FRIENDLY, Circuit Judge:
This appeal and cross-appeal from orders of Judge Sweet in the District Court for the Southern District of New York require us to pass upon the application of the Freedom of Information Act (FOIA), 5 U.S.C. § 552, and particularly exemption (b)(5), in a case where plaintiff's avowed objective in seeking agency records is to utilize them in prosecuting a petition in another circuit to review a rule promulgated by the agency. Plaintiff, Lead Industries Association, Inc. (LIA or the Association), objects to the court's refusal to direct the Occupational Safety and Health Administration (OSHA) to produce (except for certain segments) two draft reports prepared after the rulemaking hearing by outside consultants who had testified at the hearing;
An understanding of the issues on appeal requires some background:
It has long been known that absorption of lead (Pb) by workers exposed to it involves health hazards. The then Secretary of Labor published in the Federal Register of October 3, 1975, 40 F.R. 45934, pursuant to §§ 6(b) and 8(c) of the Occupational Safety and Health Act of 1970, 29 U.S.C. §§ 655(b) and 657(c), notice of a proposal to promulgate a new occupational safety and health standard for exposure to lead.
It described as one of the major issues:
A hearing began in Washington on March 15, 1977 and lasted seven weeks; shorter hearings were held in April in St. Louis and in May in San Francisco. Further hearings were held for several days in November and one in December. Final certification of the hearing record of some 40,000 pages was completed on August 8, 1978, see 43 F.R. 52953 (1978).
On November 14, 1978, the Assistant Secretary of Labor for Occupational Safety and Health published the final standard, to be effective February 1, 1979, 43 F.R. 52952, 53007-14. This limited occupational exposure to lead to 50 ug/m
The new standards were preceded by a preamble of 55 pages which sought to explain inter alia why, on the basis of the record, the more stringent standard was required and was feasible. A week later the Department of Labor published, 43 F.R. 54354, some 155 pages of attachments to the preamble dealing with both medical and economic aspects of the standard, allegedly on the basis of record materials. The preamble and attachments were published pursuant to a statutory requirement that the Secretary provide a statement of reasons whenever promulgating a new standard or substantially changing an existing consensus standard. 29 U.S.C. § 655(b)(8), (e).
Literally in a matter of seconds after the filing of the standard, petitions for review were filed in the Fifth Circuit by LIA and in the Third Circuit by the United Steelworkers of America. The actions were eventually transferred to the Court of Appeals for the District of Columbia,
On November 17, 1978, counsel for LIA submitted to Grover C. Wrenn, Director of
Candidly stating that:
the letter asked that the requested documents be furnished "as promptly as possible to avoid the necessity for formal court action."
Mr. Wrenn responded on December 22, 1978. OSHA released five items (or categories of items) unnecessary to describe. OSHA's letter listed nine items (or categories of items) which it described as containing "opinions, recommendations and evaluations intended to influence OSHA's decisions, regarding the development of the final lead standard" and thus exempt under 5 U.S.C. § 552(b)(5).
LIA promptly took an administrative appeal to the Solicitor of Labor, 29 C.F.R. § 70.50. On January 26, 1979, when a determination of the appeal was due under FOIA, 5 U.S.C. § 552(a)(6)(A)(ii), LIA was notified that the processing of its appeal was not yet completed due to the voluminous record. Further documents or portions of documents were eventually released pursuant to this administrative appeal on April 18, 1979.
Simultaneously with its FOIA request to OSHA, LIA filed a request with CWPS for documents described in the margin.
Without awaiting decision of its OSHA appeal or attempting an administrative appeal to the Director of CWPS, 6 C.F.R. § 702.12, LIA brought this action against both agencies in the District Court for the Southern District of New York on January 31, 1979. Three days later it moved for an order requiring the defendants to prepare what has come to be known as a "Vaughn v. Rosen" index, see Vaughn v. Rosen, 157 U.S.App.D.C. 340, 346-48, 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), of the withheld documents. CWPS moved for dismissal of LIA's complaint as to it for failure to exhaust administrative remedies. On March 16, 1979, Judge Sweet filed an opinion directing OSHA to prepare the index but dismissing the complaint against CWPS and its officers for failure to exhaust administrative remedies.
