Appeal by plaintiff in an action under the Freedom of Information Act from so much of orders of the District Court for the Southern District of New York, Robert W. Sweet, Judge, as denied certain of its demands for production of records of the Occupational Safety and Health Administration and the Council on Wage and Price Stability, and cross-appeal by defendants from so much of the orders as directed disclosure of excerpts from such records. Affirmed on the appeal, reversed on the cross-appeal.
Before Lumbard, Friendly and Gurfein, Circuit Judges.
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), 5 U.S.C. § 552, and particularly exemption (b)(5), in a case where plaintiff's avowed objective in seeking agency records is to utilize them in prosecuting a petition in another circuit to review a rule promulgated by the agency. Plaintiff, Lead Industries Association, Inc. (LIA or the Association), objects to the court's refusal to direct the Occupational Safety and Health Administration (OSHA) to produce (except for certain segments) two draft reports prepared after the rulemaking hearing by outside consultants who had testified at the hearing;*fn1 the defendants appeal from the court's requiring production of several hundred excerpts from those two reports and numerous other documents.
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 §§ 6(b) and 8(c) of the Occupational Safety and Health Act of 1970, 29 U.S.C. §§ 655(b) and 657(c), notice of a proposal to promulgate a new occupational safety and health standard for exposure to lead.*fn2 The notice requested submission of written comments, data and arguments from interested parties, stated that an informal hearing might be requested, and said that after the hearing (if one was held) OSHA would issue "a final standard based on the full record of the evidence." It also explained that:
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 3).
It described as one of the major issues:
Whether the proposed permissible exposure limit to lead should be 100 ug 3 ; and whether this level incorporates an appropriate margin of safety.*fn3
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 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. 29 U.S.C. § 655(b)(8), (e).
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,*fn4 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 3 standard, see 43 F.R. 52977, did not contain substantial evidence to support the stiffer 50 ug 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.*fn5 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 by 5 U.S.C. § 552(c).
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 5 U.S.C. § 552(b)(5).*fn6 It also listed four categories not here at issue, ...