C.R.D. 72-19; Port of New York Court Nos. 70/16253-12995-69, etc. on man-made fabric.
Plaintiff has moved pursuant to rule 6.5(a)(ii) for an order to compel defendant to produce for inspection and copying work notes, written data, and computations pertaining to a laboratory report of the Bureau of Customs. Defendant opposes the motion, claiming that the materials are "privileged from disclosure" by the Freedom of Information Act, 5 U.S.C. (1970 ed.) § 552,
The motion has its genesis in a pending action which involves the classification by the government of certain imported fabrics under item 338.30 of the tariff schedules as other woven fabrics of man-made fibers which carries a duty assessment of 22 cents per pound plus 22½ percent ad valorem. Plaintiff argues that the fabric is in chief value of rabbit hair, and thus properly dutiable at only 15½ percent under item 339.10, as amended, as other woven fabrics of textile materials "not covered by the foregoing subparts of this part". Defendant, on the other hand, contends that the imported merchandise is in chief value of man-made fibers. Thus, one of the major issues in this action is component material of chief value.
Pursuant to this court's rule 6.4 plaintiff requested the government to produce for inspection, copying and/or testing: (a) the government's copy of New York Customs Laboratory Report #G17003 dealing with merchandise taken from entry 719203 of July 15, 1967; (b) all Customs Laboratory work notes, written work data, and computations pertaining to that report; and (c) a
Defendant acceded to requests (a) and (c) but refused to make available the materials requested in (b) on the single ground that they "constitute work sheets, advisory opinions, and intraoffice communications which are privileged from disclosure" by § 552(b)(5) of the Freedom of Information Act— which subparagraph provides that the requirements of that Act—that each agency shall make available to the public specified information—are not applicable to "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."
There is, however, a basic difficulty with the entire premise of defendant's argument. The difficulty is that the Freedom of Information Act was enacted to provide the public with the right to obtain information from administrative agencies and agencies in the executive branch of the government; it was not enacted to provide discovery procedures for obtaining information during litigation. Put otherwise, the fact that § 552(b) of the Information Act provides specified exemptions from the Act's public information requirements does not in and of itself create a judicial discovery privilege with respect to such exemptions. Thus, if the Information Act were intended to apply to judicial discovery proceedings there would be no need for the provisions of paragraph (a)(3) of the Act which gives any person who has been denied information after a request the right to file a complaint in the appropriate United States district court to compel the production of records. This same paragraph also places the burden on the government agency to sustain its action. Further, the very language of § 552(b)(5) denies any applicability to judicial discovery proceedings:
On its face this exemption does not apply to inter- or intra-agency memorandums or letters which would be available to a party during litigation. Clearly, the defendant cannot use an administrative exemption which specifically does not cover judicial discovery as a basis for claiming a judicial discovery privilege.
But even assuming arguendo that the Freedom of Information Act is applicable to discovery procedures during litigation, it still would not insulate the requested materials from disclosure. At the outset, it is to be noted that the primary purpose of the Information Act was to increase the citizen's access to government records. Bristol-Myers Company v. Federal Trade Commission, 138 U.S.App.D.C. 22, 424 F.2d 935 (1970); M. A. Schapiro & Co. v. Securities and Exchange Commission, 339 F.Supp. 467 (D.C.C.1972).
Prior to 1967, section 3 of the Administrative Procedure Act, known as the Public Information Section (5 U.S.C. § 1002), had "been used as an authority for withholding, rather than disclosing, information."
The Act reflects an intent to reach a workable balance between the right of the government to keep information in confidence to the extent necessary without permitting indiscriminate secrecy. Accordingly, it:
(1) Eliminates the "properly and directly concerned" test of who shall have access to public records by providing that—
(2) Exempts from public disclosure nine specific categories of information [subsection (b)], declaring that—
(3) Gives an aggrieved person whose request for information is denied the right to file an action in a United States district court with the matter to be determined de novo with the burden on the agency so that the court can consider the propriety of the withholding.
It is in this setting that we consider the government's reliance here upon the Congressional direction that the Freedom of Information Act—
Excluded from this exemption are interor intra-agency memoranda or letters which would ordinarily be available to a
In short, the criterion for the applicability of the fifth exemption is whether the records sought are inter- or intra-agency memoranda or letters which would not be available to any party in any litigation in which the agency having the records might be involved.
The scope of discovery under rule 6.1(b) of the Rules of the Customs Court and rule 26(b) of the Federal Rules of Civil Procedure, as amended, is quite broad. Both provide that unless otherwise limited by order of the court —
Thus, this court and the federal district courts permit the discovery of "any matter, not privileged, which is relevant to the subject matter involved in the pending action." A showing of "compelling need" is not required. Nor must good cause be shown for production of documents and things. See rule 6.4(a). See also F.R.C.P., rule 34.
Against this background, there can be no doubt that the requested laboratory work notes, data, and computations are relevant to the present action. Indeed, even the government does not dispute the relevancy of the laboratory work sheets (or, for that matter, of the report itself) which indicate the procedures followed by the chemist in performing the analysis, and whether they were correctly carried out.
Rather, defendant alleges that laboratory work sheets often contain the comments and corrections of the chemist performing the analysis, and that these
The fifth exemption, it is to be observed, was intended to reflect that part of the doctrine of executive privilege which was judicially developed to encourage for public policy reasons the free and uninhibited exchange and communications of opinions, ideas and points of view among government personnel. See e. g., Kaiser Aluminum & Chemical Corp. v. United States, 157 F.Supp. 939, 141 Ct.Cl. 38 (1958); V.E.B. Carl Zeiss, Jena v. Clark, 128 U.S.App. D.C. 10, 384 F.2d 979 (1967), cert. den. 389 U.S. 952, 88 S.Ct. 334, 19 L.Ed.2d 361 (1967.)
It is true that the work notes, data, and computations requested here constitute internal drafts prepared by agency personnel for their own use and thus are in the nature of intra-agency memoranda. However, in the absence of proof to the contrary by the government—which under the Information Act has the burden of sustaining its action—the requested materials, all bearing on a laboratory analysis of sample merchandise, must be considered as purely objective, factual and scientific in nature and not policy or decision-making recommendations.
While ordinarily a report claimed to contain privileged statements may be inspected in camera by the judge who may, if he finds such privileged material, order it deleted,
For the reasons stated, plaintiff's motion to compel production of all Customs Laboratory work notes, written work data, and computations pertaining to New York Customs Laboratory Report #G17003 is granted. It is therefore ordered that within 10 days after entry of this Order, defendant shall produce the above documents for inspection and copying by plaintiff, with such production to be at a place mutually agreeable to the parties.
See generally Davis, The Information Act: A Preliminary Analysis, 34 U. of Chic.L.Rev. 761 (1967).
applies the same fact versus policy distinction inherent in exemption (5). In any event, if there were a conflict the clear statutory directive must prevail over the agency regulation. Nichols v. United States, 74 U.S. (7 Wall.) 122, 129, 19 L.Ed. 125 (1868).