Petition — Consumer Product Safety Comm'n v. GTE Sylvania, Inc.

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Supreme Court, U. @. ey

| EILED

79 rs SEP 27 1979

No. ol La icipne. goon, JR. CLERK’

rowers

—

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In the Supreme Cort of the United States

OCTOBER TERM, 1978

CONSUMER PRODUCT SAFETY COMMISSION, ET AL.,

PETITIONERS

Vv.

GTE SYLVANIA, INC., ET AL.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR

THE THIRD CIRCUIT

WADE H. MCCREE, JR.

Solicitor General

ALICE DANIEL

Acting Assistant Attorney General

RICHARD A, ALLEN

Assistant to the Solicitor General

LEONARD SCHAITMAN

MARK N. MUTTERPERL

Attorneys

Department of Justice

Washington, D.C. 20530

INDEX

Page

aaah cndechatiennnseenebivinnntinntibe 2

GEA SA 2

Question presented ..........................s.sccseecceeneoenes 2

SESE ae ee a 2

SESE REESE Sn a ee 3

Reasons for granting the petition -.................. 9

A 18

aad Wi osninnad snsdlceiiwetninnincamenssiiianninn la

CEE 71a

Ls SES ee 77a

CITATIONS

Cases:

Chrysler Corp. v. Brown, No. 77-922

ios oastigusinpeaninisinhinies 9

GTE Sylvania, Inc. v. Consumer Product

Safety Commission, 404 F. Supp. 352.... 7

NLRB vy. Bell Aerospace Co., 416 U.S.

EES SENET ETE SO Seer 16

NLRB v. Sears, Roebuck & Co., 421 U.S.

RE UNE: SSUES se 14

Pierce & Stevens Chemical Corp. v. United

States Consumer Product Safety Com-

mission, 585 F.2d 1382 -........................ 5,9

Reiter v. Sonotone Corp., No. 78-690

RA AUN II icdsiicinsdetinretcecinnbncnioneendancas 16

> pag

Statutes and rule: Page

Consumer Product Safety Act, Pub. L.

No. 92-578, 86 Stat. 1207, 15 U.S.C.

BE Soin panesertncaienieentenaneninns 3

Section 2(b), 15 U.S.C. 2051 (b)........ 13

Section 2(b) (1), 15 U.S.C. 2051(b)

hg Senet SER rere eee ae oem 4

Section 2(b) (2), 15 U.S.C. 2051 (b)

ase Senay SW ERL ND Ta RS REEe 4

Section 4, 15 U.S.C. 2053 -................. 4

Section 6, 15 U.S.C. 2054 .................. 14

Section 6(a) (1), 15 U.S.C. 2054 (a)

6 EERE RCNNEL RL ON NORE CNT 10, 12

Section 6(b) (1), 15 U.S.C. 2055 (b)

DR on allcndcld ucniolancecelieilintaa i boninssacietateel passim

Section 27 (b) (1), 15 U.S.C. 2076 (b)

ew cikc. bias aciliaaaisuuneieisecshicemnptblieaeanceat 4

Section 27(b) (3), 15 U.S.C. 2076(b)

DO ina it las ceca al tients 4

Section 29(e), 15 U.S.C. 2078 (e)...... 15, 16

Freedom of Information Act, 5 U.S.C. 552

et seq.:

Be RL: MII sitiincahdilacanchccdelsstepuiccdipiclaai aoniisins 5

Mey NEED siisseracecenccanensadocscine 16

5 USK. Gbn(a) t4) (8) .«................... 11

5 Ua Geeta te te) .................... 16

5 U.S.C. 552(a) (6) (A) (i) --..--...... 16

5 U.S.C. 552 (a) (6) (A) (ii) -2 16

te WFD pacnideeecss----... 8

BS 5) ecm ne 6

Ale EID © EP eerecineciesnsncseninncninas 6

Statutes and rule—Continued Page

Trade Secrets Act, ch. 645, 62 Stat. 791,

Be eo lalesirrtincstencdosonnccreaeenoiicons 6, 9

Pe MRE ID dacpcdevsncceccsenncioveveeencnnraiocs 11

Ie Be. BP ecctnenectecevedecesentbnrantrsmmceinas 8

Miscellaneous:

39 Fed. Reg. 10929 (1974) ue. 4

H.R. Conf. Rep. No. 1022, 94th Cong., 2d

Me TP ea er 15

Sa a oe j

Ju the Supreme Court of the United States

OCTOBER TERM, 1978

No.

CONSUMER PRODUCT SAFETY COMMISSION, ET AL.,

PETITIONERS

VU.

GTE SYLVANIA, INC., ET AL.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR

THE THIRD CIRCUIT

The Solicitor General, on behalf of the Consumer

Product Safety Commission, et al.,. petitions for a

writ of certiorari to review the judgment of the

United States Court of Appeals for the Third Circuit

in this case.

1 The petitioners in this case are the Commission and cer-

tain of its officials and employees, all of whom are defend-

ants in actions brought by respondents to enjoin the dis-

closure of documents under the Freedom of Information Act.

See pages 3-6, infra.

(1)

OPINIONS BELOW

The opinion of the court of appeals (App. A, infra,

la-70a) is reported at 598 F.2d 790. The opinion of

the district court (App. C, infra, 77a-104a) is re-

ported at 443 F. Supp. 1152.

JURISDICTION

The judgment of the court of appeals (App. B,

infra, 71a-76a) was entered on April 30, 1979. On

July 20, 1979, Mr. Justice Brennan extended the

time for filing a petition for a writ of certiorari to

and including August 28, 1979, and on August 21,

1979, he further extended the time to and including

September 27, 1979. The jurisdiction of this Court

is invoked under 28 U.S.C. 1254(1).

QUESTION PRESENTED

Whether Section 6(b) (1) of the Consumer Product

Safety Act, 15 U.S.C. 2055(b)(1), applies to the

disclosure of records by the Consumer Product Safety

Commission pursuant to a request under the Free-

dom of Information Act.

STATUTE INVOLVED

Section 6(b)(1) of the Consumer Product Safety

Act, 15 U.S.C. 2055 (b) (1), provides:

Except as provided by paragraph (2) of this

subsection, not less than 30 days prior to its

public disclosure of any information obtained

under this chapter, cr to be disclosed to the pub-

lic in connection therewith (unless the Commis-

sion finds out that the public health and safety

requires a lesser period of notice), the Commis-

sion shall, to the extent practicable, notify and

provide a summary of the information to, each

manufacturer or private labeler of any consumer

product to which such information pertains, if

the manner in which such consumer product is

to be designated or described in such information

will permit the public to ascertain readily the

identity of such manufacturer or private labeler,

and shall provide such manufacturer or private

labeler with a reasonable opportunity to submit

comments to the Commission in regard to such

information. The Commission shall take reason-

able steps to assure, prior to its public disclosure

thereof, that information from which the iden-

tity of such manufacturer or private labeler may

be readily ascertained is accurate, and that such

disclosure is fair in the circumstances and rea-

sonably related to effectuating the purposes of

this chapter. If the Commission finds that, in

the administration of this chapter, it has made

public disclosure of inaccurate or misleading in-

formation which reflects adversely upon the

safety of any consumer product, or the prac-

tices of any manufacturer, private labeler, dis-

tributor, or retailer of consumer products, it

shall, in a manner similar to that in which such

disclosure was made, publish a retraction of such

inaccurate or misleading information.

STATEMENT

1. In 1972, Congress enacted the Consumer Prod-

uct Safety Act, Pub. L. No. 92-578, 86 Stat. 1207,

15 U.S.C. 2051 et seqg., in order “to protect the public

against unreasonable risks of injury associated with

consumer products” and “to assist consumers in eval-

uating the comparative safety of consumer products”

(15 U.S.C. 2051(b)(1) and (2)). The Act estab-

lished the Consumer Product Safety Commission to

carry out the statutory purposes. 15 U.S.C. 2053.

In 1974, the Commission initiated an administra-

tive proceeding to examine the safety of television

sets. See 39 Fed. Reg. 10929 (1974). In con-

nection with that proceeding, the Commission ob-

tained from respondents, who are television manufac-

turers, reports of television-related accidents (¢.g.,

fires, electric shocks, etc.). The Commission acquired

this information (more than 120,000 pieces of paper)

partly through requests and partly through special

orders and subpoenas issued under 15 U.S.C. 2076 (b)

(1) and (8). Claims of confidentiality accompanied

the information submitted by most of the manufac-

turers (App. A, infra, 1la-12a).’

In June 1974, Consumers Union of the United

States, Inc., and Public Citizen’s Health Research

2'To reduce the information obtained to a manageable form,

the Commission retained a private company to catalogue the

accident data. In addition, a Commission consultant helped

to process, analyze and summarize the data. As a result of

these efforts, “the Commission now has nine file cabinets

containing information on 7,620 TV-related accidents, each

of which is in a separate file folder under the manufacturer’s

name.” See C.A. App. 455. (“C.A. App.” refers to the Joint

Appendix to the briefs in the court of appeals.)

—————————

aia

Group requested the Commission to disclose the tele-

vision-related accident reports under the Freedom of

Information Act, 5 U.S.C. 552 (“FOIA”). The Com-

mission disclosed portions of the reports as to which

no claim of confidentiality had been made. With re-

spect to the rest, it directed the manufacturers to

substantiate their claims of confidentiality (App. A,

infra, 18a).