Activity then shifted back to the Court of Appeals for the District of Columbia Circuit. American Smelting & Refining Company (ASARCO), an important producer of lead and a petitioner for review of the new standards, moved on March 28, 1979, to supplement the record and for discovery. Supplementation was sought with respect to certain exhibits attached to an affidavit of counsel for LIA in this action which described its progress. The attached exhibits included a transcript of a controversial speech delivered by Assistant Secretary of Labor for Occupational Safety and Health and Director of OSHA Eula Bingham to a meeting of the United Steelworkers Union (exhibit 1) and a transcript of the press conference at which the final standard was announced (exhibit 91); certain documents filed in connection with this FOIA litigation, including the LIA request of November 17 (exhibit 2); the Wrenn response of December 22 (exhibit 3), and Judge Sweet's Opinion of March 16 (exhibit 3a);
ASARCO suggested that if the court were not disposed to order discovery, ASARCO should be permitted to commence in the District Court for the District of Columbia "an action in the nature of a bill of discovery in aid of" the proceeding in the Court of Appeals. By order dated May 8, 1979, the Court of Appeals "lodged" most of the exhibits attached to counsel's affidavit pending determination whether they were to be included in the record, an issue the parties were directed to address in their briefs. Discovery was denied, without a statement of the reason.
While this had been going on in the District of Columbia Circuit, Judge Sweet, in an opinion dated April 27, 1979, denied the motions of both parties for summary judgment, without prejudice to renewal, on the basis that the Court of Appeals for the District of Columbia was "best qualified to determine whether or not the plaintiff here is entitled to the documents." When that court denied discovery, Judge Sweet, after first ordering on June 4 that the documents be submitted for in camera review, rendered a memorandum opinion and order on June 14. He stated the governing principles to be that "documents found to be in whole or in part internal communications consisting of advice, recommendations, opinions and other material reflecting deliberative or policy making processes and not purely factual or investigatory reports fall within the (b)(5) exemption" but that "[f]actual material or facts contained in a deliberative or policy memo which are severable from it . . . or which have been publicly cited by OSHA as a basis for its action" were to be disclosed. Thirteen documents not involved in this appeal were ruled to be exempt in their entirety. Other documents were likewise held to be exempt in overwhelming part. However, the court ordered disclosure of roughly 390 excepts "to the extent the information has not been disclosed." The court offered the Government the option of turning over the raw factual data supporting the segments rather than the segments themselves.
The Government then renewed its motion for summary judgment on the basis that LIA had not controverted the Government's assertion in its statements under Rule 9(g) of the District Court that the factual material in the designated segments was in fact in the public record — a claim supported by further affidavits.
Defendants were ordered to comply within five days.
