The opinion of the court was delivered by: HIGGINBOTHAM
In this civil suit for damages arising out of the accidental death of plaintiff's decedent, an employee of the above named defendant Sun Shipbuilding and Drydock Company, on July 31, 1963, as the result of a fall from a ship located at the defendant's drydock, the plaintiff seeks by the present motion to compel production of a report of the accident prepared immediately after its occurrence by investigators representing the Office of Occupational Safety, Bureau of Labor Standards, U.S. Department of Labor. The report is purported to consist of statements of witnesses, factual findings made by the investigators, and their conclusions as to the causes of the accident.
On September 19, 1967, pursuant to Rule 45(d), F.R.Civ.P., the plaintiff served subpoenas upon Warren Wright, Area Supervisor of the Office of Occupational Safety, and Oscar DiSilvestro, Senior Maritime Officer for that agency. The subpoena served upon Mr. Wright requested that the witness bring with him:
"1. Report of findings pertaining to the investigation into the death of Francis X. Hunter, which occurred on or about July 31, 1963, at Sun Shipbuilding and Drydock Company.
"2. Any physical evidence including, but not limited to photographs taken of or from the scene where the accident occurred."
Pursuant to the subpoena Messrs. Wright and DiSilvestro appeared at the law office of plaintiff's counsel and were deposed. But, the witnesses did not bring with them any of the documents requested by the subpoena. Counsel for the witnesses advised counsel for the plaintiff that the witnesses would not be permitted to produce the requested documents on the ground that the accident report was confidential. No motion to quash the subpoena was filed, nor did the Secretary of Labor assert any claim of privilege.
The witnesses were permitted to testify as to what they personally did and observed while investigating the accident, but only on the strength of their personal recollections and without the opportunity to refresh their recollections by referring to their written reports. Each question which sought to elicit from the witnesses an opinion or conclusion as to the causes of the accident, or what eyewitnesses to the accident told them was objected to by their counsel, and the witnesses were directed not to answer. The plaintiff then filed his present motion to compel production.
In support of his motion to compel production the plaintiff argues that the government has not met its burden of showing that its refusal to produce the documents is supported by any statute or administrative directive, and that the report is "necessary, material and relevant to a full presentation of the plaintiff's case in court, and non-production will impair the plaintiff's ability to meet his burden of proof."
The United States Attorney for the Eastern District of Pennsylvania has filed several briefs in opposition to the plaintiff's motion. The briefs disclaim any interest on the part of the government in the substantive issues involved in the civil suit, but defends the refusal of the Department of Labor officials to produce the subpoenaed documents.
The government's argument has, essentially, two bases. First, it argues that the MAR-6 Investigator's Report of an Accident "was a report prepared for law enforcement purposes, and for that reason is exempt from the disclosure provisions of the 'Freedom of Information Act'," P.L. 89-487, 80 Stat. 250 (revising Section 3 of the Administrative Procedure Act, 5 U.S.C. § 1002; which was thereafter codified by P.L. 90-23, 81 Stat. 54, to amend Section 552 of Title 5, U.S.C.), and the revised disclosure regulations of the Department of Labor, 29 C.F.R. § 70(3)(g), 32 Fed.Reg. pp. 11033-34, July 28, 1967. Secondly, it argues that the plaintiff has failed to make the proper showing of good cause required to compel production under Rule 45 as well as under Rule 34 F.R.Civ.P.
I. The Public Information Act.
In determining the validity of the government's first argument it would be well to consider the background of the amended Section 3 of the A.P.A., the abuses it was intended to correct, and the changes in the existing law which it effected.
House Report No. 1497 provides the only reported legislative history of Bill S. 1160, which was reported out of the House Committee on Government Operations unamended and became the amended Section 3 of the Administrative Procedure Act. According to that Report, the bill was intended to correct certain administrative abuses which were prevalent under the original Section 3. Although that Section was also characterized as the "Public Information" section of the A.P.A., in the words of the committee:
"Section 3 of the Administrative Procedure Act (5 U.S.C. 1002), though titled 'Public Information' and clearly intended for that purpose, has been used as an authority for withholding, rather than disclosing information. * * * The present statute therefore, is not in any realistic sense a public information statute. * * *"
"It is vital to our way of life to reach a workable balance between the right of the public to know and the need of the government to keep information in confidence to the extent necessary without permitting indiscriminate secrecy. * * * This bill strikes a balance considering all these interests."
Accordingly, the bill replaced the broad, undefined phrases of the original Section 3, which regulated the circumstances of disclosure, ("in the public interest", "for good cause found", etc.) with a section which requires the availability to any member of the public of all of the agency records described in its provisions, except those involving matters falling within nine stated exemptive provisions. And, under the new statute the burden is on the government to sustain any action of denying a request for access to its records (5 U.S.C. § 552(a)(3).
The government purports to find its justification in one of the exemptive provisions - § 552(b)(7) - and the regulations of the Department of Labor promulgated incident thereto by the Secretary of Labor. Subsection (b)(7) provides:
"Exemptions. - The provisions of this section [regarding disclosure] shall not be applicable to matters that are * * * (7) investigatory files compiled for law enforcement purposes, except to the ...