Wright v. Occupational Safety and Health Admin.

• Decision Date: 01 June 1987
• Docket Number: No. 86-2208,86-2208
• Citation: 822 F.2d 642
• Parties: , 13 O.S.H. Cas.(BNA) 1324, 1986-1987 O.S.H.D. ( 27,954 Joyce D. WRIGHT and Donna Smith, Co-Administrators of the Estate of George E. Smith, Jr., Plaintiffs-Appellants, v. OCCUPATIONAL SAFETY AND HEALTH ADMINISTRATION, and United States Department of Labor, an agency of the United States of America, Defendants-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 642

822 F.2d 642

56 USLW 2043, 13 O.S.H. Cas.(BNA) 1324,

1986-1987 O.S.H.D. ( 27,954

Joyce D. WRIGHT and Donna Smith, Co-Administrators of the Estate of George E. Smith, Jr., Plaintiffs-Appellants, v. OCCUPATIONAL SAFETY AND HEALTH ADMINISTRATION, and United

States Department of Labor, an agency of the

United States of America, Defendants-Appellees.

No. 86-2208.

United States Court of Appeals, Seventh Circuit.

Argued Jan. 12, 1987.

Decided June 1, 1987.

Richard E. Steck, Steck & Schoefield, P.C., Chicago, Ill., for plaintiffs-appellants.

Richard Galgoey, Asst. U.S. Atty., Anton R. Valukas, U.S. Atty., Chicago, Ill., for defendants-appellees.

Before CUMMINGS, CUDAHY and EASTERBROOK, Circuit Judges.

CUDAHY, Circuit Judge.

Plaintiffs appeal from an order of the district court which held that the information that they sought to obtain from the Occupational Safety and Health Administration ("OSHA") under the Freedom of Information Act (the "FOIA"), 5 U.S.C. Sec. 552, is exempt from disclosure. For the reasons discussed below, we affirm the ruling of the district court in part, vacate in part and remand for further proceedings.

I.

Plaintiffs are the co-administrators of the estate of George E. Smith, who died as a result of a fire and explosion that occurred at a facility owned by Union Oil Company of California ("Union Oil"). The administrators brought a wrongful death suit against Union Oil in state court, seeking compensatory and punitive damages in excess of $15,000,000. To aid in the prosecution of that suit, they sought records compiled by OSHA during the course of its investigation of the accident. The purpose of OSHA's investigation was to determine whether the accident occurred as a result of Union Oil's failure to comply with the Occupational Safety and Health Act, 29 U.S.C. Sec. 651 et seq. (the "OSH Act"). OSHA ultimately issued citations charging Union Oil with violations of the OSH Act and assessed penalties in the amount of $31,000. ¹ The company filed a notice of contest on January 10, 1985, challenging the proposed penalties. On February 19, 1985, OSHA initiated proceedings before the Occupational Safety and Health Review Commission (the "OSHRC") to enforce collection of the assessed penalties. Brock v. Union Oil of California, No. 85-0111. The trial commenced in this case on April 21, 1987 before an administrative law judge, and it is expected to continue for approximately six weeks.

In January 1985, the administrators requested under the FOIA that OSHA release to them the "complaint and back up report" generated by OSHA during the course of its investigation. OSHA denied the administrators access to almost all of the records compiled during the course of its investigation, releasing only the citations and notice of penalty issued against Union Oil. OSHA claimed that the remaining documents requested were exempt from release under section 552(b)(7)(A) of the FOIA ("Exemption 7(A)"). ² The plaintiffs then filed an administrative appeal with the Solicitor of Labor. The Solicitor failed to respond in a timely manner, and the plaintiffs sued OSHA in district court. The Solicitor subsequently denied the administrative appeal. ³

In the district court, OSHA moved for summary judgment, claiming that Exemption 7(A) permitted it to withhold the remaining requested documents. To justify nondisclosure under Exemption 7(A), an agency must show that the records were compiled for law enforcement purposes and that disclosure might impede enforcement proceedings. The plaintiffs conceded the first prong of this test, and the district court found that OSHA established that disclosure of the documents would hinder its enforcement proceeding against Union Oil. In support of its summary judgment motion, OSHA submitted the affidavits of Kenneth Yotz, the Assistant Regional Administrator for OSHA's Region V, and Sofia Petters, an attorney with the Department of Labor's Office of the Solicitor. In the Petters affidavit, OSHA broke down the withheld documents into five general categories, and it detailed why the release of the requested information would impede its investigation. The following categories of documents were withheld:

(a) evidence and supporting information compiled by the compliance safety and health officer (the "CSHO");

(b) records reflecting the identities of employee-witnesses contacted and information related by them to the CSHO;

(c) worknotes and memoranda generated by the CSHO;

(d) correspondence between the Regional Solicitor of Labor and the Area Director of OSHA; and

(e) reference materials consulted by the CSHO during the investigation.

