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April 27, 1979


The opinion of the court was delivered by: SWEET

This action has its origin from the issuance by OSHA in November 1978, of a revised permanent standard for occupational exposure to lead. The standard is presently being challenged in an action pending in the Court of Appeals for the District of Columbia. Plaintiff's counsel has been designated "liaison counsel" by the Court of Appeals for the various petitioners and intervenors in that consolidated proceeding. On November 17, 1978, plaintiff submitted a request to OSHA for certain documents under the Freedom of Information Act ("FOIA"). Only certain documents were turned over; an administrative appeal has been filed.

On January 31, 1979 plaintiff commenced this action pursuant to the provision of 5 U.S.C. § 552(a)(4). On March 16, 1979 this court issued an opinion which directed the defendant to file a Vaughn index. Plaintiff has now moved for partial summary judgment as to two documents ("the documents") *fn1" which defendant has refused to turn over, asserting that they are exempt from the disclosure requirements of FOIA by 5 U.S.C. § 552(b)(5). *fn2" Defendant has cross-moved for partial summary judgment.

 In making the determination here required, this court has the "authority whenever it considers such action equitable and appropriate to enjoin the agency from withholding its records and to order the production of agency records improperly withheld." H.R.Rep.No.1497, 89th Cong., 2nd Sess., reprinted in U.S.Code Cong. & Admin.News 1966 at 2418, 2426 (hereinafter "H. Rep."). On the present showing equity does not require that the request be granted on this motion.

 The District of Columbia proceeding seeks review of the propriety of the OSHA decision with respect to which the documents here in issue were prepared. From the oral argument it is apparent that the documents are also the subject of a discovery demand in the Court of Appeals. That court is therefore best qualified to determine whether or not the plaintiff here is entitled to the documents. Plaintiff has not made any showing why the documents are not or cannot be available through the discovery process in the litigation for which the documents are sought. In fact, since the opposition to disclosure is premised upon the (b)(5) exemption of FOIA, the right to disclosure in the Court of Appeals would be at least equal to, if not greater than, the disclosure right under FOIA.

 Under (b)(5) "any internal memorandums which would Routinely be disclosed to a private party through the discovery process in litigation with the agency would be available to the general public." (emphasis added). H.Rep. at 2428. That is the standard which is applied when a request for internal memoranda is made under FOIA. Therefore, although in most litigation situations a particular plaintiff may obtain an otherwise non-obtainable memorandum by showing a compelling need, such an outlet is not available to those seeking discovery under FOIA.

(I)f the document sought would be routinely available to a party in civil discovery, the fifth exemption will not protect it from prompt mandatory disclosure. Environmental Protection Agency v. Mink, 410 U.S. 73, 85-86, 93 S. Ct. 827, 35 L. Ed. 2d 119 (1973). If a document is, however, privileged from civil discovery, it is exempted from mandatory disclosure under FOIA even if, in a particular case, a party in litigation could overcome the privilege by a showing of need. NLRB v. Sears, Roebuck & Co., 421 U.S. 149, n. 16, 95 S. Ct. 1504, 44 L. Ed. 2d 29 (1975).

 Merrill v. Fed. Open Market Com. of Fed. Reserve System, 184 U.S.App.D.C. 203, 208, 565 F.2d 778, 783 (1977), U.S. Appeal Pending, 436 U.S. 917, 98 S. Ct. 2260, 56 L. Ed. 2d 757; See also NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 149 n. 16, 95 S. Ct. 1504, 44 L. Ed. 2d 29 (1975); Mead Data Control, Inc. v. U. S. Dept. of Air Force, 184 U.S.App.D.C. 350, 360 n. 14, 566 F.2d 242, 252 n. 14 (1977); Firestone Tire & Rubber Co. v. Coleman, 432 F. Supp. 1359, 1371-72 and n. 23 (N.D.Ohio 1976). There has been no showing that in the District of Columbia proceeding the plaintiff is in a position in which discovery is less available to it than would be available to any party in civil discovery with OSHA.

