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SLESIN v. ADMINISTRATOR

October 2, 1986

LOUIS SLESIN, Plaintiff,
v.
ADMINISTRATOR, OCCUPATIONAL SAFETY AND HEALTH ADMINISTRATION, Defendant



The opinion of the court was delivered by: LEVAL

OPINION AND ORDER

PIERRE N. LEVAL, U.S.D.J

Plaintiff, Louis Slesin, seeks disclosure under the Freedom of Information Act 5 U.S.C. § 552, of various documents of the Occupational Safety and Health Administration (OSHA) relating to the regulation of nonionizing radiation. OSHA has identified nine documents as responsive to plaintiff's request, has released three in their entirety as well as portions of five others. One document has been withheld. Defendant moves for summary judgment that the redacted discussions are exempt from disclosure under Exemption 5, 5 U.S.C. 552(b)(5). Plaintiff cross-moves for in camera inspection of the redactions and for summary judgment. Plaintiff's cross-motion is denied. Summary judgment is entered for defendants.

 Background

 In 1971, OSHA adopted standards for exposure to nonionizing radiation--electromagnetic radiation in the radiofrequency (RF) and microwave frequency ranges of the spectrum. This radiation is emitted from a number of sources, including radar, communications systems, broadcast transmitters and microwave ovens. According to OSHA, nearly 9 million workers are exposed to such radiation in the regular course of their employment. The 1971 regulation, codified at 29 C.F.R. § 1910.97, stated that an exposure of 10 mW Ö2 (milliwatts per square centimeter) over a six minute period "should not be exceeded without careful consideration of the reasons for doing so."

 OSHA enforced § 1910.07 by citing and sometimes penalizing employers who exceeded the 10 mW Ö2 standard in their workplace. This standard was rendered unenforceable in 1977, however, when the Occupational Safety and health Review Commission ruled that the word "should" meant that the standard was merely advisory, rather than mandatory. Swimline Corp. 1977 O.S.H.Dec. (CCH) P 20,379. Thereafter, OSHA sought to enforce the nonionizing radiation standard under the "general duty clause," § 5(a)(1) of the Occupational Health and Safety Act, 29 U.S.C. §§ 650 et seq. This too was brought to a halt when the Review Commission ruled that advisory standards could not be enforced through the general duty clause. A. Prokosch & Sons, 1080 O.S.H.Dec. (CCh) P 24,430, OSHA then published notice that it would revoke many of its advisory standards, including § 1910.97, see 47 Fed. Reg. 23,477 (1982), but after receiving adverse public comment decided to retain it, 49 Fed. Reg. 5318 (1984). During the interim period, "OSHA engaged in extensive deliberations addressing the desirability and feasibility of issuing a revised health standard for nonionizing radiation." Strobel Decl. § 13. It is the documents generated during these deliberations that are the subject of this litigation.

 Discussion

 Under the Freedom of Information Act (FOIA), federal agencies are obligated to make available for public inspection vast amounts of information, including "those statements of policy and interpretations which have been adopted by the agency and are not published in the Federal Register." § 552(a)(2)(B). Certain specifically delineated categories of information are exempted, § 552 (b)(1)-(b)(9). In any action challenging the withholding of material under a subsection (b) exemption, the district court "shall determine the matter de novo, . . . . and the burden is on the agency to sustain its action." § 552(a)(4)(B).

 In the instant case, OSHA claims that the withheld portions fall squarely within Exemption 5, *fn1" § 552(b)(5), which excludes:

 inter-agency or intra-agency memorandums or letters which would not be available to a party other than an agency in litigation with the agency

 There is a wealth of case law interpreting this provision. As construed by the Supreme Court, Exemption 5 calls for "the withholding of all papers which reflect the agency's group thinking in the process of working out its policy and determining what its law shall be." N.L.R.B. v. Sears, 421 U.S. 132, 153, 95 S. Ct. 1504, 1517-18, 44 L. Ed. 2d 29 (1975), quoting, Davis, The Information Act: A Preliminary Analysis, 34 U.Chi.L.Rev. 761 797 (1967). Or, in the words of the D.C. Circuit, in order to be exempt "the document must be a direct part of the deliberative process in that it makes recommendations or expresses opinions on legal or policy matters." Vaughn v. Rosen, 173 U.S. App. D.C. 187, 523 F.2d 1136, 1144 (D.C. Cir. 1975). Factual material, however, must be disclosed, Soucie v. David, 145 U.S. App. D.C. 144, 448 F.2d 1067, 1077 (D.C. Cir. 1971) (Bazelon, Ch.J.), unless it is so "'inextricably intertwined' with policy making recommendations" that its separate disclosure would be impossible, Lead Indus. Ass'n v. OSHA, 610 F.2d 70, 85 (2d Cir. 1979) (Friendly, J.). See also EPA v. Mink, 410 U.S. 73, 92, 93 S. Ct. 827, 838, 35 L. Ed. 2d 119 (1973). Except for such "inextricably intertwined" material, the statute dictates that "[a]ny reasonably segregable portion of the record shall be provided to any person requesting such record after deletion of the portions which are exempt . . . . " § 552(b).

 In order to apply these criteria to a particular document in issue, it is necessary to situate the document and understand "the role it played in the administrative process." Lead Indus., supra, at 80. OSHA's decisional process is complex. Final decision-making authority rests with the Secretary of Labor, but development of policy is carried on under the direction and supervision of the Assistant Secretary for Occupational Safety and Health. Before the Assistant Secretary determines if promulgation of a new health standard is appropriate, the OSHA staff examines the relevant health, scientific, technological and economic considerations. Various reports are submitted to OSHA's Regulation Review Committee, and then, if approved, to the Assistant Secretary, with comments or modifications if necessary. The Assistant Secretary may then, as he did in this case, instruct that a Draft Advanced Notice of Proposed Rulemaking and a Draft Options Memo be prepared.

 It is plaintiff's contention that the documents produced in this process, if fully disclosed, would reveal a fundamental shift in OSHA policy from a long tradition of protecting workers from nonionizing radiation to the present lack of enforceable standards. Thus, plaintiff argues, the opinions and interpretations included in the redacted materials which counsel in favor of non-enforcement, "embody the agency's effective law and policy," N.L.R.B. v. Sears, supra, at 153; 93 S. Ct. at 1517, and should be disclosed. This reading of the facts is unsubstantiated and unsupportable.

 The agency's interpretation of the standard as non-mandatory was commanded by the above-cited decisions of the Review Commission. There is no support for plaintiff's contention that the change resulted from any unannounced internal policy decisions. The record reflects that OSHA has at various times since 1980 considered returning to an enforceable standard. No such decision has yet been made. But neither has a final decision been made not to do so. Indeed, OSHA has publicly advised that § 1910.97 is within the class of regulations for which mandatory provisions may be proposed in later, scheduled revisions. 49 Fed. Reg. 5319 (1984). Thus, as to the issuance of enforceable standards to fill the present gap in coverage, OSHA is still in the deliberation stage. That does not, however, end the inquiry, for "pre-decisional materials are not exempt merely because they are predecisional materials are not except merely because they are ...


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