Petters Affidavit p 17.

In opposing the motion for summary judgment, the plaintiffs objected to the generic categories of documents provided by OSHA. The plaintiffs argued that the agency must prepare a comprehensive listing of each document cross-referenced to the FOIA exemption being asserted for each, a so-called "Vaughn index". See Vaughn v. Rosen, 484 F.2d 820, 826-28 (D.C.Cir.1973), cert. denied, 415 U.S. 977, 94 S.Ct. 1564, 39 L.Ed.2d 873 (1974). Or, alternatively, the plaintiffs contended that OSHA must submit the documents to the court for in camera review.

The district court concluded that the generic categorization approach taken by OSHA was well supported by case law. Wright v. OSHA, No. 85 C 7163, mem. op. at 4 (N.D. Ill. June 30, 1986). The court accordingly turned to an examination of the sufficiency of the reasons offered to justify exempting the documents from disclosure. The court found that release of evidence and supporting information compiled by the CSHO, information relayed by employee-witnesses and the agency's notes and memoranda might alert the company to the government's litigation strategy. Id. at 4-6. Although the documents were not being requested by Union Oil, which is the actual target of OSHA's investigation, the district court reasoned that if the information was released to the plaintiffs, the company might obtain the documents through discovery during the course of the state court suit. Id. at 5 n. 1. With respect to the correspondence between the Regional Solicitor of Labor and the Area Director of OSHA, the court concluded that this information must be protected from disclosure to encourage candor in discussions between attorney and client. Finally, the district court found that disclosure of the reference materials consulted by OSHA might reveal the theory of its case against Union Oil. Id. at 6. Accordingly, the court granted summary judgment in favor of the defendants and dismissed the suit. This appeal followed.

II.

In reviewing a district court's determination with respect to a FOIA request, we must first determine whether "the district court had an adequate factual basis for the decision rendered. If there was such a basis, [we] must decide if the decision made was clearly erroneous." Antonelli v. Drug Enforcement Admin., 739 F.2d 302, 303 (7th Cir.1984). We consider each question in turn.

A.

On appeal, the administrators argue that the government should be required to make a more particularized showing of the need to withhold the requested documents. In their brief, they contend that the government must prepare a Vaughn index. However, during oral argument, the administrators seemed to concede that the government is not required to prepare such a detailed index. Instead, they argued that the government's descriptions of the documents withheld were too conclusory to permit review by a court to determine whether the documents were in fact exempt from disclosure under the FOIA.

As the appellants conceded at oral argument, courts have not universally required agencies to produce detailed Vaughn indexes in response to every FOIA request. Although in some cases a Vaughn index might be necessary to permit a court to properly review a claimed exemption, such a detailed listing is generally not required under Exemption 7(A). NLRB v. Robbins Tire & Rubber Co., 437 U.S. 214, 236, 98 S.Ct. 2311, 2324, 57 L.Ed.2d 159 (1978) (Congress did not intend that Exemption 7(A) would "prevent the federal courts from determining that, with respect to particular kinds of enforcement proceedings, disclosure of particular kinds of investigatory records while a case is pending would generally 'interfere with enforcement proceedings' "); Campbell v. Department of Health and Human Servs., 682 F.2d 256, 263, 265 (D.C.Cir.1982); Barney v. IRS, 618 F.2d 1268, 1272 (8th Cir.1980) (rejecting plaintiffs' contention "that the district court could not make a proper de novo determination without in camera inspection of the documents or requiring the government to submit a detailed index, itemizing the documents withheld and specifying the applicable exemptions"); Moorefield v. United States Secret Serv., 611 F.2d 1021, 1023-24 (5th Cir.), cert. denied, 449 U.S. 909, 101 S.Ct. 283, 66 L.Ed.2d 139 (1980). The agency need only provide sufficient information to allow a court to review the agency's claimed exemption. In this case, we find that, with respect to the reference materials and "evidence and other supporting information compiled by the CSHO," the record does not provide a reviewing court with an adequate basis to decide whether the requested materials fall within Exemption 7(A).

With respect to the reference materials consulted by the CSHO during the course of the investigation, the district court concluded that these documents are exempt from disclosure under 7(A) because they "may reveal the investigator's theory of the case against Union Oil." OSHA's position on appeal as to these documents is that although "materials of this nature may not reflect the particulars of the investigation on their face, they nevertheless would reveal the nature and focus of the OSHA investigation should they be disclosed." Appellees' Brief at 32 (citation omitted).

We find that the category "reference materials" does not provide a court...