On April 8, 1975, after further communication

with the manufacturers and the requesters, the Com-

mission informed the parties of its legal determina-

tion that the requested reports were not exempt from

mandatory disclosure under the FOIA and notified

them that it would release all of the reports except

for the identity of accident victims and any docu-

ments subject to the attorney-client privilege or the

attorney-work product doctrine (C.A. App. 456). The

Commission added that the release of the data would

be accompanied by a statement that “the information

could be misleading because some television manu-

facturers maintained more complete accident reports

than other manufacturers” (C.A. App. 95, 459).

8 In Pierce & Stevens Chemical Corp. v. United States Con-

sumer Product Safety Commission, 585 F.2d 1382, 1888 n.28

(1978), which also involved a suit to enjoin a Commission

disclosure under the FOIA, the Second Circuit noted that the

Commission had offered to include with the disclosed records

in that. case a statement by the manufacturer regarding

alleged inaccuracies in the records. The court commended the

procedure, stating that, although not required by law, “this

procedure is a sensible and fair accommodation of the manu-

facturers’ and labelers’ interests and we encourage the Com-

The manufacturers objected to disclosure of the

reports. They claimed that the information was of

a confidential nature, that it had been compiled in

connection with an administrative investigation, and

that it was exempt from mandatory disclosure under

Exemptions 4 and 7 of the FOIA, 5 U.S.C. 552(b)

(4) and (7), and was barred from disclosure by the

FOIA and the Trade Secrets Act, 18 U.S.C. 1905

(see C.A. App. 85-93).

2. In April and May 1975, respondents (13 tele-

vision manufacturers) instituted separate suits in

the United States District Court for the District of

Deleware and other federal district courts, seeking to

enjoin the Commission and certain of its officers and

employees from disclosing the television-related acci-

dent reports pursuant to the FOIA requests. The

complaints reiterated the manufacturers’ previous

claims that the disclosure would violate the FOIA and

the Trade Secrets Act. The complaints also alleged,

for the first time, that disclosure would violate Sec-

tion 6(b) (1) of the Consumer Product Safety Act,

15 U.S.C. 2055(b) (1) (see C.A. App. 51-65, 105-

231).

Section 6(b)(1) provides in pertinent part that

“not less than 30 days prior to [the Commission’s]

public disclosure of any information obtained under

this chapter,” the Commission shall notify each man-

mission to continue the practice.” Jbid. The Commission has

generally followed this procedure whenever a manufacturer

or labeler of a consumer product has objected to this kind

of disclosure.

ufacturer or labeler to whom the information per-

tains and whose identity can be readily identified

from the information of the intended disclosure and

give it an opportunity to comment on the disclosure.

The section further provides:

The Commission shall take reasonable steps to

assure, prior to its public disclosure thereof, that

information from which the identity of such

manufacturer or private labeler may be readily

ascertained is accurate, and that such disclosure

is fair in the circumstances and reasonably re-

lated to effectuating the purposes of this chapter.

Furthermore, if the Commis:ion finds that it has

publicly disclosed inaccurate or misleading informa-

tion reflecting adversely on any manufacturer’s prod-

ucts or practices, Section 6(b) (1) requires it to “pub-

lish a retraction” in a manner “similar to that in

which such disclosure was made.”

Respondents asserted, among other things, that the

“information contained in the materials to be dis-

closed is inaccurate and misleading; and disclosure

would not be fair in the circumstances or reasonably

related to effectuating the purposes of the Consumer

Product Safety Act” (see, e.g., C.A. App. 63).

3. Respondents’ suits were consolidated in the

United States District Court for the District of Dela-

ware. On October 23, 1975, the district court entered

a preliminary injunction prohibiting the Commission

from disclosing the requested documents. GTE Syl-

vania Inc. v. Consumer Product Safety Commission,

404 F. Supp. 352. On December 8, 1977, the district

court permanently enjoined the Commission from dis-

closing the documents (App. B, infra, 7 la-104a). The

court rejected the Commission’s contention that Sec-

tion 6(b) (1) applies only when the Commission af-

firmatively undertakes to disclose information to the

public, but not when it merely complies with a re-

quest for information under the Freedom of Infor-

mation Act. The court held that Section 6(b) (1) is

applicable to disclosures pursuant to FOIA requests

and that it is a withholding statute within the mean-

ing of Exemption 3 of the FOIA, 5 U.S.C. 552(b)

(3). The court also found that the Commission failed

to comply with the Section 6(b) (1) procedures and

that release of the accident reports would therefore

be contrary to the Act (App. B, infra, 97a-98a).*

4 The requesters, Consumers Union and the Health Research

Group, deliberately chose not to intervene in this action (App.

A, infra, 18a). Instead, on May 5, 1975, they brought suit

under the FOIA in the United States District Court for the

District of Columbia seeking to compel the Commission to

release the identical documents at issue in this case. That

lengthy and “tortuous” litigation (App. A, infra, 18a),

which is now before this Court in GTE Sylvania, Inc. V.

Consumers Union of the United States, No. 78-1248, presents

the question whether the District of Columbia Circuit erred

in holding that the permanent injunction obtained by respond-

ents in the District of Delaware does not bar the requesters

from litigating their separate FOIA action in the District of

Columbia.

Consumers Union and the Health Research Group appeared

in this case for the first time in the court of appeals as amici

curiae to argue that they were indispensable parties within

the meaning of Fed. R. Civ. P. 19 and that respondents’ com-

plaints should therefore have been dismissed in their absence.

The court of appeals rejected this argument (App. A, infra,

20a-26a).

The court of appeals affirmed. It agreed with the

district court that Section 6(b)(1) applies to dis-

closures pursuant to FOIA requests and that it is a

withholding statute within the meaning of Exemption

3 (App. A, infra, 26a-70a). The court refused to fol-

low the recent decision of the Second Circuit in

Pierce & Stevens Chemical Corp. v. United States

Consumer Product Safety Commission, 585 F.2d 1382,

1388-13889 (1978), which specifically held that “the

procedures of Section 6(b)(1) do not apply when

the Commission merely responds to a request under

the FOIA.” °

REASONS FOR GRANTING THE PETITION

This Court’s review of the decision below is needed

to resolve a conflict among the circuits on a recurring

question of great importance to the Consumer Prod-

uct Safety Commission.

1. As the court of appeals acknowledged (App. A,

infra, 35a-36a), its decision is in direct conflict with

Pierce & Stevens Chemical Corp. v. United States

Consumer Product Safety Commission, 585 F.2d 1382

(2d Cir. 1978). In that case, the Second Circuit up-

held the Commission’s contention that Section 6(b)

5In view of their conclusion that Section 6(b) (1) of the

Consumer Product Safety Act prohibits disclosure of the acci-

dent reports, neither the district court nor the court of ap-

peals reached respondents’ further claims that disclosure

would contravene Exemptions 4 and 7 of the FOIA (claims

that would now seem to be foreclosed by Chrysler Corp. Vv.

Brown, No. 77-922 (Apr. 18, 1979) and 18 U.S.C. 1905.

(1) of the Consumer Product Safety Act was in-

tended to apply only to situations in which the Com-

mission discloses information to the public on its own

initiative—either in the exercise of its explicit statu-

tory duty to “disseminate * * * information relating

to the [adverse effects of] consumer products” (15

U.S.C. 2054(a) (1) ), or otherwise in publicly express-

ing its own views (e.g., in a press release, press con-

ference, speech or publication-—but is inapplicable

when the Commission merely responds to a request

under the FOIA. 585 F.2d at 1386-1389. The court

concluded that the language of Section 6(b) (1), its

relation to the rest of the statute and its legislative

history all indicate that it was designed to deal only

with problems that may arise when the Commission

disseminates information on its own initiative and to

the public at large but that do not arise when the

Commission does nothing more than comply with an

FOIA request for discrete documents by a particular

individual or group—namely, the danger that the

Commission itself may unfairly focus adverse pub-

licity on a business or product and that the public

will tend to view such Commission-initiated disclo-

sures as having been approved and verified by the

federal government and thus to accord them special

significance. 585 F.2d at 1387-1388.

In this case, the Third Circuit has held to the con-

trary. It has concluded that the Commission may

not disclose information requested under the FOIA

unless it undertakes all the steps set forth in Section

6(b)(1) of the Act. This conflict is particularly

troublesome because it threatens to subject the Com-

mission to irreconcilable obligations: if the agency

were to adopt the Third Circuit’s view and decline

to disclose information requested under the FOIA on

the ground that it has not been able to verify the

accuracy of the information requested, it is likely to

be sued by the requester in the Second Circuit. On

the other hand, if the Commission were to follow the

Second Circuit’s view, it faces the possibility of a

lawsuit by the submitter in the Third Circuit,?-Un-

less this Court resolves the conflict, the Commission

will be uncertain of its legal obligations upon receipt

of an FOIA request for identifiable documents in its

possession, and it may even be bound by inconsistent

judgments of two different courts, as this case and

the related case now pending before the Court (GTE

Sylvania, Inc. v. Consumers Union of the United

States, No. 78-1248) manifestly illustrate. See note

4, supra.

