UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT
CONSUMERS UNION OF THE UNITED STATES, INC. and PUBLIC
Rehearing Denied August 25, 1977. Vacated January 16, 1978.
Appeal from the United States District Court for the District of Columbia (D.C. Civil Action No. 75-0705).
Bazelon, Chief Judge, and Wright and Robinson, Circuit Judges. Opinion for the court filed by Circuit Judge Wright.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE WRIGHT
We consider here an appeal from a dismissal of an action brought by the appellants under the Freedom of Information Act , 5 U.S.C. § 552 (1970 & Supp. V 1975). They seek to obtain, from the Consumer Product Safety Commission, reports which various television manufacturers have submitted on television-related accidents.
For the reasons stated below, we reverse the District Court's dismissal of the plaintiffs' action and remand the case for further proceedings. I. THE PARTIES
Appellant Consumers Union is a nonprofit consumer organization. It provides information - through its monthly magazine Consumer Reports and through other means - on the merits, defects, dangers, and comparative efficacy of consumer goods, including television sets. Appellant Public Citizen, also a nonprofit organization, funds the Health Research Group which conducts research and publishes information for consumers relating to potential hazards to health and safety from consumer products.
Appellee Consumer Product Safety Commission is an independent regulatory agency established by Congress in 1972 pursuant to its enactment of the Consumer Product Safety Act, 15 U.S.C. § 2051 et seq. (Supp. V 1975). The Commission's purpose is to help implement the Act's policy of establishing "comprehensive and effective regulation over the safety of unreasonably hazardous consumer products." *fn1 Several of the officers of the Commission and 12 companies that manufacture television sets and do business in the District of Columbia were, together with the Commission, also named as defendants below and are also appellees before this court. II. BACKGROUND
The background of the present impasse is extensive and, in some respects, complex. In March 1974 the Commission issued a public notice*fn2 announcing that it would hold a public hearing to investigate hazards encountered during operation of television receivers and to consider the necessity of developing safety standards for such receivers. In the notice the Commission requested certain technical information and data on television-related accidents from manufacturers of television sets and component parts. In particular the Commission requested that the manufacturers submit all accident reports collected since the National Commission on Product Safety held hearings on the subject in 1969.*fn3 Although a few manufacturers complied with the Commission's request, the principal response consisted of a six-page summary of accident data supplied by the Electronics Industry Association .
After reviewing the data voluntarily submitted, the Commission concluded that the "information submitted to the Commission by the EIA on behalf of the [companies did] not satisfy the Commission's request."*fn4 Accordingly, on May 13, 1974 the Commission, acting pursuant to 15 U.S.C. § 2076(b)(1) (Supp. V 1975), sent special orders to 25 manufacturers seeking specified information.*fn5 In the cover letter accompanying the special orders the Commission noted the possibility of a request for public access to this information via the FOIA, and the manufacturers were instructed to identify data claimed to be exempt from public disclosure and to substantiate any such claims. Claims of confidentiality accompanied the responses of most manufacturers. Again the Commission reviewed the submitted data and again the Commission found that certain of the manufacturers had not complied with the request. Thus on July 26, 1974 subpoenas duces tecum were issued to the appellee manufacturers and three other manufacturers*fn6 requiring production of specified technical information and all television-related accident data.
Appellants' first request for access, under the FOIA, to data submitted by the manufacturers was in June 1974 and pertained to the documents submitted in response to the Commission's special orders of the previous month.*fn7 Although appellants were given access to those reports for which confidentiality was not claimed by the manufacturers, they were not allowed access to documents which the manufacturers claimed were exempt from the FOIA.*fn8 Instead, in August 1974 the Commission informed the manufacturers of appellants' FOIA request and again directed the manufacturers to substantiate their claims of confidentiality. The Commission also extended appellants' FOIA request to the additional data which the Commission later subpoenaed from the manufacturers.*fn9
Appellants subsequently limited their request to exclude documents protected by the attorney-client privilege or the work product doctrine and those portions of documents that contained names and addresses of accident victims. Even with this limitation, however, appellants' request went unfulfilled.*fn10 In October 1974, therefore, four months after their initial request, appellants informed the Commission that they would consider any further delay to be a denial. As a result of that communication, representatives of appellants and the Commission met in November 1974 and agreed upon a timetable for completion of the Commission's review of the manufacturers' submissions. It was estimated that the Commission's legal determination as to availability of the ...