the Standard.
(3) All documents constituting, or relating or referring to, any communication between COWPS on the one hand, and CEA and/or RARG, on the other, concerning the Standard and/or the Record.
Note: References supplied that are not in the record are for your own information only and should not be used as documentation for any conclusions.
Further light is afforded by an Executive Summary which reads:
This report is submitted pursuant to the requirements of Task Order No. 3, Cоntract No. J-9-F-6-0227. The report summarizes the technical feasibility of compliance with two proposed standards for lead in Battery Manufacturing, Secondary Smelting, Primary Smelting, and other industries.
In order to carry out this Task Order, all of the relevant hearing Exhibits and transcripts were obtained by DBA for review. All documents were appropriately read, abstracted and analyzed for relevance in answering the questions of technical feasibility.
During the past several years, OSHA has assembled a mass of data, visited scores of plants, published a proposed standard, invited public comment and participation, sponsored economic and environmental impacts studies, conducted hearings, held numerous meetings and is now preparing to finalize a permanent standard for occupational exposure to lead. This study has explored the technical feasibility of compliance with an airborne permissible exposure limit of 100 ug/m 3 standard, and with a 50 ug/m 3 standard. The question of technical feasibility must be resolved from among the massive amount of information which has been accumulated in the official record during the rule-making process.
D. B. Associates, Inc. (DBA) was issued a Task Order to (1) search the record for applicable data, (2) evaluate that data, and (3) write a report which can be used by OSHA in the development of the preamble to the standard.
This report represents the results of that task. An internal OSHA memorandum outlined a number of issues and objectives for the study. These general issues were rewritten by DBA in specific language such that specific answers could be formulated. All memoranda and directives associated with this project are found in the Appendix.
For example, if only ten percent of the material is non-exempt and it is interspersed line-by-line throughout the document, an agency claim that it is not reasonably segregable because the cost of line-by-line analysis would be high and the result would be an essentially meaningless set of words and phrases might be accepted. On the other extreme, if a large proportion of the information in a document is non-exempt, and it is distributed in logically related groupings, the courts should require a high standard of proof for an agency claim that the burden of separation justifies nondisclosure or that disclosure of the non-exempt material would indirectly reveal the exempt information. Of course it is the cases in between these extremes which, no doubt, will more frequently present themselves to the courts and provide the true test for the procedures we have suggested. We therefore urge that they not be viewed as a thaumaturgic formula, but as a potentially useful approach, to be tried and improved by experience, as the courts struggle to strike a balance between the unavoidably conflicting values implicated by the segregability requirement of the FOIA.
Page A-853: “Section 108(a)(2) and Section 109 of the Clean Air Act require EPA to set a standard for hazardous pollutants. The Act specifically states that the level ‘shall reflect the latest scientific knowledge useful in indicating the kind and extent of all identifiable effects on public health and welfare which may be expected from the presence of such pollutant in the ambient air, in varying quantities.’ ”
Page A-872: “OSHA‘s original NPRM called for a 100 ug air standard. The final rule will call for a phased 50 ug air standard.”
Page A-895: “In 1975 the Natural Resources Defense Council (NRDC) and others brought suit against the EPA to list lead under Section 108 of the Clean Air Act as a pollutant for which air quality criteria would be developed and a National Ambient Air Quality Standard established under Section 109 of the Act. The Court ruled in favor of NRDC and EPA listed lead on March 31, 1976, and proceeded to develop аir quality criteria.”
Page A-458: “Two studies of air lead-blood lead relationships in the primary smelting industry were performed by ASARCO. The ‘El Paso Study’ dealt with workers at one plant in Texas.”
Page A-859: “The Occupational Safety and Health Administration is in the process of finalizing its standard for occupational exposure to lead.” (This sentence was repeated at pages A-862 and A-874 and again ordered disclosed.)