2. The dilemma created by the court of appeals’

decision is a recurring one of great importance to

the Consumer Product Safety Commission. The deci-

® This is so because the venue provisions of the FOIA and

28 U.S.C. 13891(e) accord requesters and submitters a broad

choice of forums in which to litigate their claims. 5 U.S.C.

552(a) (4) (B) gives the district courts jurisdiction over

FOIA complaints brought in the district “in which the com-

plainant resides, or has his principal place of business, or in

which the agency records are situated, or in the District of

Columbia * * *.” 28 U.S.C. 1891(e) allows suits against

federal officers to be brought in any district in which a de-

fendant resides, the cause of action arose, or the plaintiff

resides if no real property is involved in the action.

sion below either would impose a substantial, if not

impossible, administrative burden on the agency to

verify the accuracy of the information it produces

pursuant to the FOIA or would effectively preclude

it from complying with most FOIA requests. Hither

result would seriously impair the Commission’s exer-

cise of its statutory functions and responsibilities.

The Consumer Product Safety Act directs the Com-

mission to obtain information concerning product-

related injuries and to communicate that information

to the public. 15 U.S.C. 2054(a) (1). Pursuant to

this statutory directive, the Commission acquires a

substantial amount of information, including approx!-

mately 10,000 consumer complaints each year, con-

cerning the safety of particular products. The Com-

mission estimates that 95% of the information it

obtains identifies a manufacturer, and a significant

portion of that information is the subject of FOIA

requests. Thus, in 1978 alone, the Commission re-

ceived approximately 7,800 FOIA requests, some 60

to 70% of which related to consumer complaints.

The court of appeals’ ruling prohibits the Commis-

sion from complying with these FOIA requests unless

it undertakes an investigation in each case to deter-

mine whether each item of information requested is

accurate and whether disclosure would be fair in the

circumstances and reasonably related to the purposes

of the Act. Because those facts are rarely apparent

from the face of the documents requested or the re-

quests themselves,’ such particularized investigations

7 If, as the court below held, the Commission must comply

fully with Section 6(b) (1) before it may respond to an FOIA

(e.g., to determine whether a complaining consumer

had been injured as he alleged) would require an

enormous expenditure of administratiev time and

resources.* Indeed, because the task imposed by the

court of appeals would be beyond the ability of the

Commission to perform in more than a handful of

cases, consistent with its other statutory functions,

the practical effect of the court’s ruling would be to

prevent .he Commission from complying with most

FOIA requests for information in its possession, a

result that would be contrary to the basic purposes

of both the Consumer Product Safety Act and the

Freedom of Information Act.

3. We submit that the decision below is incorrect

for the reasons stated by the Second Circuit in Pierce

request, it would have to determine not only whether each

item of information requested is accurate but also, presum-

ably, whether disclosure of the information “is fair in the

circumstances and reasonably related to the purposes of

[The Act].” 15 U.S.C. 2055 (b) (1). The latter determination

would depend (at least arguably) on the interests of the

requester. Disclosure of information for one purpose may be

related to the goals of the Act whereas disclosure of the same

information for another purpose may not be so related. See

15 U.S.C. 2051(b). Hence, the Commission might be required

to inquire into the requester’s motives—a precarious inquiry

at best and one that is contrary to the normal rules under the

FOIA. This is one of the anomalous consequences that sup-

ports our contention that Section 6(b) (1) was not intended

to apply to Commission responses to FOIA requests.

®’The present case exemplifies the crippling effect that

applying Section 6(b) (1) to FOIA requests would have on

the Commission. In order to process the FOIA requests in this

case in compliance with the Third Circuit’s decision, the

Commission would be required to investigate the accuracy

of each of the 7,620 accident reports submitted by respondents.

& Stevens Chemical Corp. v. United States Consumer

Product Safety Commission, supra. As the Second

Circuit observed, “the phrase ‘public disclosure’, used

in the title to Section 6 and repeated several times in

subsection (b) (1), does imply something — than

simply furnishing information upon request.” 585

F.2d at 1887. Furthermore, the court noted that,

under the last sentence of Section 6(b) (1), “if the

Commission has erred by disclosing inaccurate -

misleading information, it must ‘publish a retraction

of that information ‘in a manner similar to that in

which.such disclosure was made.’” (ibid.; emphasis

in original). Since the FOIA does not require an

agency to “publish” requested information or permit

it to edit or amend such information for accuracy,

the court correctly concluded that “[t]his language

seems to envision agency-initiated publicity, via press

release or otherwise, rather than a mere request for

a document under the FOIA.” Ibid.’

The Second Circuit also found support for the

Commission’s interpretation of Section 6(b)(1) in

the legislative history of the Consumer Product Safety

Act. 585 F.2d at 1387 & n.23. In discussing a

® As the court further explained (585 F.2d at 1388) :

[Slection 6(b) (1) obviously contemplates that, in an

appropriate case, the Commission review and rewrite

a document prior to its release to make it accurate. But

under the FOIA, an agency does not rewrite a document

or create informational material. It discloses existing

documents which it has already prepared.

See also NLRB v. Sears, Roebuck & Co., 421 U.S. 182, 161-162

(1975).

1976 amendment to Section 29(e) of the Act, 15

U.S.C. 2078(e), the Conference Committee Report

declared:

The requirement that the Commission comply

with section 6(b) prior to another Federal agen-

cy’s public disclosure of information obtained

under the Act is not intended by conferees to

supersede or conflict with the requirements of

the Freedom of Information Act (5 U.S.C. 552

(a)(3) and (a) (6). The former relates to pub-

lic disclosure initiated by the Federal agency

while the latter relates to disclosure initiated by

a specific request from a member of the public

under the Freedom of Information Act.

H.R. Conf. Rep. No. 1022, 94th Cong., 2d Sess. 27

(1976) (emphasis supplied).

The Third Circuit ascribed little weight to the views

expressed in the Conference Committee Report on the grounds

that (1) it constituted “subsequent legislative history” (App.

A, infra, 54a-55a); (2) the Conference Committee’s views

about Section 6(b) were “erroneous” (id. at 56a) ; and (38) the

report dealt primarily with the 1976 amendment that added

Section 29(e), which “by its terms, does not interpret the

scope of section 6(b)” (id. at 55a).

None of those grounds withstands analysis. First, the re-

port is not the kind of “subsequent legislative history” that

is entitled to little weight, because it discussed extensive and

comprehensive amendments to the Act that Congress in fact

adopted. In these circumstances, the Conference Committee’s

views on the meaning of the Act before its amendment are

significant evidence of Congress’s understanding of both the

original and amended statute. Second, Section 29 (e) is closely

related to Section 6(b) and indeed refers to Section 6(b).

Section 29(e) allows the Commission to provide other state

and federal agencies with consumer accident reports or in-

Finally, the Second Circuit found that the Com-

mission’s interpretation “is further supported by the

inconsistency between Section 6(b) (1) and the

scheme of the FOIA” (585 F.2d at 1887). The en

requires that agencies make records “promptly avail-

able to any person” (5 U.S.C. 552 (a) (3)) and that

an agency respond to FOIA requests within 10 days

and decide administrative appeals within 20 days (5

U.S.C. 552(a) (6) (A) (i) and (ii) ). The FOIA also

mandates accelerated judicial review: pine cases

shall “take precedence” on the district court’s docket

and be “expedited in every way” (5 U.S.C. probe

(D)). In contrast, the Second Circuit noted, “the

procedures of section 6(b) (1) consume at oe 30

days and probably a much longer period before ‘pub-

igations made by Commission employees, which reports

oar are information obtained by the pecan apeaeed

its statutory authority. Section 29 (e) expressly prohit . ho

other agencies from beerary [ing] 2 a ye ey = esse

i i in a repo un

0 cer with ths applicable requirements ¥ one 0am

6(b)].” The Conference Committee Report makes Cc ra ai

ever, that that restriction, like the oo be en

6(b), do not apply to disclosures pursuant to F — “ae

Indeed, if the information involved in this nage Agr

given to another federal agency under Section = Po

Conference Committee Report makes clear that t e : -

agency would be required to disclose the age nig od ‘

FOIA requester (subject, of course, to possible FO “- ce =

tions). In view of this relationship between Section ae

Section 6(b), the Conference Committee Report is a ei

evidence of the scope of Section 6 (b) 7 See Reiter mn ape m

Corp., No. 78-690 (June 11, 1979), slip op. 10 n.7; i

Bell Aerospace Co., 416 U.S. 267, 275 (1974).

lic disclosure’ occurs” (585 F.2d at 1388). As the

court explained (ibid.) :

if the Commission must take “reasonable steps

to assure” the accuracy of all information in a

record to be disclosed, this would reauire inde-

pendent investigation of information received,

as here, from another agency some eight years

before. Clearly, this would involve long delays

inconsistent with the purpose of the FOIA.

In sum, the Second Circuit correctly concluded that

the Commission’s interpretation of Section 6(b) (1)

avoids what would otherwise be inconsistencies and

conflicts between the purposes and specific procedures

of the Consumer Product Safety Act and the FOIA.

