Pierce & Stevens Chemical Corp. v. U.S. Consumer Product Safety Commission

• Decision Date: 14 December 1978
• Docket Number: No. 404,D,404
• Citation: 585 F.2d 1382
• Parties: PIERCE & STEVENS CHEMICAL CORP., Plaintiff-Appellee, v. UNITED STATES CONSUMER PRODUCT SAFETY COMMISSION, Defendant-Appellant.ocket 78-6135.
• Court: U.S. Court of Appeals — Second Circuit

Page 1382

585 F.2d 1382

PIERCE & STEVENS CHEMICAL CORP., Plaintiff-Appellee, v. UNITED STATES CONSUMER PRODUCT SAFETY COMMISSION,

Defendant-Appellant.

No. 404, Docket 78-6135.

United States Court of Appeals,

Second Circuit.

Argued Nov. 3, 1978.

Decided Dec. 14, 1978.

William L. Rieth, Buffalo, N.Y. (Phillips, Lytle, Hitchcock, Blaine & Huber, Buffalo, N.Y., of counsel), for plaintiff-appellee.

Mark N. Mutterperl, Atty., Appellate Staff, Civ. Div., Dept. of Justice, Washington, D.C. (Barbara Allen Babcock, Asst. Atty. Gen., Washington, D.C., Richard J. Arcara, U. S. Atty., Buffalo, N.Y., Leonard Schaitman, Atty., Appellate Staff, Civ. Div., Dept. of Justice, Washington, D.C., of counsel), for defendant-appellant.

Victor H. Kramer, Charles E. Hill, Alan R. Schwartz, Washington, D.C., Consumer Federation of America, amicus curiae.

Before KAUFMAN, Chief Judge, and FEINBERG and TIMBERS, Circuit Judges.

FEINBERG, Circuit Judge:

In the past decade and a half the Congress of the United States has enacted many complex statutes, a good number of which present difficult questions of interpretation. ¹ This appeal involves a potential clash between two such laws: the Freedom of Information Act, 5 U.S.C. § 552 (FOIA), and the Consumer Product Safety Act, 15 U.S.C. §§ 2051-2081. The Consumer Product Safety Commission appeals from an order of the United States District Court for the Western District of New York, John T. Elfvin, J., which permanently restrained the Commission from disclosing to one Adele Larson three documents relating to plaintiff Pierce & Stevens Chemical Corp. The basis of the injunction was the Commission's failure to comply with various requirements of the Consumer Product Safety Act. For reasons set forth below, we hold that those provisions do not apply to Ms. Larson's request under the FOIA, and we reverse the judgment of the district court.

I

There is no dispute about the relevant facts. In early 1975, Adele Larson informed the Commission that she used a cleaning fluid manufactured by Pierce & Stevens and that a "spontaneous fire" had destroyed her house and injured her. Ms. Larson asked the Commission to supply her with a copy of the label for this product and inquired whether there was "any history of problems . . . with (its) use." After the Commission replied and sent copies of the labels, Ms. Larson asked, among other things, "(d)oes the labeling conform with U. S. safety regulations." The Commission replied that inspection of the Pierce & Stevens plant in Buffalo in November 1969 and October 1970 "revealed possible labeling deficiencies." But before sending copies of the two reports, the Commission advised Ms. Larson that it was required to give Pierce & Stevens a chance to review the documents for confidential commercial and trade secret information which should be withheld.

In April 1975, the Commission sent copies of the two reports, and a related two-page letter, to plaintiff Pierce & Stevens for its view on whether the documents contained any such protected information. The company replied that the documents should not be disclosed at all because the Commission had not complied with section 6(b)(1) of the Consumer Product Safety Act. That section, which is reproduced and discussed in greater detail below, requires the Commission to provide the manufacturer or labeler of a consumer product with notice and an opportunity to comment prior to disclosure of information pertaining to that product, and to take reasonable steps to insure the accuracy of the information. Pierce & Stevens also claimed that the documents contained confidential and trade secret information and were protected from disclosure by the intra-agency exemption of the FOIA. ² The Commission accepted many of the company's assertions regarding trade secrets and confidential information, ³ but otherwise rejected its claims. ⁴ The Commission offered, however, to include in its response to Ms. Larson any statement from the company about "alleged inaccuracies," if received within 10 days.

In October 1975, Pierce & Stevens brought suit in the United States District Court for the Western District of New York to enjoin the Commission from releasing the documents. In October 1977, Judge Elfvin granted a preliminary injunction on the ground that the Commission had failed to comply with the provisions of the Consumer Product Safety Act, 439 F.Supp. 247. After proceedings in this court, ⁵ the judge granted a permanent injunction in July 1978. This appeal followed.

