Consumers Union of the U.S., Inc. v. Consumer Product Safety Commission, 75-2059
| Decision Date | 25 August 1977 |
| Docket Number | No. 75-2059,75-2059 |
| Citation | 561 F.2d 349,182 U.S.App.D.C. 351 |
| Parties | CONSUMERS UNION OF the UNITED STATES, INC. and Public Citizen's Health Research Group, Appellants, v. CONSUMER PRODUCT SAFETY COMMISSION et al. |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
Alan B. Morrison, Washington, D. C., with whom Peter H. Schuck, Nancy H. Chasen, Larry P. Ellsworth, and Mark H. Lynch, Washington, D. C., were on the brief, for appellants.
Leonard Schaitman, Atty., Dept. of Justice, Washington, D. C., with whom Rex E. Lee, Asst. Atty. Gen., Earl J. Silbert, U. S. Atty., and Frederick D. Cohen, Atty., Dept. of Justice, Washington, D. C., were on the brief, for federal appellees.
Robert W. Steele, Washington, D. C., with whom Alan M. Grimaldi, Washington, D. C., was on the brief, for appellee General Electric Co.
Harry L. Shniderman and Eugene C. Holloway, III, Washington, D. C., were on the brief for appellees GTE Sylvania Inc. and Aeronutronic Ford Corp.
Stephen B. Clarkson, Washington, D. C., was on the brief for appellees The Magnavox Co. and Zenith Radio Corp. Thomas J. Touhey, Washington, D. C., also entered an appearance for appellees The Magnavox Co. and Zenith Radio Corp.
Fred W. Geldon, Washington, D. C., was on the brief for appellee Matsushita Electric Corp. of America.
J. Wallace Adair and James E. Burk, Washington, D. C., were on the brief for appellee Admiral Corp.
James M. Johnstone, Washington, D. C., was on the brief for appellee Motorola, Inc.
Howard J. Kaufman, Washington, D. C., was on the brief for appellee RCA Corp. Kimber E. Vought, Washington, D. C., also entered an appearance for appellee RCA Corp.
William L. Dickey, Washington, D. C., was on the brief for appellee Sharp Electronics Corp.
Lawrence R. Walders and David A. Fleischer, Washington, D. C., were on the brief for appellee Toshiba-America, Inc. William C. Triplett, II, Washington, D. C., also entered an appearance for appellee Toshiba-America, Inc.
William F. Patten and D. Clifford Crook, III, Washington, D. C., and Burton Y. Weitzenfeld, Chicago, Ill., were on the brief for appellee Warwick Electronics, Inc.
Before BAZELON, Chief Judge, and WRIGHT and ROBINSON, Circuit Judges.
Opinion for the court filed by J. SKELLY WRIGHT, Circuit Judge.
We consider here an appeal from a dismissal of an action brought by the appellants under the Freedom of Information Act (FOIA), 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.
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." 1 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.
The background of the present impasse is extensive and, in some respects, complex. In March 1974 the Commission issued a public notice 2 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. 3 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 (EIA).
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." 4 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. 5 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 6 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. 7 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. 8 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. 9
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. 10 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 requested documents would be completed by mid-March of 1975. Appellants acquiesced in that timetable, but expressly reserved the right to consider additional delay as a denial of their request. 11
On March 28, 1975 nine months after appellants' initial request the Commission issued its legal determination that the documents requested by appellants did not fall within the exemptions of the FOIA. It also stated that, even if the data were exempt from mandatory disclosure, disclosure by the Commission was nonetheless within its discretion and, in this case, appropriate in the interest of public health and safety. 12 The Commission subsequently notified the television manufacturers of its decision to release the requested documents on May 1, 1975. After receiving that notice, seven of the manufacturers filed separate actions against the Commission in the United States District Court for the District of Delaware each seeking an injunction prohibiting disclosure on the ground that release of the documents is barred by the exemptions to the FOIA and certain portions of the Consumer Product Safety Act, 15 U.S.C. § 2051 et seq. (Supp. V 1975). 13 Five other television manufacturers filed similar separate actions in the United States District Court for the Southern District of New York, 14 the United States District Court for the Northern District of New York, 15 and the United States District Court for the Western District of Pennsylvania. 16 In all of the actions the manufacturers applied for temporary restraining orders prohibiting release of the documents pending determination of their motions for preliminary injunctions. The Commission consented to the temporary restraining orders in at least some of the cases. 17 Subsequently the individual actions filed by the television manufacturers were consolidated in the District of Delaware. 18 Even though Rule 65(b) of the Federal Rules of Civil Procedure has been held to limit the duration of temporary restraining orders to a total of 20 days, absent consent by the party against whom the order was directed, Sims v. Greene, 160 F.2d 512, 516 (3d Cir. 1947), the Commission did not object to requests for further extensions of the temporary restraining orders, with the result that oral argument on the manufacturers' preliminary injunction motions was not heard until July 23, and the stays against the Commission's releasing the information continued until...
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