The Government applied to Judge Sand, who was acting as the Emergency Judge, for a stay to enable it to make the demonstration to which Judge Sweet had referred. It introduced an affidavit of the Associate Solicitor for Occupational Safety and Health in the Department of Labor, describing how the government was preparing to make this demonstration with respect to the 390 segments by cross-indexing the facts contained in them against the 40,000 page rulemaking record. He affirmed that this monumental task could not be performed within 5 days, as seems obvious, but estimated it could be done within 30. Having been presented with an affidavit from counsel for LIA that its "need for these documents is critical" since argument in the D.C. Circuit on the petition for review was scheduled for the fall, and believing that Judge Sweet's allowing only a five-day period reflected acceptance of this position, Judge Sand denied the stay. Although the
We begin our discussion by rejecting the Government's suggestion that LIA is precluded from prevailing in this action by the refusal of the Court of Appeals of the District of Columbia Circuit to order discovery in the review proceeding there pending. It is true that ASARCO's use of an affidavit by LIA's counsel detailing the proceedings in the district court and other circumstances might suffice to show privity between LIA and ASARCO or that, apart from privity, estoppel might be appropriate under the principle of Blonder-Tongue Laboratories Inc. v. University of Illinois Foundation, 402 U.S. 313, 91 S.Ct. 1434, 28 L.Ed.2d 788 (1971), if all its conditions were satisfied. However, it is not completely clear that the issues on ASARCO's motion in the District of Columbia Circuit and in this action are the same. ASARCO's request was based on an asserted right of a petitioner for review of an OSHA standard under 29 U.S.C. § 655(f) to have available not only the rulemaking record but extrarecord material on which the agency may have relied, apparently as a matter of administrative common law; LIA's case is based on FOIA. It is true that the statutory test under § 552(b)(5) is whether the materials would be available "to a party other than an agency in litigation with the agency." It is not at all clear, however, that the Court of Appeals for the District of Columbia approached ASARCO's motion as a routine discovery matter, which courts have held to be the import of the quoted language. See H.R.Rep. No. 1497, 89th Cong., 2d Sess. (1966), U.S.Code Cong. & Admin.News 1966, p. 2418, FOIA Source Book, 93d Cong., 2d Sess. 31 (1974); NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 149, 95 S.Ct. 1504, 44 L.Ed.2d 29 (1975); Sterling Drug Inc. v. FTC, 450 F.2d 698, 704-05, 146 U.S.App.D.C. 237, 243-44, (D.C.Cir. 1971). One of the issues on ASARCO's motion was whether an appellate court could or should order the discovery sought. ASARCO argued that such power existed either under F.R.A.P. 16(b)
However, we do not wish our overruling of the Government's argument as to preclusion to be considered as approving LIA's decision to bring this action in the District Court for the Southern District of New York rather than in the courts of the District of Columbia.
It is necessary in assessing a FOIA claim to understand "the function of the documents in issue in the context of the administrative process which generated them." NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 138, 95 S.Ct. 1504, 1510, 44 L.Ed.2d 2029 (1975). Accord, Renegotiation Board v. Grumman Aircraft Engineering Corp., 421 U.S. 168, 170, 95 S.Ct. 1491, 44 L.Ed.2d 57 (1975). Whether a particular document is exempt under (b)(5) depends not only on the intrinsic character of the document itself, but also on the role it played in the administrative process. See Montrose Chemical Corp. v. Train, 160 U.S.App.D.C. 270, 275, 491 F.2d 63, 68 (D.C.Cir. 1974); Mead Data Central, Inc. v. United States Department of Air Force, 184 U.S.App.D.C. 350, 364-65, 566 F.2d 242, 256-57 (D.C.Cir. 1977). The documents at issue here were developed in order to assist OSHA in discharging the statutory requirements of 29 U.S.C. § 655. In promulgating standards under that section, the Secretary of Labor's conclusions must be supported by "substantial evidence in the record considered as a whole." 29 U.S.C. § 655(f). Furthermore, the Secretary must publish a statement of reasons in the Federal Register whenever he promulgates a standard or changes an existing national consensus standard. 29 U.S.C. § 655(b)(8), (e). As noted, the hearings on the proposed lead standard resulted in a rule-making record of over 40,000 pages, dealing with complex medical and economic matters. The decisionmaker could not possibly read every page and master every detail of the record, nor was she required to do so. United States v. Morgan, 313 U.S. 409, 421-22, 61 S.Ct. 999, 85 L.Ed. 1429 (1941) (Morgan IV); National Nutritional Foods Ass'n v. FDA, 491 F.2d 1141, 1144-46 (2 Cir.), cert. denied, 419 U.S. 874, 95 S.Ct. 135, 42 L.Ed.2d 113 (1974). She sought expert assistance from both within and without OSHA in interpreting the long, controversial and technical record. The documents at issue embody that assistance, not only as to what standard and subsidiary procedures to adopt, but also as to what reasons to rely on in the required statement in the Federal Register.
