Bristol-Meyers Co. v. F. T. C.

Decision Date19 October 1978
Docket NumberBRISTOL-MEYERS,No. 77-1275,77-1275
Citation598 F.2d 18,194 U.S.App.D.C. 99
Parties, 1978-2 Trade Cases 62,227, 4 Media L. Rep. 1379 COMPANY, Appellant, v. FEDERAL TRADE COMMISSION et al.
CourtU.S. Court of Appeals — District of Columbia Circuit

Appeal from the United States District Court for the District of Columbia (D.C.Civil 76-1364).

Gilbert H. Weil, New York City, with whom Bruce R. Hafner, New York City, was on brief, for appellant.

Paul Blankenstein, Atty., Dept. of Justice, Washington, D. C., with whom Earl J. Silbert, U. S. Atty., Barbara Allen Babcock, Asst. Atty. Gen., and Leonard Schaitman, Atty., Dept. of Justice, Washington, D. C., were on brief, for appellee.

Also Jeffrey Axelrad, Lynne K. Zusman, Atty., Dept. of Justice and Jerald D. Cummins, Atty., F. T. C., Washington, D. C., entered appearances for appellee.

Before BAZELON, McGOWAN and MacKINNON, Circuit Judges.

Opinion for the Court filed by BAZELON, Circuit Judge.

Dissenting opinion filed by MacKINNON, Circuit Judge.

BAZELON, Circuit Judge.

Bristol-Myers Company seeks disclosure of certain documents prepared by the Federal Trade Commission (FTC or Commission) in the course of an investigation and administrative enforcement proceeding concerning advertising claims made by manufacturers of nonprescription, internal analgesic drugs. The district court found that the information contained in these documents is protected by exemptions 5 and 7(A) of the Freedom of Information Act, 5 U.S.C. §§ 552(b)(5) and (7)(A) (1976), and granted summary judgment for the FTC. We remand to the district court for further proceedings.

I. BACKGROUND

Bristol-Myers is presently contesting a complaint issued by the FTC in February, 1973, charging that the company has falsely advertised Bufferin, Excedrin, and Excedrin P.M. in violation of sections 5 and 12 of the Federal Trade Commission Act, 15 U.S.C. §§ 45 and 52. 1 Pursuant to the Commission's regulations pertaining to discovery, 2 Bristol-Myers has been able to gain access to various studies prepared by or for the FTC concerning consumer awareness and perceptions of analgesics products, and to scientific studies possessed by the FTC concerning the efficacy, speed of action, safety, and side effects of these products. Joint Appendix (J.A.) 121a-125a. Additionally, through resort to FOIA, 3 the company has obtained from the Commission 3,160 documents, comprising 31,742 pages, relevant to the charges contained in the complaint. J.A. 114a.

In July, 1976, Bristol-Myers brought suit in the United States District Court for the District of Columbia for disclosure of 1300 documents withheld by the Commission. J.A. 10a-12a. During the course of the district court proceeding, however, the company withdrew its request for a substantial portion of these materials. J.A. 3a-4a, 267a, 283a. Still in dispute are 327 documents, comprising 765 pages. J.A. 4a.

In support of its motion for summary judgment, the Commission filed an indexed description of the information appearing in these 327 documents. J.A. 208a-223a. The index divides the documents into nine categories, 4 summarized by the Commission as follows:

CATEGORY A.

Inter-agency memoranda.

CATEGORY B.

100 "Blue Minutes," i. e., reflections of the Commission's deliberations.

CATEGORY C.

Documents from Commissioners.

CATEGORY D.

Interview reports (of expert witnesses).

CATEGORY E.

Correspondence between staff and consultants.

CATEGORY F.

One letter discussing a witness' dissatisfaction with his compensation.

CATEGORY G.

Drafts and comments (of proposed rules, notice orders, and complaints).

CATEGORY H.

Staff written reports of interviews by counsel.

CATEGORY I.

Memoranda from files of U.S. Pharmocopeial Convention.

The Commission also filed the affidavit of James H. Skiles, an attorney in the FTC's Bureau of Consumer Protection who has been assigned to the adjudicative proceeding against Bristol-Myers. J.A. 112a-120a. The affidavit explains the Commission's justifications for invoking exemptions 5 and 7(A) of FOIA.

It was on the basis of the index and accompanying affidavit that the district court granted summary judgment for the Commission.

II. ANALYSIS

The record establishes that the Commission voluntarily disclosed the overwhelming majority of the documents requested. Its index and affidavit, on the whole, describe with particularity the nature and contents of the documents withheld, as required by our decision in Vaughn v. Rosen, 157 U.S.App.D.C. 340, 484 F.2d 820 (1973), Cert. denied, 415 U.S. 977, 94 S.Ct. 1564, 39 L.Ed.2d 873 (1974).

