Appeal from the United States District Court for the Western District of Pennsylvania, D.C. Civ. No. 81-1649
COLLINS J. SEITZ, Circuit Judge.
This is an appeal, after final judgment, from an order of the district court granting summary judgment and thereby denying production of documents requested of the Occupational Safety and Health Administration ("OSHA") under the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552 (1982), and The Privacy Act of 1974 ("Privacy Act"), 5 U.S.C. § 552a (1982). We have appellate jurisdiction under 28 U.S.C. § 1291 (1982).
Pasquale G. Cuccaro (plaintiff), a former employee of the United States Steel Corporation, was injured on the job, allegedly due to a faulty piece of equipment. He filed two complaints with OSHA in May of 1978 and June of 1980, alleging unsafe working conditions and inadequate medical treatment procedures. In February, 1981, plaintiff, invoking FOIA and the Privacy Act, requested certain materials in OSHA's files. OSHA provided plaintiff with the bulk of the requested files pursuant to FOIA, but withheld portions of the disclosed documents under certain exemptions of that Act; OSHA denied plaintiff's request under the Privacy Act.
Plaintiff then filed this action in the district court seeking disclosure of those portions of OSHA's files which were withheld. After a de novo review which included an in camera inspection of the withheld documents, the district court found that the documents in question were properly withheld from disclosure both under the Privacy Act and FOIA's exemptions and ultimately dismissed plaintiff's claims. Cuccaro v. Secretary of Labor, 562 F. Supp. 724 (W.D.Pa. 1983). This appeal followed.
Our scope of review in FOIA cases, where access to documents has been denied, is two-fold: we determine whether the district court had an adequate factual basis for its decision and whether its conclusion was clearly erroneous. Lame v. United States Dept. of Justice, No. 84-1615, slip.op. at 8 (3d Cir. July 15, 1985) (Lame II). Our scope of review of the district court's finding with respect to disclosure under the Privacy Act on summary judgment is the same as that utilized by the district court: we determine whether there exists any disputed issue of material fact, assume resolution of any disputed fact in favor of the non-movant, and determine whether the movant is entitled to judgment as a matter of law. First Jersey National Bank v. Dome Petroleum Limited, 723 F.2d 335, 338 (3d Cir. 1983).
Pursuant to Exemption 5 of the FOIA,*fn1 OSHA withheld portions of four documents requested by plaintiff: a staff opinion as to whether the general duty clause was applicable to this case; a staff opinion on complainant's physical condition; and evaluations by two compliance officers of the safety of the employer's workplace, and of its safety and health programs and their recommendations on the necessity of subsequent inspections. After inspecting the withheld materials in camera, the district court agreed with OSHA. It determined that the documents withheld are "predecisional, deliberative and subjective."
It is well-settled that Exemption 5 affords an agency an "executive privilege" with respect to intra-agency documents which reflect deliberative and desision-making processes and advisory opinions and recommendations of government. NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 148, 44 L. Ed. 2d 29, 95 S. Ct. 1504 (1975); Conoco Inc. v. United States Department of Justice, 687 F.2d 724, 727 (3d Cir. 1982).
Plaintiff asserts that, while the exemption protects documents which are predecisional and deliberative, it does not apply "to decisions reached and policies made," citing NLRB v. Sears, Roebuck & Co., supra. Plaintiff's position is not entirely clear. If plaintiff is asserting that, after OSHA rendered its decision, the documents lost their exempt status, appellant is simply mistaken: Congress did not intend such a result and case law has consistently held to the contrary.
In NLRB v. Sears, Roebuck & Co., the Supreme Court discussed the contours of the executive privilege as delineated by both case law and Congressional reports:
The cases uniformly rest the privilege on the policy of protecting the "decision making processes of government agencies," Tennessean Newspapers, Inc. v. FHA, 464 F.2d 657, 660 (CA6 1972); Carl Zeiss Stiftung v. V. E. B. Carl Zeiss, Jena, 40 F.R.D. 318 (DC 1966); see also EPA v. Mink, supra, at 86-87; International Paper Co. v. FPC, 438 F.2d 1349, 1358-1359 (CA2 1971); Kaiser Aluminum & Chemical Corp. v. United States, supra, at 49, 157 F. Supp., at 946; and focus on documents "reflecting advisory opinions, recommendations and deliberations comprising part of a process by which governmental decisions and policies are formulated." Carl Zeiss Stiftung v. V. E. B. Carl Zeiss, Jena, supra, at 324. The point, plainly made in the Senate Report, is that the "frank discussion of legal or policy matters" in writing might be ...