LIA's appeal is limited to the district court's refusal to order disclosure (save for various segments) of two post-hearing draft reports by outside consultants who submitted evidence at the rule-making hearings, designated respectively as the DBA and CPA reports. See note 1 supra. The DBA report, a document of 117 pages, dated January 26, 1978, prepared by David J. Burton who had testified as to the feasibility of a 100 ug/m
The public portion of the record contains part of the instructions to DBA; we set these forth in the margin.
By its cross-appeal, the Government seeks to protect from disclosure all of the segments ordered disclosed (save some thirty-nine segments, disclosure of which it is not appealing since they clearly are already available to the public). Judge Sweet ordered disclosure of segments not only from the DBA and CPA reports just discussed, but also from a revision of part of the DBA report and four additional CPA reports. The CPA reports considered general feasibility questions and the benefits and costs of the medical removal protection program which OSHA adopted as part of the standard. See 43 F.R. 52972-77 (1978). This preventive health mechanism was one of the greatest points of controversy during the rule-making proceeding, so it is no surprise that expert assistance in analyzing the record was sought. Segments were also ordered disclosed from seven other documents produced by outside consultants,
Three of the seven CWPS documents from which segments were ordered disclosed were analyses of the standard prepared by CWPS staff for the use of the Council Director, his staff or other agencies within the Executive Branch in evaluating the proposed standard. One of the CWPS documents was an OSHA summary of its proposed standard prepared for the use of CWPS, and the remaining three were CWPS documents evaluating the EPA ambient air quality standard for lead, which the Government claims were not within the scope of LIA's original FOIA request.
The Supreme Court has dealt with exemption (b)(5) in four cases: EPA v. Mink, 410 U.S. 73, 85-94, 93 S.Ct. 827, 35 L.Ed.2d 119 (1973); NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 95 S.Ct. 1504, 44 L.Ed.2d 29 (1975); Renegotiation Board v. Grumman Aircraft Engineering Corp., 421 U.S. 168, 95 S.Ct. 1491, 44 L.Ed.2d 57 (1975); and Federal Open Market Committee v. Merrill, ___ U.S. ___, 99 S.Ct. 2800, 61 L.Ed.2d 587 (1979). The most important for present purposes is Mink both because it set the tone for the others and because it is the closest — although not really close — to ours on the facts. After stating that the exemption protects inter-agency communications only insofar as they "would not be available by law to a party . . . in litigation with the agency", the Court went on to say, in somewhat of a masterpiece of understatement, that "[d]rawing such a line between what may be withheld and what must be disclosed is not without difficulties" since "the rules governing discovery in such litigation have remained uncertain from the very beginnings of the Republic." 410 U.S. at 86, 93 S.Ct. at 835.
In recognition of these dubieties, Justice White sought aid in the committee reports where he discerned a central concern behind the language of exemption (b)(5) that government agencies not be compelled to "operate in a fishbowl." S.Rep. No. 813, 89th Cong., 1st Sess., Source Book 44 (1965); see also H.R.Rep. No. 1497, 89th Cong., 2d Sess., Source Book 31 (1966). Application of the exemption thus required different treatment "for materials reflecting deliberative or policy-making processes on the one hand, and purely factual, investigative matters on the other." 410 U.S. at 89, 93 S.Ct. at 837.
Reviewing the cases available at the time of publication,
We note preliminarily that in our view, nothing turns on the point that the DBA and CPA reports were prepared by outside consultants who had testified on behalf of the agency rather than agency staff. On this we have nothing that can usefully be added to Chief Judge Bazelon's statement in Soucie v. David, 448 F.2d 1067, 1078 n. 44, 145 U.S.App.D.C. 144, 155 (D.C.Cir. 1971), which was adopted and followed in Wu v. National Endowment for Humanities, 460 F.2d 1030, 1032 (5 Cir. 1972), cert. denied, 410 U.S. 926, 93 S.Ct. 1352, 35 L.Ed.2d 586 (1973).
