Cuccaro v. Secretary of Labor
| Decision Date | 09 July 1985 |
| Docket Number | No. 85-3015,85-3015 |
| Citation | 770 F.2d 355 |
| Parties | 12 O.S.H. Cas.(BNA) 1441, 1984-1985 O.S.H.D. ( 27,361 Pasquale G. CUCCARO a/k/a Charles P. Cuccaro, Appellant, v. SECRETARY OF LABOR of the United States of America. . Submitted Under Third Circuit Rule 12(6) |
| Court | U.S. Court of Appeals — Third Circuit |
Pasquale G. Cuccaro, appellant pro se.
Francis X. Lilly, Solicitor of Labor, Seth D. Zinman, Associate Solicitor of Labor, Sofia P. Peters and Richard T. Galgay, U.S. Dept. of Labor, Washington, D.C., for appellee.
Before SEITZ, HUNTER and MARIS, Circuit Judges.
This is an appeal, after final judgment, from an order of the district court granting summary judgment and thereby denying production of documents requested of the Occupational Safety and Health Administration ("OSHA") under the Freedom of Information Act ("FOIA"), 5 U.S.C. Sec. 552 (1982), and The Privacy Act of 1974 ("Privacy Act"), 5 U.S.C. Sec. 552a (1982). We have appellate jurisdiction under 28 U.S.C. Sec. 1291 (1982).
Pasquale G. Cuccaro (plaintiff), a former employee of the United States Steel Corporation, was injured on the job, allegedly due to a faulty piece of equipment. He filed two complaints with OSHA in May of 1978 and June of 1980, alleging unsafe working conditions and inadequate medical treatment procedures. In February, 1981, plaintiff invoking FOIA and the Privacy Act, requested certain materials in OSHA's files. OSHA provided plaintiff with the bulk of the requested filed pursuant to FOIA, but withheld portions of the disclosed documents under certain exemptions of that Act; OSHA denied plaintiff's request under the Privacy Act.
Plaintiff then filed this action in the district court seeking disclosure of those portions of OSHA's files which were withheld. After a de novo review which included an in camera inspection of the withheld documents, the district court found that the documents in question were properly withheld from disclosure both under the Privacy Act and FOIA's exemptions and ultimately dismissed plaintiff's claims. Cuccaro v. Secretary of Labor, 562 F.Supp. 724 (W.D.Pa.1983). This appeal followed.
Our scope of review in FOIA cases, where access to documents has been denied, is two-fold: we determine whether the district court had an adequate factual basis for its decision and whether its conclusion was clearly erroneous. Lame v. United States Dept. of Justice, 767 F.2d 66, 70 (3d Cir.1985) (Lame II ). Our scope of review of the district court's finding with respect to disclosure under the Privacy Act on summary judgment is the same as that utilized by the district court: we determine whether there exists any disputed issue of material fact, assume resolution of any disputed fact in favor of the non-movant, and determine whether the movant is entitled to judgment as a matter of law. First Jersey National Bank v. Dome Petroleum Limited, 723 F.2d 335, 338 (3d Cir.1983).
Pursuant to Exemption 5 of the FOIA 1, OSHA withheld portions of four documents requested by plaintiff: a staff opinion as to whether the general duty clause was applicable to this case; a staff opinion on complainant's physical condition; and evaluations by two compliance officers of the safety of the employer's workplace, and of its safety and health programs and their recommendations on the necessity of subsequent inspections. After inspecting the withheld materials in camera, the district court agreed with OSHA. It determined that the documents withheld are "predecisional, deliberative and subjective."
It is well-settled that Exemption 5 affords an agency an "executive privilege" with respect to intra-agency documents which reflect deliberative and decision-making processes and advisory opinions and recommendations of government. NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 148, 95 S.Ct. 1504, 1515, 44 L.Ed.2d 29 (1975); Conoco Inc. v. United States Department of Justice, 687 F.2d 724, 727 (3d Cir.1982).
Plaintiff asserts that, while the exemption protects documents which are predecisional and deliberative, it does not apply "to decisions reached and policies made," citing NLRB v. Sears, Roebuck & Co., supra. Plaintiff's position is not entirely clear. If plaintiff is asserting that, after OSHA rendered its decision, the documents lost their exempt status, appellant is simply mistaken: Congress did not intend such a result and case law has consistently held to the contrary.