The withheld materials can be divided into two broad classes for purposes of analysis. The documents indexed in four Categories, A, B, C, and G, are all said to have been prepared by staff, individual Commissioners, or the Commission itself during the Commission's process of deciding whether and how to proceed against analgesics manufacturers. Brief for the Commission at 32. The documents indexed in three Categories, D, E, and H, are all said to have been prepared by staff counsel and to contain communications, including interviews, with expert consultants contacted by the Commission during the analgesics investigation. Id.

A. "Predecisional" Memoranda

The district court found that the documents indexed in Categories A, B, C, and G are shielded from disclosure by exemption 5. This exemption permits an agency to withhold "inter-agency or intra-agency memorandums or letters which would not be available by law to a party other than an agency in litigation with the agency." 5 U.S.C. § 552(b)(5).

The Commission contends that this result was correct insofar as Categories A, C and G are concerned because these memoranda are communications between and among FTC staff and Commissioners containing "advice, recommendations, opinions, analyses of potential trial or rule-making strategy and evaluations of evidence." J.A. 114a. 5 Relying on the Supreme Court's decisions in Renegotiation Board v. Grumman Aircraft, 421 U.S. 168, 95 S.Ct. 1491, 44 L.Ed.2d 57 (1965) and NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 95 S.Ct. 1504, 44 L.Ed.2d 29 (1965), as well as our decision in Sterling Drug, Inc. v. FTC, 146 U.S.App.D.C. 237, 450 F.2d 698 (1971), the Commission argues that these documents are thus "predecisional" in character and must be protected in order to "prevent injury to the quality of agency decisions." Brief for the Commission at 19-20 (Quoting Sears, supra, 421 U.S. at 151, 95 S.Ct. 1516). The Commission contends that the documents listed in Category B its so-called "Blue Minutes" are similarly exempt as deliberative material under our decision in Ash Grove Cement Co. v. FTC, 167 U.S.App.D.C. 249, 250, 511 F.2d 815, 816, Rehearing denied, 171 U.S.App.D.C. 285, 519 F.2d 934 (1975).

Bristol-Myers, on the other hand, urges that the documents indexed in these Categories may be subject to the affirmative disclosure and indexing requirements of FOIA contained in 5 U.S.C. § 552(a)(2). These requirements apply to "final opinions . . . made in the adjudication of cases," § 552(a) (2)(A), to "statements of policy and interpretations which have been adopted by the agency," § 552(a)(2)(B), and to "instructions to staff that affect a member of the public," § 552(a)(2)(C).

The interplay of exemption 5 with the affirmative provisions of FOIA on which Bristol-Myers relies presents a comparatively new issue, which the Supreme Court discussed in NLRB v. Sears, Roebuck & Co., supra. Before examining that case, however, we discuss briefly the development of principles governing exemption 5.

It is well-established that, among other purposes, exemption 5 was intended by Congress to protect "the consultative functions of government . . . ." Sears, supra, 421 U.S. at 149, 95 S.Ct. 1491 (Quoting Kaiser Aluminum & Chemical Corp. v. United States, 157 F.Supp. 939, 946, 141 Ct.Cl. 38, 49 (1958). See also EPA v. Mink, 410 U.S. 73, 86, 93 S.Ct. 827, 35 L.Ed.2d 119 (1973). S.Rep.No.813, 89th Cong., 2d Sess., 9 (1966) (hereinafter S.Rep.No.813); H.R.Rep.No.1497, 89th Cong., 2d Sess. 10 (1966) (hereinafter H.R.Rep.No.1497), U.S.Code Cong. & Admin.News 1966, p. 2418. Such protection extends generally to documents "reflecting advisory opinions, recommendations and deliberations comprising part of a process by which governmental decisions and policies are formulated." Id. 421 U.S. at 150, 95 S.Ct. at 1516 (Quoting Carl Zeiss Stiftung v. V.E.B. Carl Zeiss, Jena,40 F.R.D. 318, 324 (D.D.C.1966), Aff'd per curiam, 128 U.S.App.D.C. 10, 384 F.2d 979, Cert. denied, 389 U.S. 952, 88 S.Ct. 334, 19 L.Ed.2d 361 (1967)). Such protection was deemed necessary by Congress, the Senate Report explains, because "it would be impossible to have any frank discussion of legal or policy matters in writing if all such writings were to be subjected to public scrutiny." S.Rep.No.813, Supra, at 9. See also United States v. Nixon,418 U.S. 683, 705, 94 S.Ct. 3090, 3106, 41 L.Ed.2d 1039 (1974) ("Human experience teaches that those who expect public dissemination of their remarks may well temper candor with a concern for appearances and for their own interests to the detriment of the decision-making process.").

In seeking to implement this congressional mandate, courts have established the general principle that predecisional memoranda are privileged, 6 while postdecisional memoranda communications designed to explain a decision already made are not. 7

The Supreme Court recognized in Sears, however, that "the line between predecisional documents and postdecisional documents may not always be a bright one. Indeed, even the prototype of the postdecisional document the 'final opinion' serves the dual function of explaining the decision just made and providing guides for decisions of similar or analogous cases in the future." 421 U.S. at 152 n. 19, 95 S.Ct. at 1517.

Two aspects of the Court's holding in...

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