Accepting Mink as we must, and Professor Davis' statement as we do, we do not find them of great assistance in dealing with the problem presented when a party to agency rule-making seeks disclosure of documents submitted to the agency by its staff or outside consultants to assist it in rendering an informed decision upon the typically Gargantuan rule-making record developed here. In such a case, disclosure of factual portions of the report may reveal the deliberative process of selection. See Montrose Chemical Corp. v. Train, 160 U.S.App.D.C. 270, 275, 491 F.2d 63, 68 (D.C.Cir. 1974). This is not to say that all summaries are ipso facto exempt from disclosure. Disclosure of purely objective summaries of the rule-making record may not threaten the deliberative process, although disclosure might be withheld on the different ground that the material was already available. See Bodner v. FTC, 1975-1 Trade Cases ¶ 60, 171 at 65,555 (D.D.C.1975). Here, however, the DBA and CPA reports were more than mere summaries. In assisting OSHA, the consultants were asked to draw inferences and weigh the evidence. See note 18 supra. Their function was not merely summary but analysis as well, and as such clearly implicated in the deliberative process by which the final standard was adopted and the reasoning behind it promulgated.
Against this LIA argues that the documents were not based solely on the public record, and therefore cannot be disposed of simply on the basis that they assisted the decisionmaker in analyzing that record. The detailed affidavits submitted by the Government in opposition to LIA's motion and in support of its own motion for summary judgment, make, on their face, a convincing case that the DBA and CPA reports were prepared from record materials for discussion within the OSHA staff and ultimate consideration by the decisionmaker. This case was strongly supported by the complete and informative indices furnished in response to the district court's order of March 16, 1979, and the table of contents of the DBA report and other excerpts from both reports that were voluntarily furnished. To counteract this LIA argues that OSHA sent DBA some materials that were not in the record and that the CPA report contained a rebuttal of criticisms of CPA's on-the-record testimony. However, in transmitting the off-the-record material to DBA, OSHA expressly instructed that "References supplied that are not in the record are for your own information only and should not be used as documentation for any conclusions." Portions of the DBA report that have been released to LIA affirm that only record materials were used and that where sufficient information in the record was not available to draw conclusions, no analysis was presented. We see no
For the foregoing reasons we find that the District Court was correct in characterizing the bulk of the DBA and CPA reports as exempt. We turn now to the various segments ordered disclosed in these two reports and the other documents.
The district court ordered disclosure of seven segments of the DBA draft report, some 102 segments of the CPA report (mainly tables and graphs), 8 segments from a revised version of the DBA report, 52 segments from four additional CPA summaries, 37 segments from seven studies and memoranda prepared by other consultants, 83 segments from five reports prepared by persons believed to have been full-time agency staff persons, and excerpts from seven CWPS documents. The Government's affidavits claimed that all these documents were part of the deliberative process, the indices confirmed this, the district court did not conclude to the contrary, and despite the large number of segments ordered to be produced, some only a few lines, the district court held the great bulk of the documents to be entitled to the exemption.
The district court offered only two clues for its selection of segments in addition to the general statement quoted in Part II supra. One was that whereas inferences drawn from the public record should not be disclosed "since they reflected on the question of which facts the decision makers considered important", "[i]nferences derived from facts which became part of the final record, (i. e., inferences that became findings of fact by OSHA) are to be disclosed." With all respect we cannot understand this; the interference with the free flow of discussion between staff (or outside consultants) and the decisionmaker depends on protection against any disclosure, not on whether the decisionmaker accepts, rejects or ignores the advice. If the judge was relying on the discussion in NLRB v. Sears, Roebuck & Co., supra, 421 U.S. at 152-53, 95 S.Ct. 1504, we believe he misconstrued it; what the Court ordered disclosed were the Appeals and Advice Memoranda of the General Counsel which concluded that no complaint should be filed and thus constituted final action by the NLRB — not memoranda from subordinates recommending that course.