In NLRB v. Sears, Roebuck & Co., the Supreme Court discussed the contours of the executive privilege as delineated by both case law and Congressional reports:
The cases uniformly rest the privilege on the policy of protecting the "decision making processes of government agencies," Tennessean Newspapers, Inc. v. FHA, 464 F.2d 657, 660 (CA6 1972); Carl Zeiss Stiftung v. V.E.B. Carl Zeiss, Jena, 40 F.R.D. 318 (DC 1966); see also EPA v. Mink, supra, [410 U.S. 73] at 86-87 [93 S.Ct. 827, 835-36, 35 L.Ed.2d 119 (1973) ]; International Paper Co. v. FPC, 438 F.2d 1349, 1358-1359 (CA2 1971); Kaiser Aluminum & Chemical Corp. v. United States, supra, [141 Cl.Ct. 38] at 49, 157 F.Supp., at , at 946 [1958]; and focus on documents "reflecting advisory opinions, recommendations and deliberations comprising part of a process by which governmental decisions and policies are formulated." Carl Zeiss Stiftung v. V.E.B. Carl Zeiss, Jena, supra, at 324. The point, plainly made in the Senate Report, is that the "frank discussion of legal or policy matters" in writing might be inhibited if the discussion were made public; and that the "decisions" and "policies formulated" would be the poorer as a result. S.Rep. No. 813, p. 9. See also H.R.Rep. No. 1497, p. 10; EPA v. Mink, supra, [410 U.S.] at 87 .
421 U.S. at 150-151, 95 S.Ct. at 1516 (footnote and citations omitted).
In discussing the purpose of the executive privilege, the Court emphasized the importance of the non-disclosure of predecisional, deliberative material:
Manifestly, the ultimate purpose of this long-recognized privilege is to prevent injury to the quality of agency decisions. The quality of a particular agency decision will clearly be affected by the communications received by the decisionmaker on the subject of the decision prior to the time the decision is made. However, it is difficult to see how the quality of a decision will be affected by communications with respect to the decision occurring after the decision is finally reached; and therefore equally difficult to see how the quality of the decision will be affected by forced disclosure of such communications, as long as prior communications and the ingredients of the decisionmaking process are not disclosed. Accordingly, the lower courts have uniformly drawn a distinction between predecisional communications, which are privileged, ... and communications made after the decision and designed to explain it, which are not.
Id. at 151-152, 95 S.Ct. at 1516-17 (footnotes and citations omitted) (emphasis supplied).
After it discussed the contours and purpose of the executive privilege, the Court noted one set of circumstances which will cause a document to lose Exemption 5's protection:
If an agency chooses expressly to adopt or incorporate by reference an intra-agency memorandum previously covered by Exemption 5 in what would otherwise be a final opinion, that memorandum may be withheld only on the ground that it falls within the coverage of some exemption other than Exemption 5.
Id. at 161, 95 S.Ct. at 1521. See Afshar v. Dept. of State, 702 F.2d 1125, 1139 (D.C.Cir.1983). Thus, NLRB v. Sears, Roebuck & Co., clearly holds that materials properly withheld from disclosure pursuant to Exemption 5 do not lose their exempt status unless the agency expressly incorporates the material in its final decision.
In support of his contention that the documents lost Exemption 5's protection, plaintiff quotes the following from "A Citizen's Guide On How To Use the Freedom of Information Act and the Privacy Act in Requesting Government Documents" 2:
However, the Supreme Court has drawn a distinction between agency communications prior to the rendering of a decision and communications concerning a decision once it has been made. Memorandums and letters which reflect predecisional attitudes regarding policy alternatives are not required to be disclosed. But communications that relate to decisions already made must be released. In the Court's view, once a policy is adopted, the public has a right to know the basis for that decision.
Plaintiff apparently thinks the quoted material reflects his position in this case. However, we think the quoted language supports the view that these documents, created prior to any final decision, retain their exempt status after an agency renders a decision. Plaintiff does not contend that the documents lost their exempt status because they fell within the exception delineated in NLRB v. Sears, Roebuck & Co. In any event, upon review of the record, it is clear that none of the documents were incorporated in a final OSHA decision; therefore, this limited exception is not applicable here.
We conclude that, as to these documents, which are protected by the executive privilege created by Exemption 5, the exemption was not lost after the relevant agency decision was made.
A second interpretation of plaintiff's Exemption 5 claim is possible. Plaintiff seems to be asserting that the district court erred in finding that the documents were exempt because they are not predecisional, deliberative and subjective. We find this contention to be without merit.
As we noted earlier, in reviewing the district court's de novo determination that documents are exempt under FOIA, this court must ascertain whether the district court had an adequate factual basis for its decision and whether its findings were clearly erroneous. Lame II, supra. We have carefully inspected the...
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