In reaching a contrary result, the Third Circuit

relied primarily on the absence of any language in

Section 6(b) exempting from that provision disclo-

sures by the Commission pursuant to FOIA requests

(App. A, infra, 38a). The Third Circuit did not

expressly reject many of the factors mentioned by

the Second Circuit, but it instead viewed them as

insufficiently persuasive to overcome what the court

regarded as the plain meaning of the statute. We

believe that the Second Circuit has the better of the

argument. Whatever the correct resolution, however,

the conflict among the circuits and the practical im-

portance of the issue strongly suggest that this case

merits the Court’s review."

41 There is a final consideration that we believe militates

in favor of plenary review in this case. The Court has granted

certiorari in a closely related case involving the same docu-

CONCLUSION

The petition for a writ of certiorari should be

granted.

Respectfully submitted.

WabE H. McCREE, JR.

Solicitor General

ALICE DANIEL

Acting Assistant Attorney General

RICHARD A. ALLEN

Assistant to the Solicitor General

LEONARD SCHAITMAN

MARK N. MUTTERPERL

Attorneys

SEPTEMBER 1979

ments and factual background, GTE Sylvania, Inc. v. Con-

sumers Union of the United States, No. 78-1248. Although

that case, in its present posture, principally raises questions

of proper judicial administration, the underlying issue on the

merits—whether the television-related accident reports must

be disclosed under the FOIA—may ultimately have to be de-

cided in that litigation. Review of both cases would allow the

Court to dispose of most of the controversies between all of

the interested parties and would ensure that the Commission

will not be subjected to directly conflicting orders of different

circuits.

APPENDIX A

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 78-1328

GTE SYLVANIA, INCORPORATED

Vv.

CONSUMER PRODUCT SAFETY COMMISSION, RICHARD O.

SIMPSON, BARBARA FRANKLIN, LAWRENCE KUSH-

NER, CONSTANCE NEWMAN, R. DAvID PITTLE, SADYE

DUNN, VINCE DELUISE

(D.C. Civil No. 75-104)

RCA CORPORATION

Vv.

UNITED STATES CONSUMER PRopUCT SAFETY COMMIS-

SION, RICHARD O. SIMPSON, BARBARA H. FRANKLIN,

LAWRENCE M. KUSHNER, CONSTANCE E. NEWMAN,

R. DAVID PITTLE, SADYE E. DUNN

pti , and VINCE DE-

SEAR Mathai SO OP Bi he tnt

(D.C. Civil No. 75-108)

THE MAGNAVOX COMPANY

VU.

RicHarp O. SIMPSON, Chairman, Consumer Product

Safety Commission, BARBARA FRANKLIN, Commis-

sioner, Consumer Product Safety Commission,

LAWRENCE KUSHNER, Commissioner, Consumer

Product Safety Commission, CONSTANCE NEWMAN,

Commissioner, Consumer Product Safety Commis-

sion, R. DAviD PITTLE, Commissioner, Consumer

Product Safety Commission, SADYE DUNN, Secre-

tary, Consumer Product Safety Commission, and

VINCE DELUISE, Freedom Information Officer, Con-

sumer Product Safety Commission, and the CoN-

SUMER PropUCT SAFETY COMMISSION, 1750 K

Street, N.W., Washington, D.C. 20207

(D.C. Civil No. 75-112)

ZENITH RADIO CORPORATION

RICHARD O. SIMPSON, Chairman, Consumer Product

Safety Commission, BARBARA FRANKLIN, Commis-

sioner, Consumer Product Safety Commission,

LAWRENCE KUSHNER, Commissioner, Consumer

Product Safety Commission, CONSTANCE NEWMAN,

Commissioner, Consumer Product Safety: Commis-

sion, R. DAvID PITTLE, Commissioner, Consumer

Product Safety Commission, SADYE DUNN, Secre-

tary, Consumer Product Safety Commission, and

VINCE DELUISE, Freedom Information Officer, Con-

sumer Product Safety Commission, and the CON-

SUMER PRODUCT SAFETY COMMISSION

(D.C. Civil No. 75-113)

MOTOROLA, INC.

RICHARD O. SIMPSON, BARBARA FRANKLIN, LAW-

RENCE KUSHNER, CONSTANCE NEWMAN, R. DAVID

PITTLE, SADYE DUNN, VINCE DELUISE and Con-

SUMER PRODUCT SAFETY COMMISSION

(D.C. Civil No. 75-114)

WARWICK ELECTRONICS, INC.

Vv.

RICHARD O. SIMPSON, BARBARA FRANKLIN, LAW-

RENCE KUSHNER, CONSTANCE NEWMAN, R. DAVID

PITTLE, SADYE DUNN, VINCE DELUISE and Con-

SUMER PRODUCT SAFETY COMMISSION

(D.C. Civil No. 75-115)

FoRD AEROSPACE & COMMUNICATIONS CORPORATION

Vv.

RICHARD O. SIMPSON, BARBARA FRANKLIN, LAW-

RENCE KUSHNER, CONSTANCE NEWMAN, R. DAVID

PITTLE, SADYE DUNN, VINCE DELUISE and Con-

SUMER PRODUCT SAFETY COMMISSION

(D.C. Civil No. 75-116)

—— ee

ADMIRAL CORPORATION, a corporation

600 Grant Street, Pittsburgh, Pennsylvania 15219

Vv.

UNITED STATES OF AMERICA and CONSUMER PRODUCT

SAFETY COMMISSION and Individually the Members

Thereof as Individuals and as Members of the

Consumer Product Safety Commission, RICHARD

SIMPSON, Chairman, Dr. LAWRENCE KUSHNER,

Vice Chairman, BARBARA HACKMAN FRANKLIN,

Commissioner, CONSTANCE E. NEWMAN, Commis-

sioner, Dr. R. DAvID PITTLE, Commissioner, SADYE

E. DUNN, Secretary

(D.C. Civil No. 75-131)

GENERAL ELECTRIC COMPANY

RICHARD O. SIMPSON, Chairman, R. Davip PITTLE,

Commissioner, LAWRENCE M. KUSHNER, Commis-

sioner, CONSTANCE E. NEWMAN, Commissioner,

BARBARA HACKMAN FRANKLIN, Commissioner,

SADYE E. DUNN, Secretary, and CoNSUMER PRopD-

UCT SAFETY CoMMISSION

(D.C. Civil No. 75-136)

TSE + ee ee ce ~

MATSUSHITA ELECTRIC CORPORATION OF AMERICA,

a Corp. of Delaware

Vv.

CONSUMER PRODUCT SAFETY COMMISSION, SIMPSON,

RICHARD O.; FRANKLIN, BARBARA; KUSHNER, LAW-

RENCE; NEWMAN, CONSTANCE E.; PITTLE, R.

DAVID; DUNN, SADYE E.; DELUISE, VINCE

(D.C. Civil No. 75-150)

SHARP ELECTRONICS CORPORATION

UNITED STATES CONSUMER PRODUCTS SAFETY CoM-

MISSION, SIMPSON, RICHARD O.; FRANKLIN, BAR-

BARA H.,; KUSHNER, LAWRENCE M.; NEWMAN,

CONSTANCE E.; PITTLE, R. DAviID; DUNN, SADYE

E.; DELUISE, VINCE

(D.C. Civil No. 75-151)

TOSHIBA AMERICA, INC.

Vv.

CONSUMER PRODUCT SAFETY COMMISSION, SIMPSON,

RICHARD O.; FRANKLIN, BARBARA; KUSHNER, LAW-

RENCE; NEWMAN, CONSTANCE: E.; PITTLE, R.

DAVID; DUNN, SADYE E.; DELUISE, VINCE

(D.C. Civil No. 75-152)

, | Ta

CONSUMER PRoDUCTS SAFETY COMMISSION, Bernard G. Segal, Esquire

APPELLANT | Charles C. Hileman, III, Esquire

(Argued)

| Deena Jo Schneider, Esquire

ON APPEAL FROM THE UNITED STATES DISTRICT COURT Schnader, Harrison, Segal & Lewis

FOR THE DISTRICT OF DELAWARE Philadelphia, Pa. 19102

Attorneys for Appellee

RCA Corporation

Argued January 8, 1979

Robert W. Steele Esquire

Before SEITZ, Chief Judge, GIBBONS and Alan M. Grimaldi, Esquire

HIGGINBOTHAM, Circuit Judges mong ae 20006

asnin n, V.U.

(Opinion filed April 30, 1979 H. James Conaway, Jr., Esquire

Barbara Allen Babcock

Assistant Attorney General

James W. Garvin, Jr.

United States Attorney

Leonard Schaitman,

Mark N. Mutterperl,

(Argued)

Attorneys, Appellate Staff

Civil Division

Department of Justice

Washington, D.C. 20530

Attorneys for Appellant

Harry L. Shniderman, Esquire

James M. McHaney, Jr., Esquire

Covington & Burling

Washington, D.C. 20006

Attorneys for Appellees

GTE Sylvania, Incorporated and

Ford Aerospace & Communications

Corporation

Young, Conaway, Stargatt & Taylor

Wilmington, Del. 19899

Attorneys for Appellee

General Electric Company

Richard J. Abrams, Esquire

Richards, Layton & Finger

Wilmington, Del. 19899

Attorneys for Appellee

The Magnavox Company

Januar D. Bove, Jr., Esquire

Connolly, Bove & Lodge

Wilmington, Del. 19899

Attorneys for Appellee

Zenith Radio Corporation

Stephen B. Clarkson, Esquire

Sullivan, Beauregard, Clarkson,

Moss, Brown & Johnson

Washington, D.C. 20036

Attorneys for Appellees

The Magnavox Company and

Zenith Radio Corporation

Walter T. Kuhlmey, Esquire

Kirkland & Ellis

Chicago, II]..60606

Attorneys for Appellee

Motorola, Inc.

Nancy L. Buc, Esquire

Weil, Gotshal & Manges

Washington, D.C. 20086

Attorneys for Appellee

Matsushita Electric Corporation

of America

Peter Garland, Esquire

J. Portis Hicks, Esquire

Wender, Murase & White

New York, N.Y. 10022

Attorneys for Appellee

Sharp Electronics Corporation

David Fleischer, Esquire

Battle, Fowler, Jaffin,

Pierce & Kheel

New York, N.Y. 10017

Attorneys for Appellee

Toshiba America, Inc.

Charles S. Crompton, J r., Esquire

Potter, Anderson & Corroon

Wilmington, Del. 19899

Attorneys for Appellees

Motorola, ™nc., Matsushita

Electric Corporation of America,

Inc., Sharp Electronics

Corporation, and Toshiba

America, Inc.

SR ae ake eS Le

+ SS he a ee eres -

Burton Y. Weitzenfeld, Esquire

Michael A. Stiegel Esquire

Arnstein, Gluck, Weitzenfeld &

Minow

Chicago, Ill. 60606

Howard M. Berg, Esquire

Berg, Aber, Heckler & Wyatt

Wilmington, Del. 19801

Attorneys for Appellee

Warwick Electronics, Inc.

H. Woodruff Turner, Esquire

Bruce Wiegand, Esquire

Kirkpatrick, Lockhart, Johnson &

Hutchinson

Pittsburgh, Pa. 15222

Attorneys for Appellee

Admiral Corporation

Alan B. Morrison, Esquire

(Argued)

Diane B. Cohn, Esquire

Washington, D.C. 20036

Attorneys for Amici Curiae

Consumers Union of the United

States, Inc. and Public Citizen’s

Health Research Group

Charles E. Hill, Esquire

Alan R. Schwartz, Esquire

Washington, D.C. 20001

Attorneys for Amicus Curiae

Consumer Federation of America

10a

OPINION OF THE COURT

SEITZ, Chief Judge.

The Consumer Product Safety Commission (the

Commission) appeals from an order of the district

court granting the plaintiffs’ request for a permanent

injunction prohibiting the Commission’s disclosure of

certain documents obtained under its statutory infor-

mation-gathering authority. The Commission had

earlier made an administrative determination to re-

lease the documents to members of the public under

the Freedom of Information Act (FOIA),5 U.S.C.

§ 552. This appeal requires us to resolve the parties’

dispute concerning whether the Commission must

comply with the information disclosure requirements

of the Consumer Product Safety Act (CPSA) when

it receives a request for documents under the FOIA.

The plaintiffs are twelve manufacturers of tele-

vision receivers who brought seperate action against

the Commission, which were consoiidated in the Dis-

trict of Delaware, to prevent the Commission’s dis-

closure of information concerning television-related

accidents which they had submitted pursuant to spe-

cial order and subpoenas duces tecum issued by the

Commission. Amici curiae, the Consumers Union of

the United States, Inc. (Consumers Union) and the

Public Citizen’s Health Research Group (Health Re-

search Group), seek access to that information under

the FOIA and have urged this Court to vacate the

district court’s order for failure of the court and liti-

gants in this action to attempt to join them as parties

in compliance with Rule 19 of the Federal Rules of

Civil Procedure.

lla

A brief survey of the factual background of this

litigation will illuminate the issues joined by the

parties and amici. Further factual information may

be gleaned from the three published opinions of the

district court that form the backdrop to this appeal.

See GTE Sylvania Inc. v. Consumer Product Safety

Commission, 443 F.Supp. 1152 (D. Del. 1977) (grant-

ing plaintiffs’ motion for summary judgment and

entering permanent injunction against the Commis-

sion); GTE Sylvania Inc. v. Consumer Product

Safety Commission, 438 F. Supp. 208 (D. Del 1977)

(denying Commisison’s motion to transfer this action

to the District Court for the District of Columbia) ;

GTE Sylvania Inc. v. Consumer Product Safety Com-

mission, 404 F. Supp. 352 (D.Del. 1975) (granting

plaintiffs’ motion for a preliminary injunction).

Shortly after its creation in 1973, the Commission

became concerned about the safety of television sets.

That concern led to the publication, on March 22,

1974, of a notice of a proposed hearing concerning

potential hazards to the public from the operation

of television sets and a request that manufacturers

submit all reports on television-related accidents that

they had collected since 1969. 39 Fed. Reg. 10,929

(1974). Unsatisfied with the manufacturers’ re-

sponse to this request, the Commission issued special

orders on May 13, 1974, pursuant to section 27(b)

(1) of the CPSA, 15 U.S.C. § 2076(b) (1), requiring

twenty-five television manufacturers to submit the

12a

information previously requested. In the cover letter

accompanying the special orders the Commission en-

couraged compliance by stating that the information

would be received in confidence and not made avail-

able to the public, at least initially. The Commission,

noting the possibility that the submitted information

might be the object of FOIA requests, instructed the

manufacturers to identify documents claimed to be

exempt from public disclosure. Most of the manufac-

turers followed this suggestion.

Still unsatisfied with the amount of data supplied

by the manufacturers, the Commission, on July 26,

1974, issued subpoenas duces tecum to certain manu-

facturers, including all of the plaintiffs here, order-

ing each of them to furnish the Commission with

“T'V-related accident reports.” The statutory author-

ity for the issuance of such subpoenas is contained in

section 27(b) (3) of the CPSA, 15 U.S.C. § 2076(b)

(3).

The district court found, in its opinion granting

plaintiffs’ request for a preliminary injunction, that

the Commission’s definition of the data to be sub-

mitted was quite broad and was designed to include

reports of accidents received by the manufacturers

that were incomplete, unverified and even incorrect.

Moreover, the court found that the Commission had

never clearly defined a “TV-related accident,” gen-

erating confusion among the manufacturers and

causing the Commission itself to recognize that, while

some manufacturers had submitted reports pertain-

ing only to accidents caused by fire and electrical

CR GD RN te +n he od — —e

13a

shock, others iad included reports of accidents caused

by TV tube implosions, carrying handle failures, un-

stable TV stands, and so forth. Other factors which

would render the data collected by the Commission

misleading for purposes of safety comparison among

sets manufactured by different companies include the

Commission’s failure to enforce full compliance with

the subpoenas and the fact that some manufacturers

were, in the Commission’s words, “more conscientious

than others in maintaining television accident files.”

See 404 F. Supp. at 358-65.

In June, 1974, Consumers Union and the Health

Research Group sought access under the FOIA to the

accident reports submitted by the manufacturers in

response to the Commission’s special orders. The

Commission considered the requests as applicable as

well to information it later received pursuant to the

subpoenas duces tecum. The Commission informed

the manufacturers of these requests on August 2,

1974, and asked them to substantiate the claims that

they had earlier made for exemptions from public

disclosure. Meanwhile, the Commission retained a

private firm to assist in the processing, analysis and

summarization of the submitted accident reports.

The information abstracted from each report was

computerized and a computer print-out was prepared

listing each accident reported by a manufacturer and

cataloguing it by type. This print-out does not ac-

count in any way for the factors found by the district

court to render the data misleading for purposes of

comparison. A Commission consultant also prepared

14a

a report summarizing the broad outlines of the data

using industry-wide statistics. That report, unlike

the print-out, does not identify particular manufac-

turers or television models, and its disclosure was

not enjoined by the district court. See 443 F. Supp.

at 1163.

After considering the manufacturers’ claims of ex-

emption from disclosure under the FOIA, the Com-

mission decided to release to the requesters all of

the TV-related accident data it had compiled, includ-

ing the print-out, except for information identifying

accident victims by name and documents subject to

the work product doctrine and attorney-client priv-

ilege. This decision was based upon a memorandum

prepared by the Commission’s Office of General Coun-

sel, which concluded that, “The release of the acci-

dent data would assist consumers to better evaluate

the safety of TVs.” The Commission informed the

manufacturers of its final decision on April 8, 1975,

and noted that the release of the data to the public

would be accompanied by a disclaimer stating that

“the information could be misleading because some

television manufacturers maintained more complete

accident records than other manufacturers.”

The Commission’s decision to release the submitted

accident data and reports derived therefrom prompted

the plaintiffs to commence suits in various federal

judicial districts. After those actions were consoli-

dated in the District of Delaware at the Commis-

sion’s request and temporary restraining orders pro-

hibiting disclosure were consented to by the Commis-

cSaeRe,

15a

sion, the district court received briefs and heard oral

argument on plaintiffs’ request for a preliminary

injunction. The plaintiffs contended that the Com-

mission’s release of the information submitted by

them was barred by exemptions to the FOIA, by 18

U.S.C. § 1905, and by section 6 of the CPSA, 15

U.S.C. § 2055.