The court's discussion of the other clue begins by quoting a passage from the opinion in Mead Data Central, Inc. v. Department of the Air Force, 188 U.S.App. D.C. 51, 54, 575 F.2d 932, 935 (D.C.Cir. 1978), which distinguished "raw facts with informational value in their own right" from facts which "serve primarily to reveal the `evaluative' process by which different members of the decision-making chain arrived at their conclusions." The district judge then said that "[t]his distinction relate[d] to those tables and graphs which are
While we have not examined each of the 350 segments subject to this appeal with the care required to make an informed determination as to each and could not do so with any reasonable expenditure of judicial resources or within the time frame pressed by plaintiff, we have delved deeply enough to be seriously troubled.
A determination of which if any portions of an otherwise exempt document are nonexempt must begin with a consideration of the nature of the document as a whole. Disclosure of "purely factual material" in otherwise exempt documents may be ordered only if the material "is severable without compromising the private remainder of the documents." Mink, supra, 410 U.S. at 91, 93 S.Ct. at 838. More is required than merely plucking factual segments from the reports — there must be a sensitive reference to the relation of the factual segments to the report as a whole.
With respect to the DBA and CPA reports, LIA would presumably not claim the exemption would not cover a brief memorandum saying "We think a 50 ug/m
The court also ordered disclosure of segments from 14 documents, including the DBA and CPA reports, which
Beyond what has been said up to this point, if the proportion of nonexempt factual material is relatively small and is so interspersed with exempt material that separation by the agency and policing of this by the courts would impose an inordinate burden, the material is still protected because, although not exempt, it is not "reasonably segregable," under the final clause of § 552(b), see Mead Data Central, Inc. v. United States Department of Air Force, supra, 184 U.S.App.D.C. at 368-69, 566 F.2d at 260-61.
In an elaborate footnote in its brief (p. 50), the Government lists numerous instances of inconsistencies in the court's designation of segments. Our examination of these, necessarily but unhappily made without benefit of adversarial comment, leads us to believe that the Government is largely right. Two tables ordered to be disclosed are identical with those appearing at 43 F.R. 52967 and 54400. Some of the segments are simply trivial; since our disclosure of such banalities cannot impair any government interest, we reproduce a few in the margin
We note these deficiencies not so much in criticism of the district judge's performance of his task within the time frame he imposed upon himself but rather as showing that he should not have undertaken it. The documents submitted for inspection consist of 540 pages dealing, for the most part, with highly technical matters which the most competent judge, unless peculiarly experienced in the field, would find it difficult to understand without assistance from counsel and/or experts; in addition the task which the judge assumed required familiarity with the 55 page closely printed preamble to the standards and the 155 pages of attachment published in the Federal Register. Indeed insofar as the judge relied on the point that certain matters were not in the public record, he would have to search the 40,000 pages of the record, which were not before him, and then compare them with the reports submitted in camera. Yet the judge, doubtless under the impulse of the direction in 5 U.S.C. § 552(a)(4)(D)
We think it was error for the judge to have ordered in camera inspection, and particularly to have done so without hearing argument specifically addressed to that issue.
