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MILES v. U.S. DOL

August 31, 1982

Chester MILES d/b/a Miles Foundry, Plaintiff,
v.
U.S. DEPARTMENT OF LABOR, et al., Defendants



The opinion of the court was delivered by: CONABOY

 CONABOY, District Judge.

 This is an action brought under the Freedom of Information Act (FOIA), 5 U.S.C. § 552 et seq. (1976). In this suit, Plaintiff seeks disclosure of the entire investigatory file compiled by the Occupational Health and Safety Administration (OSHA), in connection with that agency's investigation of an industrial accident involving A.C. Crossley and Sons, Inc. of Susquehanna, Pennsylvania. Plaintiff was the manufacturer of a boiler manhole cover formerly in use at the Crossley sawmill which was allegedly improperly constructed and contributed to the cause of the accident. Plaintiff avers that it is being "threatened" *fn1" with a civil suit by A.C. Crossley and Sons, Inc. and is in need of the information procured by OSHA to properly defend itself in any such action. Presently pending before the Court is a motion for summary judgment filed by the Defendants. After carefully considering the parties' briefs and examining the materials withheld in camera,2 the Court will grant this motion.

 Preliminarily, we will briefly set forth the procedural history of Plaintiff's FOIA request. By letter dated July 17, 1980, Plaintiff requested "the opportunity to review all files and information . . . under the jurisdiction of OSHA or other state, federal or local government agencies" pertaining to the industrial accident in question. By letter dated August 1, 1980, portions of the investigative file were made available to Plaintiff by Leo Carey, OSHA Area Director. Plaintiff then appealed Mr. Carey's partial denial to the Solicitor of Labor, who, by letter dated October 29, 1981, made the remainder of the file available to Plaintiff, except for certain excised items on the documents released. *fn3" Having exhausted his administrative remedies, Plaintiff filed his Complaint in this Court on December 30, 1981 seeking "all information regarding their [OSHA's] investigation of the incident which occurred at the sawmill owned by A.C. Crossley & Sons, Inc. on February 28, 1979." Complaint (Doc. # 1) at 3.

 The bases for Defendants' motion for summary judgment as to the remaining materials withheld are exemption 5, 7(C) and 7(D) of the FOIA, 5 U.S.C. §§ 552(b) (5), 552(b) (7) (C), 552(b) (7) (D). We will discuss these statutory exceptions seriatim.

 A. Exemption 5

 Under this provision an agency is permitted to withhold:

 
"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."

 Pursuant to this section, it is well established that an "executive privilege" exists which entitles an agency to withhold from disclosure intragovernmental documents reflecting advisory opinions, recommendations, and deliberations comprising part of the process by which agency decisions are formulated. Conoco, Inc. v. United States Department of Justice, 687 F.2d 724 at 726 (3d Cir. August 25, 1982); United States v. Berrigan, 482 F.2d 171, 181 (3d Cir. 1973); see NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 95 S. Ct. 1504, 44 L. Ed. 2d 29 (1975); EPA v. Mink, 410 U.S. 73, 93 S. Ct. 827, 35 L. Ed. 2d 119 (1973). As recently noted by our Court of Appeals in Conoco :

 
The Supreme Court recognized that Congress intended Exemption 5 to embody an executive privilege with contours broad enough to protect the deliberative and decision-making processes of government. Sears, 421 U.S. at 150 [95 S. Ct. at 1516]. "Manifestly, the ultimate purpose of this long-recognized privilege is to prevent injury to the quality of agency decisions. The quality of a particular agency decision will clearly be affected by the communications received by the decisionmaker on the subject of the decision prior to the time the decision is made." Id. at 151 [95 S. Ct. at 1516].

 Conoco, Inc. v. United States Department of Justice, supra, at 727. Thus, the intent of this exception is to protect the consultative functions of government by furthering open and frank communications within and between agencies of proposed administrative action. Cooper v. Department of the Navy, 558 F.2d 274, 276-77 (5th Cir. 1977).

 In the instant case, the following materials were alleged to be withheld pursuant to Exemption 5:

 
(a) the CO's [OSHA Compliance Officer] opinion regarding the likelihood of occurrence of future accidents of a similar nature under the same circumstances as existed in that case (as computed on an ...

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