The Freedom of Information Act, 5 U.S.C. § 552, was enacted in 1966, and became effective one year later. ⁶ The statute, which was the culmination of years of congressional effort, amended the public information provisions of the Administrative Procedure Act of 1946 (APA). ⁷ That section of the APA had proved to be less than satisfactory in achieving disclosure of information to the public. The purpose of the FOIA was to correct the deficiencies of the APA in this area and to improve public access to information held by government agencies. See generally S.Rep. No. 813, 89th Cong., 1st Sess. (1965); H.R.Rep. No. 1497, 89th Cong., 2nd Sess. (1966), Reprinted in, U.S.Code Cong. & Admin.News 1966, p. 2418. Thus, the FOIA did away with direct interest as a condition of obtaining information, ⁸ narrowed the standards for allowing an agency to withhold information and provided for judicial review of such denial. ⁹ See generally Note, The Freedom of Information Act: A Seven-Year Assessment, 74 Colum.L.Rev. 895, 896-98 (1974). The statute treats various types of agency information in different ways. Some must be published in the Federal Register; some must be made available for public inspection and copying; and other reasonably described records are obtainable on request to an agency. And nine categories of information are specifically exempted from disclosure, ¹⁰ although the list of exemptions is immediately followed by the statutory declaration that the section "does not authorize withholding of information or limit the availability of records to the public, except as specifically stated . . . ." ¹¹ See generally K. Davis, Supra note 10, at § 3A.5; Project, Supra note 10, 73 Mich.L.Rev. at 1158-59. There is no doubt that the "basic purpose" of the FOIA is "a general philosophy of full agency disclosure." See Dept. of Air Force v. Rose, 425 U.S. 352, 360-61, 96 S.Ct. 1592, 1599, 48 L.Ed.2d 11 (1976); EPA v. Mink, 410 U.S. 73, 80 & n. 6, 93 S.Ct. 827, 35 L.Ed.2d 119 (1973). But the burden of obtaining the information is on an individual who seeks it; his request must be reasonably described, and he may have to pay the costs involved in obtaining copies. ¹² See Gellhorn, Adverse Publicity by Administrative Agencies, 86 Harv.L.Rev. 1380, 1421-23 (1973).

The Consumer Product Safety Act was also the product of years of legislative labor. The National Commission on Product Safety, created in 1967, ¹³ recommended a proposed bill in its final report in 1970. ¹⁴ Debate in Congress thereafter focused mainly on whether to create a new agency or to give increased authority to the Food and Drug Administration and on whether the new statute should apply to food, drugs and cosmetics. The law was enacted in 1972 and provided for a comprehensive federal scheme of regulating consumer product safety. ¹⁵ The statute created a new, independent regulatory agency, the Consumer Product Safety Commission, which was given authority to establish safety standards for consumer products and strong enforcement powers. ¹⁶ Most significantly for this appeal, the Commission is directed to obtain information relating to product-related injuries and to communicate that information to the public. ¹⁷ Both the Consumer Product Safety Act, then, and the FOIA evidence a strong legislative purpose to transmit agency information to the public, but the latter requires individual initiative to obtain it.

With this background in mind, we must consider whether section 6(b)(1) of the Consumer Product Safety Act applies to a request for information under the FOIA, ¹⁸ a question on which there is little authority on point. ¹⁹ The entire section 6, of which subsection (b)(1) is a part, deals with public disclosure of information and provides as follows:

§ 6. Public disclosure of information

(a)(1) Nothing contained in this chapter shall be deemed to require the release of any information described by subsection (b) of section 552 of Title 5 or which is otherwise protected by law from disclosure to the public.

(2) All information reported to or otherwise obtained by the Commission or its representative under this chapter which information contains or relates to a trade secret or other matter referred to in section 1905 of Title 18 shall be considered confidential and shall not be disclosed, except that such information may be disclosed to other officers or employees concerned with carrying out this chapter or when relevant in any proceeding under this chapter. Nothing in this chapter shall authorize the withholding of information by the Commission or any officer or employee under its control from the duly authorized committees of the Congress.

(b)(1) Except as provided by paragraph (2) of this subsection, not less than 30 days prior to its public disclosure of any information obtained under this chapter, or to be disclosed to the public in connection therewith (unless the Commission finds out that the public health and safety requires a lesser period of notice), the Commission shall, to the extent practicable, notify, and provide a summary of the information to, each manufacturer or private labeler of any consumer product to which such information pertains, if the manner in which such consumer product is to be designated or described in such information will permit the public to ascertain readily the identity of such manufacturer or private labeler, and shall provide such manufacturer or private labeler with a...