In Weissman v. C. I. A., 565 F.2d 692, 696-98 (D.C.Cir. 1977), a(b)(1), (b)(3), and (b)(7) case, the court emphasized the need for a restrained exercise of discretion with respect to in camera inspection where the Government's affidavits and actions made a plausible case for exemption, and also discussed the problem here presented, where
These considerations are peculiarly applicable here. The Government submitted affidavits which on their face indicated that the documents fell within exemption (b)(5), and detailed indices fully complying with the requirements of Vaughn v. Rosen, supra, 157 U.S.App.D.C. 340, 484 F.2d 820, which were strongly supportive of that claim. The most that plaintiff can argue with any show of reason is that some documents, predominantly exempt, may contain some non-exempt factual material, some of which may not be available in the public record. Thorough testing of that claim would require, not the maximum of ten days which the district judge devoted to the task, but at least that many weeks, very likely with the aid of a special master, see Vaughn v. Rosen, supra, 157 U.S.App.D.C. at 348, 484 F.2d at 828, who, unless himself an expert in the pertinent medical and economic problems, would require the aid of specialists on these subjects. After decision by the district court, we then would be obliged to conduct an equally searching review, see Vaughn v. Rosen, supra, 157 U.S. App.D.C. at 345, 484 F.2d at 825, hopefully aided by a report from the special master, an opinion by the district judge, or both, all or parts of which, however, would have to be kept secret from the requester until our decision was rendered and perhaps thereafter. By the time the needed process had been completed in the district court and here, the review petition in the D.C. Circuit would long since have been argued and decided unless that court were to stay its proceedings. And all this to the end that plaintiff, who is entitled under 29 U.S.C. § 655(f) to have the standards set aside if they are not supported by substantial evidence in the record, see also 29 C.F.R. § 1911.15(a)(2), may obtain some small aid in that endeavor by finding a few nuggets of non-intertwined, "reasonably segregable", non-record factual information in one or more of the documents prepared for use by the Assistant Secretary or CWPS. While an action like this is within the letter of FOIA, see 1 Davis, Administrative Law Treatise § 5:7 (2d ed. 1978), it was surely not at or even near the core of the problem addressed by Congress, see Renegotiation Board v. Bannercraft Corp., 415 U.S. 1, 22, 94 S.Ct. 1028, 39 L.Ed.2d 123 (1974); NLRB v. Sears, Roebuck & Co., supra, 421 U.S. at 143 n. 10, 95 S.Ct. 1504, and the case for in camera inspection with the effort here demanded was correspondingly weak. The judge thus erred in requiring the Government to submit the documents for in camera inspection. Since such examination as we have been able to make has revealed nothing that clearly was disclosable, save for items like those in fn. 24 of which LIA is well aware, we reverse the disclosure order resulting therefrom.
So much of the order as refused disclosure is affirmed; so much as required disclosure is reversed. The district court is directed to dismiss the complaint.
(1) All documents constituting, or referring or relating to, any communication between OSHA, on the one hand, and Nicholas Ashford, Dale Hattis, Center for Policy Alternatives, David J. Burton, D. B. Associates, Inc. (or any officer or employee thereof), John Short & Associates, Inc., Dr. Sergio Piomelli, Dr. Daniel Teitelbaum, Dr. Ruth Lilis, Dr. Alfred Fischbein, and/or Dr. Anna Maria Seppalainen, on the other, subsequent to January 1, 1977, concerning the Standard and/or the Record.
(2) All documents constituting, or referring or relating to, any contract or agreement with, or requests to, any person other than OSHA, the Office of the Solicitor or the Department of Labor for the evaluation, appraisal and/or preparation of written summaries or descriptions of the Record, and also all documents constituting, or referring or relating to, instructions with respect to such contracts, agreements or requests. (For purposes of this Request No. 2, the terms "OSHA", "Office of the Solicitor", and "Department of Labor" shall not include any agent, independent contractor or other person not a full-time, salaried employee of those governmental units.)
(3) All documents not protected by the attorney-client privilege constituting, or referring or relating to, any communication not protected by the attorney-client privilege between OSHA and the Office of the Solicitor subsequent to January 1, 1977, concerning OSHA's authority to promulgate, issue or enforce the Standard.
(4) All documents constituting, or referring or relating to, any communication between OSHA, on the one hand, and any union or labor organization (or officer, employee, attorney, agent or representative thereof), on the other, subsequent to January 1, 1977, concerning the Standard and/or the Record.
(5) All documents constituting, or referring or relating to, any communication between OSHA, on the one hand, and CEA, COWPS and/or RARG, on the other, subsequent to January 1, 1977, concerning the Standard and/or the Record.
Further light is afforded by an Executive Summary which reads: