TV Tower, Inc. v. Marshall, Civ. A. No. 77-1551.

• Decision Date: 02 February 1978
• Docket Number: Civ. A. No. 77-1551.
• Citation: 444 F. Supp. 1233
• Parties: T. V. TOWER, INC., Plaintiff, v. F. Ray MARSHALL et al., Defendants.
• Court: U.S. District Court — District of Columbia

444 F. Supp. 1233

T. V. TOWER, INC., Plaintiff, v. F. Ray MARSHALL et al., Defendants.

Civ. A. No. 77-1551.

United States District Court, District of Columbia.

February 2, 1978.

Lawrence C. Melton, Washington, D.C., for plaintiff.

Earl J. Silbert, U.S. Atty., Robert N. Ford, Asst. U.S. Atty., Richard A. Olderman, Washington, D.C., for defendants.

MEMORANDUM OPINION

CHARLES R. RICHEY, District Judge.

This case is before the Court on cross-motions for summary judgment. The central issue is whether names of certain individuals who gave statements to investigators from the Occupational Safety and Health Administration may properly be withheld pursuant to exemption 7(D) of the Freedom of Information Act, 5 U.S.C. § 552(b)(7)(D). Upon consideration of the memoranda filed, the affidavits submitted, the oral hearing on the matter, and for the reasons hereinafter stated, the Court finds that there are no material facts in dispute¹ and that the defendants are entitled to a judgment as a matter of law.

I. FACTUAL BACKGROUND

Plaintiff, T. V. Tower, Inc., was the owner of a 1,484 foot guyed television broadcasting tower located near Lake Pickett, Orange County, State of Florida. In the course of its business, plaintiff leased a space on the tall tower to Florida Central East Coast Educational Television, Inc., ("Channel 24"). Channel 24 employed Jampro Antenna Company ("Jampro") to design and install an antenna and a coaxial line on the tall tower. On or about June 8, 1973, while Jampro and its agent, Tower Maintenance of Florida, Inc., ("Tower Maintenance"), were installing Channel 24's coaxial line on the tall tower, the tall tower collapsed. As a result of the accident, two employees of Tower Maintenance were killed, and the plaintiff suffered extensive damage to its property and business.

Following the collapse of the plaintiff's tall tower, plaintiff began to investigate the causes of the accident. During that investigation, plaintiff was approached by representatives of the Occupational Safety and Health Administration (OSHA) for information about the tower's collapse. In the course of its investigation, OSHA interviewed several witnesses, including employees of the companies which were employed to install the Channel 24 antenna and coaxial line.

Thereafter, plaintiff instituted suit in the Circuit Court of the Ninth Judicial Circuit in and for Orange County, Florida, against, inter alia, Jampro, Tower Maintenance, and Channel 24, to recover the damages it sustained resulting from the collapse of the tall tower.

On August 13, 1973, OSHA filed two citations for alleged occupational safety and health violations against Jampro. OSHA then initiated proceedings before the Occupational Safety and Health Review Commission, OSHRC Docket No. 4456, but these were subsequently concluded by stipulation.

On March 2, 1977, plaintiff, by counsel, made a formal request under the terms of the Freedom of Information Act (FOIA) for seven categories of information obtained by OSHA in its investigation of the tall tower collapse. Although OSHA disclosed some portions of this information to plaintiff, thirteen witness statements were provided with substantial deletions. Plaintiff was later informed that certain portions of the witness statements were deleted in order to prevent "an unwarranted invasion of privacy and/or disclose the identity of a confidential source." On March 2, 1977, plaintiff made a formal request, pursuant to the terms of the FOIA for the entire text of such witness statements and the identity of the individuals who made them. This request was denied to the extent that such disclosure would reveal the identity of the interviewees. Plaintiff pursued its administrative remedies with the Department of Labor, apparently seeking only the identity of the person or persons who had made two particular statements to the OSHA investigator. In a subsequent letter, the plaintiff was informed that the requested information was exempt from disclosure, pursuant to exemption 7(D) of the FOIA.

In order to obtain the identities of the people who made the statements, plaintiff brought this action on September 9, 1977, to enjoin the defendants further from withholding the requested information.

II. DISCUSSION

The defendants argue that exemption 7(D) of the FOIA allows the defendants to withhold the identity of the interviewees² who made the two statements involved here to the OSHA investigators. The plaintiff opposes the application of this exemption in this case on the ground that an interviewee is not a "confidential source" within the meaning of the exemption.

Exemption 7(D) exempts from disclosure "investigatory records compiled for law enforcement purposes, but only to the extent that the production of such records would . . . disclose the identity of a confidential source . . ." 5 U.S.C. § 552(b)(7)(D). Both parties appear to agree that the two documents in issue are "investigatory records compiled for law enforcement purposes." The key issue, therefore, is whether an interviewee is a "confidential source."

The burden of proof is on the government agency asserting a privilege under the FOIA. 5 U.S.C. § 552(a)(4)(B). The Conference Report to the 1974 amendments to the FOIA, which altered exemption 7(D) to its present form, indicates that an agency may meet this burden of proof by proving either that the interviewee provided information "under an express assurance of confidentiality or in circumstances from which such an assurance could be reasonably inferred." Conf.Rep. No. 93-1380, 93rd Cong., 2d Sess. 13 (1974).

In this case, the Court finds that the defendants have not met their burden of showing that an "express assurance of confidentiality" was given.³ However, the Court finds that the "circumstances from which such an assurance could reasonably be inferred" exist in this case.

In Kaminer v. NLRB, 90 LRRM 2269 (S.D.Miss.1975), the court held that statements taken by an NLRB agent in the course of an investigation into an unfair labor practice were exempt under exemption 7(D) because they were given under circumstances from which an assurance of confidentiality could reasonably be inferred. After noting that the effectiveness of an agency would be seriously jeopardized if individuals could not confidentially bring facts to the agency's attention, the Court adopted a "common sense" approach⁴ to this exemption.

The Court finds that this is also a case in which "common sense" dictates that the Board is required to maintain the confidentiality of its informers. The Board's investigatory function depends for its existence upon information supplied by individuals who in many cases would suffer severe detriment if their identities were known. Thus, the Board must be permitted to maintain the confidentiality of its sources. Exemption 7(D) of the newly amended F.O.I. Act recognizes this necessity.

90 LRRM at 2272 (emphasis added). This is clearly consistent with the stated purpose of the term "confidential source," which was to protect "concerned citizens who give information to enforcement agencies and desire their identity to be kept confidential." 120 Cong.Rec. 9330 (1974).

Similarly, the circumstances in which OSHA interviews are conducted necessitate confidentiality because, otherwise, employees, fearing retaliation, would be hesitant to give information adverse to their employers' interests. See Mitsubishi Electric Corp. v. U.S. Department of Justice, 1 Trade Cases ¶ 61,356, at 71,263 (1977). OSHA's investigatory function is dependent "upon information supplied by individuals who in many cases would suffer severe detriment if their identities were known." Kaminer, supra. Congressional sensitivity to this problem is evidenced by a provision in the Occupational Safety and Health Act which attempts to provide employees with a remedy for overt retaliation. See 29 U.S.C. § 660(c). In fact, Senator Hart, who sponsored the 1974 FOIA amendments, had included in the Congressional Record a letter supporting these amendments⁵ which expressly stated:

Under exemption 7, information of vital interest to the public could be kept secret — e.g. inspection reports by inspectors under the Occupational Safety and Health Act concerning safety in factories and other work places; . . . The amendment will permit this kind of information to be made public with appropriate safeguards for individual rights and the confidentiality of informants and investigative procedures.

120 Cong.Rec. 16616 (1974) (emphasis added). Thus, Congress clearly intended to protect the identity of interviewees in OSHA investigations. Accordingly, the Court finds that this case presents circumstances from which an assurance of confidentiality can reasonably be inferred and, therefore, the identity of the interviewees are properly withheld under exemption 7(D) of the FOIA. See Robbins Tire & Rubber Co. v. NLRB, 563 F.2d 724, 733 (5th Cir. 1977) (employee-employer context may provide circumstances from which assurance of confidentiality can be inferred); Luzaich v. United States, 435 F.Supp. 31, 35 (D.Minn. 1977) (implied pledge of confidentiality inferred without agency's submission of affidavit because of circumstances); Amway Corp. v. FTC, 1 Trade Cases ¶ 60,798, at 68,443 (D.D.C.1976) (identities of distributors, who complained about certain aspects of their relationship with plaintiff, are exempt because it can be reasonably inferred that these sources expected to be accorded confidentiality).

In holding exemption 7(D) applicable here, the Court is well aware of the line of cases that hold that a person is not a "confidential source" if he might later be called to testify by the agency. See Poss v. NLRB, 565 F.2d 654 (10th Cir. 1977); Marathon LeTourneau Co., Marine Div. v. NLRB, 414 F.Supp. 1074, 1084 (S.D.Miss. 1976); Climax Molybdenum Co. v. NLRB, 407 F.Supp. 208, 209 (D.Colo.1975), aff'd on other grounds, 539 F.2d 63 (10th Cir. 1976). The same...