 Furthermore, plaintiff seeks expeditious action of this court as to the request here in issue, asserting that the documents are needed for the proceeding in the District of Columbia. The affidavit in support of this motion states:

LIA's attorneys have been designated "liaison counsel" by the D.C. Court of Appeals for some 60 industry petitioners and intervenors and hence have the primary responsibility for preparing the consolidated industry brief, which must be filed in only ten weeks. In view of the complexity of the issues raised by the appeal and the logistical problems inherent in coordinating so many interested parties, the need for expedition is of paramount and obvious importance. If OSHA succeeds in delaying production of the requested documents it will be able to conceal from the appellate court the agency's failure to satisfy its statutory obligations. LIA therefore respectfully requests the Court to decide this motion promptly and to require the immediate production of the requested documents.

 There can be no showing that Congress intended FOIA to be used as a broad discovery tool for litigants in judicial proceedings. Cf. Roger J. Au & Son, Inc. v. N. L. R. B., 405 F. Supp. 1200, 1201 (W.D.Pa.1976), Aff'd, 538 F.2d 80 (3d Cir. 1976) (not a tool in administrative agency proceedings). "The Act is fundamentally designed to inform the public about agency action and not to benefit private litigants." (Citation omitted) N. L. R. B. v. Sears, Roebuck & Co., 421 U.S. 132, 143 n. 10, 95 S. Ct. 1504, 1513, 44 L. Ed. 2d 29 (1975); Chamberlain v. Alexander, 419 F. Supp. 235, 238 (S.D.Ala.1976).

 In Williams v. Internal Revenue Service, 345 F. Supp. 591 (D.Del.1972), Cert. denied, 414 U.S. 1024, 94 S. Ct. 448, 38 L. Ed. 2d 315 (1973) the court declined to exercise its equity jurisdiction where the party seeking investigatory files under FOIA was a litigant before the Tax Court. *fn3" Similarly, in N. L. R. B. v. Robbins Tire & Rubber Co., 437 U.S. 214, 98 S. Ct. 2311, 57 L. Ed. 2d 159 (1978), a case in which the (b)(7) exemption was involved, the Supreme Court refused to turn over the witnesses' statements since the party seeking them had conceded that they were solely for litigation discovery purposes and "FOIA was Not intended to function as a private discovery tool, See Renegotiation Board v. Bannercraft Clothing Co., supra, 415 U.S. (1) at 22, (94 S. Ct. 1028, 1039, 39 L. Ed. 2d 123.)" (Footnote omitted) (Emphasis in original) Id. at 242, 98 S. Ct. at 2327. Although the holding was limited to the narrow question presented, the language as to the use of FOIA was broad and not restricted to those instances in which the (b)(7) exemption is asserted.

 In United States v. Murdock, 548 F.2d 599 (5th Cir. 1977) the court refused to grant a request under FOIA where discovery under the Federal Rules of Criminal Procedure was available. Relying on the Congressional history of the statute and the language of the Supreme Court in Renegotiation Board, supra, the court stated:

In a criminal case the discovery proceedings are governed by the Federal Rules of Criminal Procedure, promulgated pursuant to 18 U.S.C.A. §§ 3771, 3772. Since Congress has the power to regulate the practice and procedures in the federal courts, Sibbach v. Wilson & Co., Inc., 312 U.S. 1, 9, 61 S. Ct. 422, 85 L. Ed. 479 (1941), had Congress intended to amend the explicit discovery procedures set forth in Rule 16, Fed.R.Crim.P., by enactment of the FOIA, it undoubtedly could have done so. No such intention appears in either the Act or its legislative history. Cf. Title Guarantee Co. v. NLRB, 534 F.2d 484, 491 (2d Cir. 1976) (U.S. appeal pending) (dealing with the effect of the FOIA on discovery under the National Labor Relations Act).
We hold that the discovery provisions of the Federal Rules of Criminal Procedure and the FOIA provide two independent schemes for obtaining information through the judicial process. Although information obtained through the FOIA may be useful in a criminal trial, we find that the FOIA was not intended as a device to delay ongoing litigation or to enlarge the ...

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