The district court held that it had jurisdiction over

the subject matter of this suit under 28 U.S.C.

§ 1837, and that the Commission’s decision to release

the information requested was a final administrative

determination subject to review under the Admin-

istrative Procedure Act (APA), 5 U.S.C. §§ 701-06.

404 F. Supp. at 365-67. This Court has subsequently

agreed that “the APA provides a cause of action for

enjoining an agency from disclosing submitter-

generated information.” Chrysler Corp. v. Schlesin-

ger, 565 F.2d 1172, 1190 (3d Cir. 1977) (footnote

omitted), afd in relevant part sub nom., Chrysler

Corp. v. Brown, US. . , 47 U.S.L.W.

4434, 4444 (April 18, 1979).

1 The Supreme Court’s opinion in Chrysler Corp. v. Brown

held that review of an agency decision to disclose data sub-

mitted by a private party is available under the APA, at least

where an agency disclosure decision is not “committed to

agency discretion by law” within the meaning of 5 U.S.C.

§ 701(a) (2). Just as the Court found that 18 U.S.C. § 1905

placed substantive limits on the agency action challenged

in Chrysler Corp. v. Brown, so too it is obvious that the Com-

mission’s disclosure decisions are not committed to agency

discretion by law given the limitations on disclosure contained

in section 6{b) (1) of the CPSA, 15 U.S.C. § 2055 (b) (1). See

US. at , 47 U.S.L.W. at 4444.

The Court in Chrysler Corp. v. Brown found jurisdiction

to review agency disclosure decisions under the APA under

16a

After reviewing the administrative record, the

court determined that the plaintiffs were entitled to

a preliminary injunction based, in part, on the rea-

sonable probability of success on the merits of their

claim that the Consumer Product Safety Act itself

barred the release of the requested information.

Section 6(b)(1) of the CPSA provides that the

Commission shall, 30 days prior to the public dis-

closure of information obtained under the Act iden-

tifying individual manufacturers, notify those manu-

facturers and provide them with a _ reasonable

opportunity to comment upon the information to be

disclosed. Furthermore, prior to its public disclosure

of information from which the identities of manu-

facturers may be readily ascertained, the Commission

is required to take reasonable steps to assure that

the information is accurate and that disclosure is fair

in the circumstances and reasonably related to effec-

tuating the purposes of the CPSA.

The district court rejected the Commission’s con-

tention that section 6(b)(1) does not apply to the

disclosure of information pursuant to an FOIA re-

quest, and concluded that that section specifically

exempted the requested information from disclosure

within the meaning of FOIA Exemption 8, 5 U.S.C.

§ 552(b) (3). 404 F. Supp. 369-70. Furthermore,

the court found that the Commission’s release of the

the general federal question jurisdictiontional grant in <8

U.S.C. § 1831. Id. at ——, n.47, 47 U.S.L.W. at 4444, n.47.

The district court’s determination that subject matter juris-

diction of this suit existed under 28 U.S.C. § 1337 has no

effect on this appeal.

Wedrwee. of SS Ra wince

17a

TV-related accident data would run afoul of all three

of its affirmative obligations under section 6(b) (1)

in that the Commission had not taken reasonable

Steps to assure that the information, from which the

identity of the plaintiff manufacturers could be read-

ily ascertained, was accurate, and in that disclosure

of the requested information was neither fair in the

circumstances nor reasonably related to effectuating

the purposes of the CPSA. Id. 370-73. Concluding

that the plaintiffs had also borne their burden of

proof on the other requirements for a preliminary

injunction, the district court granted the requested

relief. Id. 373-75.

In July, 1977, the plaintiffs filed motions to make

the preliminary injunction permanent. After the dis-

trict court had denied the Commission’s motion to

transfer this litigation to the District of Columbia,

where the requesters had commenced an action

against the Commission and the manufacturers seek-

ing enforcement of their FOIA request, the court

ruled on the parties’ cross-motions for summary judg-

ment. Concluding that the Commission had presented

no new facts warranting the modification of its

earlier findings, and that no changes in the law had

affected the validity of the legal reasoning in its earlier

opinion, the district court held that the TV-related

accident data, other than the consultant’s report

summarizing industry-wide statistics, was exempt

from public disclosure by reason of the Commission’s

continued failure to comply with section 6(b) (1) of

the CPSA. An order enjoining the Commission from

18a

disclosing the data to the public was entered on

December 8, 1977. See 443 F. Supp. at 1162-63.’

This appeal followed.

It was the FOIA requests of the Consumers U::ion

and the Health Research Group that prompted the

Commission’s decision to release the TV-related ac-

cident data and, in turn, triggered the manufactur-

ers’ decision to commence this litigation. However,

in none of the individual actions brought by the

manufacturers were the requesters named as parties.

Nor have the Commission and the manufacturers

made any subsequent effort to add the requesters as

parties to this lawsuit. Similarly, up until the filing

of this appeal, the requesters have made no move to

intervene in this lawsuit. Rather, they chose to file

a separate FOIA suit in the District of Columbia

on May 5, 1975, joining all of the plaintiffs in this

suit and the Commission as defendants.

The progress of the requesters’ action in the»Dis-

trict of Columbia has been tortuous. The district

court dismissed their complaint on September 12,

1975, for failure to present a case or controversy

with respect to the Commission and failure to state

a claim upon which relief could be granted against

the manufacturers. That holding was based on the

2We do not read the court’s order as enjoining the dis-

closure of TV-related accident information with respect to

which the Commission has complied with the requirements

of section 6(b) (1). However, the Commission has not argued

before this Court that it has taken, or intends to take, the

reasonable steps required by section 6(b) (1) with respect

to the material at issue.

19a

fact that the Commission was the only party which

could afford the requesters the relief they sought

under the FOIA, and that there was complete agree-

ment between the requesters and the Commission on

the central question of whether the documents at is-

sue should be released. Consumers Union of United

States, Inc. v. Consumers Product Safety Commission,

400 F. Supp. 848 (D.D.C. 1975). The Court of Ap-

peals reversed the order dismissing the requesters’

complaint on July 5, 1977, holding that the parties’

dispute over the scope and effect of the preliminary

injunction that had been entered by the district court

in this case “fully satisfie[d] the Article III case or

controversy requirement.” Consumers Union of

United States, Inc. v. Consumer Products Safety

Commission, 561 F.2d 349, 354 (D.C. Cir. 1977)

(footnote omitted). In discussing that dispute, the

Court of Appeals incorrectly assumed that the Dela-

ware litigation had run its course without a final

adjudication of the issue presented. Jd. 356. Rehear-

ing was denied in spite of the fact that the manu-

facturers later moved in this case to make the pre-

liminary injunction permanent. In a per curiam

opinion attached to the order denying rehearing the

court noted that the requesters were not parties to

the Delaware litigation and stated that because all

of the necessary parties were present before the

district court in the District of Columbia “there ap-

pears no reason why the litigation should not proceed

here, particularly since this is the venue authorized

by the FOIA.” 565 F.2d 721, 722 (D.C. Cir. 1977).

20a

While the manufacturers’ petition for a writ of

certiorari was pending the district court in Delaware

entered its order granting their request for a per-

manent injunction. The Supreme Court granted cer-

tiorari, vacated the judgment of the Court of Ap-

peals for the District of Columbia Circuit, and re-

manded the case “for further consideration in light

of the permanent injunction. .. .” GTE Sylvania,

Inc. v. Consumers Union of United States, Inc., 484

U.S. 1080 (1978). On remand, the Court of Ap-

peals held that the permanent injunction obtained

by the manufacturers in this litigation did not bar

the requesters from litigating their separate FOIA

action. Consumers Union of United States, Ine. v.

Consumer Product Safety Commission, 590 F.2d 1209

(D.C. Cir. 1978), petition for cert. filed, 47 U.S.L.W.

3557 (No. 78-1248) (Feb. 19, 1979).

Appearing as amici curiae in this appeal, the re-

questers argue that the district court erred in failing

to require the parties to this lawsuit to join them as

defendants pursuant to Rule 19 of the Federal Rules

of Civil Procedure. They ask this Court to vacate

the judgment below and direct the plaintiffs to at-

tempt to join them as parties defendant. In the event

such joinder is found to be impossible because of

inability to obtain personal jurisdiction over them

or improper venue, they ask us to direct the district

eourt to dismiss this action pursuant to Rule 19(b)

or to transfer it to the District of Columbia pursuant

to 28 U.S.C. § 1404 (a).

2la

Rule 19(a) states:

A person who is subject to service of process

and whose joinder will not deprive the court of

jurisdiction over the subject matter of the ac-

tion shall be joined as a party in the action if

(1) in his absence complete relief cannot be

accorded among those already parties, or (2)

he claims an interest relating to the subject of

the action and is so situated that the disposition

of the action in his absence may (i) as a prac-

tical matter impair or impede his ability to pro-

tect that interest or (ii) leave any of the persons

already parties subject to a substantial risk of

incurring double, multiple, or otherwise incon-

sistent obligations by reason of his claimed in-

terest....

Rule 19(b) states that when a person described in

Rule 19(a) (1) or (2) cannot be made a party to an

antion

the court shall determine whether in equity and

good conscience the action should proceed among

the parties before it, or should be dismissed, the

absent person being thus regarded as indispens-

able. The factors to be considered by the court

include: first, to what extent a judgment ren-

dered in the person’s absence might be prejudi-

cial to him or those already parties; second, the

extent to which, by protective provisions in the

judgment, by the shaping of relief, or other

measures, the prejudice can be lessened or avoid-

ed; third, whether a judgment rendered in the

person’s absence will be adequate; fourth, wheth-

er the plaintiff will have an adequate remedy if

the action is dismissed for nonjoinder.

22a

Amici’s argument in support of their contention

that the judgment obtained by the plaintiffs must be

vacated have focused, in part, on the impact of Rule

19 on “reverse-FOIA” suits generally. They ask this

Court to hold that Rule 19 requires that parties to

such suits must join known persons who have re-

quested the material at issue unless those requesters

formally notify the district court of their willingness

to permit the agency to represent their interests.

Amici support a similar rule for FOIA suits in which

the plaintiffs know of persons who have submitted

the information requested from the agency and who

would oppose its release.

The District of Columbia Circuit has suggested, in

its most recent examination of the procedural prob-

lems manifested in this litigation, that “reverse-FOIA

plaintiffs may find that, to prevent judgments in their

favor from becoming nugatory, they must join in

their lawsuits anyone whose request for information

“quickened the submitter’s controversy with the

agency—or perhaps even, by way of a defendant

class action, all those who likely may subsequently

make such requests.” Consumers Union of United

States, Inc., supra, 590 F.2d at 1220 (footnote

omitted). Moreover, the court there concluded that

the interests designed to be served by Rule 19

“surely demanded dismissal of the manufacturers’

Delaware suit, or at least an injunction shaped to im-

pact to the smallest possible extent upon the absent

requesters’ interest.” Jd. 1221.

23a

We decline the invitation to attempt at this time

to develop a set of general procedural rules govern-

ing the effect of non-joinder of requesters, whether

known or hypothetical, on a submitter’s reverse-FOIA

action.’ We do recognize, in deciding the case before

us, however, that the Supreme Court has held that

a court of appeals should, on its own initiative, take

steps to protect an absent party through considera-

tion of the Rule 19 issue, even when that issue was

not presented to the district court nor raised by the

parties to the appeal. Provident Tradesmens Bank &

Trust Co. v. Patterson, 390 U.S. 102, 111 (1968).

In addressing the issue raised by amici we will as-

sume that they are parties who, within the terms of

Rule 19(a) (2), claim an interest in the subject of

this action and who are so situated that the disposi-

tion of this action in their absence may impair or

impede their ability to protect that interest in the

District of Columbia litigation. Furthermore, it is

self-evident that the non-joinder of the requesters

has left the Commission subject to a substantial risk

of incurring inconsistent obligations with respect to

the disclosure of the TV-related accident data. None-

theless, we emphasize that the Supreme Court has

8 Congress has recognized the need to limit the amount of

litigation arising out a single FOIA request. See House Comm.

on Government Operations, Freedom of Information Act

Requests for Business Data and Reverse-FOIA Lawsuits.

H.R. Rep. No. 95-1382, 95th Cong., 2d Sess. 64-65, reprinted

in [1979] U.S. Code Cong. & Ad. News [3], [66-67] (recom-

mending amendment of the FOIA to provide rules governing

the venue of reverse-FOIA lawsuits).

—_ |

24a

made it clear that in deciding the Rule 19 issue when

first raised on appeal the reviewing court must con-

sider the fact that a judgment binding on the parties

has already been reached after extensive litigation.

See Provident Bank, supra, 390 U.S. at 109. Viewing

the interests served by Rule 19 as they apply to

this case “entirely from an appellate perspective,” id.,

we conclude that amici’s contention must be rejected.

Here, as in Provident Bank, the plaintiffs’ interest

in having a forum has been greatly enhanced by “a

strong additional interest in preserving [their] judg-

ment.” Jd. 110. Were this Court to vacate the per-

manent injunction entered by the district court solely

because of the requesters’ non-joinder, that interest

would be destroyed. Second, we may assume that

consideration of the Commission’s interest in avoiding

the possibility that the relief granted the manufac-

turers in this suit will be inconsistent with the judg-

ment eventually entered in the District of Columbia

litigation has been foreclosed by the Commission’s

failure to assert that interest in a timely fashion

during the proceedings below. Jd. Significantly, the

Commission has vigorously argued on appeal that

equity demands that amici not be permitted to over-

turn the judgment obtained in the Delaware litigation

by raising the Rule 19 issue at this late date.

Although the interest of the amici in the subject

matter of this lawsuit is clear, and their joinder as

parties in the district court would have been desir-

able, we also note that they had adequate notice of

this action prior to commencing their own lawsuit

25a

and that they could have intervened in the Delaware

litigation without significant burden. Amici concede

that their decision not to intervene was based on a

desire to present their case in a forum that was more

convenient and perceived as less hostile to their in-

terests. In Provident Bank, supra at 114, the Court

reserved decision on the question whether such a

purposeful bypass of an adequate opportunity to in-

tervene in pending litigation might estop a non-party

from relitigating an issue decided in that case. Here,

the District of Columbia Circuit has already ruled

that amici will not be so bound by the judgment in

this case. Without expressing any view as to the

merits of that holding, we conclude that the amici’s

decision to raise the Rule 19 issue in the Delaware

litigation only after the entry of a final judgment

by the district court that was adverse to their inter-

ests undermines their contention that the parties’

noncompliance with Rule 19 compels this Court to

vacate that judgment.

Finally, we must consider the interests of the judi-

cial system and the public in the complete, consistent

and efficient settlement of controversies. Although

ordinarily consideration of that factor would counsel

in favor of requiring the joinder of interested parties,

Provident Bank requires that, when viewed from an

appellate perspective, such consideration “include the

fact that the time and expense of a trial have already

been spent.” Jd. 111.

Thus, even assuming that it may have been appro-

priate for the district court to have dismissed this

26a

action or transferred it to the District of Columbia

upon consideration of the Rule 19 issue prior to its

entry of final judgment, we conclude that the inter-

ests of all the parties to this suit and the public

interest dictate that amici’s contention be rejected.

The possibility that the district court’s order might

be modified to accommodate the interests of amici,

which we may require as a condition of affirmance

under Provident Bank, supra at 112, is discussed in

Part IV.

ITI.

In reaching the merits of this appeal, we note at

the outset that the Commission does not dispute the

accuracy of the district court’s factual determina-

tions.* The court found that “the information ob-

tained from the plaintiffs which the Commission pro-

poses to release would be misleading to the consumer

who attempted to use it for evaluating the relative

safety of TV receivers manufactured by the plain-

4In Chrysler Corp. v. Brown the Supreme Court did not

reach the question whether Chrysler was entitled to a trial

de novo on its claim that the agency disclosure at issue ex-

ceeded the bounds of statutory authority. U.S. at ’

47 U.S.L.W. at 4444. In this appeal, the Commission has not

contended that the district court’s review of its determination

to release the TV-related accident data to the requesters went

beyond the administrative record, nor have the manufac-

turers contended that de novo review was appropriate. Thus,

we need express no view on the question whether Commission

decisions to disclose information under section 6(b) (1) of

the CPSA may be set aside by a reviewing court as “unwar-

ranted by the facts” after a trial de novo. See 5 U.S.C.

§ 706(2) (F).

27a

tiffs.” 404 F. Supp. at 365. The court also found

that the Commission did not take reasonable steps

to assure that the information to be disclosed was

accurate and that the release of the information

“could unjustifiably damage the manufacturers be-

cause the data does not form a reliable foundation

for safety comparison.” Jd. 372 (footnote omitted).

Moreover, at.oral argument, the Commission conceded

that it could not affirmatively release the material at

issue in the form of a press release or Commission

report because of its non-compliance with section

6(b)(1) of the CPSA. (Tr. of Oral Argument at

3-4). |

The issue raised by the Commission on appeal is

that the requirements of section 6(b)(1) are only

applicable to the “affirmative disclosure” of informa-

tion—Commission press releases, publications and the

like—and that the district court erred in finding

those requirements applicable to the Commission’s

“passive release” of information pursuant to an

FOIA request. The Commission also contends that

the district court erred in holding that section 6(b)

(1) is a statute exempting material from disclosure

within the meaning of Exemption 3 of the FOIA,

5 U.S.C. § 552(b) (3).

The Commission is supported in its legal assertions

by the Consumer Federation of America, which filed

an amicus brief with this Court. Amicus argues that

section 6(b)(1) does not meet the definition of a

withholding statute in Exemption 3 because its cri-

teria for withholding lack sufficient particularity; the

Commission argues that section 6(b)(1) is not a

28a

withholding statute because it does not by its terms

exempt materials from disclosure pursuant to the

FOIA. Thus, the Commission’s argument on the Ex-

exemption 3 issue is based solely on its interpretation

of the scope of section 6(b) (1) itself.

This Court stated in Chrysler Corp. v. Schlesinger,

supra, 565 F.2d at 1192, that in reverse FOIA cases

under the APA a reviewing court should first inquire

whether any nondisclosure statute or regulation is

applicable to the material the agency intends to re-

lease. “If so, the court must conclude that the agency

has acted outside the scope of its statutory authority

and should enjoin disclosure.” Jd. If no nondisclosure

statute is found applicable the reviewing court must

then determine whether the contested information

falls within an FOIA exemption and, if so, whether

the agency has considered the proper factors in de-

termining that disclosure was permitted, nonetheless,

under its own disclosure regulations. Jd.

Because the exemptions to the FOIA are permissive

rather than mandatory, agencies may establish more

liberal disclosure policies than the FOIA requires.

See Chrysler Corp. v. Brown, supra, — U.S. at — -

—, 47 U.S.L.W. at 4437-38. The Commission has

evidently adopted such a policy of liberal disclosure.

Of course, the Supreme Court’s decision in Chrysler

Corp. v. Brown makes it clear that such a policy

will not prevail over a specific statutory command

that the information at issue cannot be disclosed.

Thus, we first turn to the question whether section

6(b) (1) is a nondisclosure statute that is applicable

to the Commission’s proposed release of the TV-

related accident data.

SLY SES ONT pres 26S aE og ae =

29a

Section 6(b) (1) provides for a 30 day notice and

comment period prior to the Commission’s disclosure ’

of information obtained under the CPSA which iden-

tifies individual manufactures. It also provides that

the Commission shall take reasonable steps prior to

such disclosure to assure the accuracy of the informa-

tion disclosed and that disclosure is fair in the cir-

cumstances and reasonably related to effectuating the

purposes of the CPSA. If the Commission finds that

it has made public disclosure of inaccurate or mis-

leading information reflecting adversely on manufac-

turers’ products or practices, it is required to publish

a retraction in a manner similar to that in which

disclosure was made.

The FOIA, on the other hand, requires that, upon a

request for agency records, the agency shall deter-

mine within ten working days whether or not it will

comply with that request and immediately notify

the requesting party of its determination and reasons

therefor, and of his right to appeal an adverse deter-

mination to the head of the agency. If an appeal is

taken it is to be resolved by the agency within twenty

working days. In the presence of certain defined

“unusual circumstances” either of these two time

limitations may be extended for an additional ten

working days upon written notice to the requesting

party. 5 U.S.C. § 552(a)(6)(A) & (B). Once the

agency determines that it will comply with an FOIA

request, actual disclosure is to be prompt. 5 U.S.C.

§ 552(a) (6) (C).

30a

The Commission, based on its reading of section

6(b) (1) and its legislative history, and noting incon-

sistencies between the time limitations set forth in

that provision and the FOIA, has taken the position

throughout this litigation that section 6(b) (1) is in-

applicable to the release of information pursuant to

an FOIA request. That position has recently been

approved by the Court of Appeals for the Second

Circuit in Pierce & Stevens Chemical Corp. v. United

States Consumer Product Safety Commission, 585

F.2d 1382 (2d Cir. 1978). In adopting the Commis-

sion’s interpretation of section 6(b)(1) that court

noted that “[t]he questions . . . posed are not easy

to resolve,” id. 1386, but held that the language of

the CPSA, contemporaneous and subsequent legisla-

tive history, and the inconsistencies between its pro-

visions and those of the FOIA, all led to the conclu-

sion that the public disclosure requirements of the

CPSA were not meant to be applied to FOIA requests.

The Commission’s position on the issue raised in

this appeal has been set forth in proposed rules gov-

erning its implementation of section 6(b)(1). See

42 Fed. Reg. 54,304 (1977) (to be codified at 16

C.F.R. § 1018). Section 1013.2 of the proposed rules

provides that they apply to Commission “publications

and publicity pertaining to consumer products...

created or adopted by a . . . Commission officer or

employee for dissemination to the general public or

distribution to news media.” The Supplementary In-

formation accompanying the proposed rules states

that section 1013.2 “expresses the Commission’s in-

ee ee ee eee ee

ee Se en ene.

3la

terpretation that section 6(b) ... is applicable when

the [Commission] actively and publicly discloses in-

formation, but not when the [Commission] makes

a record available in response to a Freedom of In-

fo: mation Act request... .” 42 Fed. Reg. 54,305.

The Commission asks this Court to accept its inter-

pretation of section 6(b)’s scope as one reasonably

related to the purposes of the CPSA, and contends

that its interpretation is entitled to great weight as

the “contemporaneous construction of a statute by the

men charged with the responsibility of setting its

machinery in motion.” See Udall v. Tallman, 380

U.S. 1, 16 (1965). The plaintiffs counter that the

Commission’s interpretation of section 6(b) is en-

titled to no deference, characterizing it as an attempt

to influence the outcome of this litigation and noting

that it “was not sooner made than challenged.” See

Davies Warehouse Co. v. Bowles, 321 U.S. 144, 156

(1944). Recognizing that we are not here being

called upon to review a regulation that has already

been promulgated pursuant to the provisions of the

APA, we believe that the degree of deference to be

afforded the Commission’s interpretation of the stat-

ute should approximate that which would be afforded

an agency’s interpretative rule. Cf. Chrysler Corp.

v. Brown, supra, — U.S. at —, 47 U.S.L.W. at 4443

(“We need not decide whether these regulations are

properly characterized ‘interpretative rules.’ It is

enough that such regulations are not properly pro-

mulgated as substantive rules, and therefore not the

product of procedures which Congress prescribed as

32a

necessary prerequisites to giving a regulation the

binding effect of law.”’).

We note that the Supreme Court has recognized

that where such important interests as “the public’s

access to information in the Government’s files and

concerns about personal privacy and business con-

fidentiality” are in conflict, an agency may reach a

conclusion that a different accommodation of those

interests is appropriate after interested parties have

had notice and an opportunity to comment. Jd. at —,

47 U.S.L.W. at 4444. Thus, in this situation where

the procedures of the APA have not yet been com-

plied with respecting the Commission’s proposed rule,

we shall give the Commission’s interpretation such

weight as it is deserving, based on the “thoroughness

evident in its consideration, the validity of its rea-

soning, its consistency with earlier and later pro-

nouncements, and all those factors which give it

power to persuade ....” Skidmore v. Swift & Co.,

323 U.S. 184, 140 (1944). We also shall be guided

by the Supreme Court’s admonition that even the

existence of a well-reasoned prior administrative

practice of long standing does not relieve a reviewing

court of the “responsibility to determine whether that

practice is consistent with an agency’s statutory au-

thority.” Securities & Exchange Commission v. Sloan,

436 U.S. 1038, 118 (1978).

In resolving the Commission’s contention that the

district court erred in rejecting its interpretation of

33a

section 6(b)(1) we shall look first to the language

of the CPSA, then to relevant indicators of legislative

intent, and finally to the averred inconsistencies be-

tween its requirements and those of the FOIA, Sec-

tions 6(a) and (b) of the Consumer Product Safety

Act, Pub. L. No. 92-578, 86 Siat. 1212 (1972),

provide:

(a)(1) Nothing contained in this chapter

shall be deemed to require the release of any

information described by subsection (b) of sec-

tion 552 of Title 5 or which is otherwise pro-

tected by law from disclosure to the public.

(2) All information reported to or otherwise

obtained by the Commission or its representative

under this chapter which information contains

or relates to a trade secret or other matter re-

ferred to in section 1905 of Title 18 shall be

considered confidential and shall not be disclosed,

except that such information may be disclosed to

other officers or employees concerned with carry-

ing out this chapter or when relevant in any

proceeding under this chapter. Nothing in this

chapter shall authorize the withholding of infor-

mation by the Commission or any officer or em-

ployee under its control from the duly authorized

committees of the Congress.

(b)(1) Except as provided by paragraph (2)

of this subsection, not less than 30 days prior to

its public disclosure of any information obtained

under this chapter, or to be disclosed to the pub-

lic in connection therewith (unless the Commis-

sion finds out that the public health and safety

requires a lesser period of notice), the Commis-

sion shall, to the extent practicable, notify, and

84a

provide a summary of the information to, each

manufacturer or private labeler of any consumer

product to which such information pertains, if

the manner in which such consumer product is

to be designated or described in such information

will permit the public to ascertain readily the

identity of such manufacturer or private labeler,

and shall provide such manufacturer or private

labeler with a reasonable opportunity to submit

comments to the Commission in regard to such

information. The Commission shall take reason-

able steps to assure, prior to its public disclosure

thereof, that information from which the iden-

tity of such manufacturer or private labeler may

be readily ascertained is accurate, and that such

disclosure is fair in the circumstances and rea-

sonably related to effectuating the purposes of

this chapter. If the Commission finds that, in

the administration of this chapter, it has made

public disclosure of inaccurate or misleading in-

formation which reflects adversely upon the

safety of any consumer product, or the practices

of any manufacturer, private labeler, distribu-

tor, or retailer of consumer products, it shall, in

a manner similar to that in which such disclo-

sure was made, publish a retraction of such in-

accurate or misleading information.

(2) Paragraph (1) (except for the last sen-

tence thereof) shall not apply to the public dis-

closure of (A) information about any consumer

product with respect to which product the Com-

mission has filed an action under section 2061 of

this title (relating to imminently hazardous

products), or which the Commission has reason-

able cause to believe is in violation of section

35a

2068 .of this title (relating to prohibited acts),

or (B) information in the course of or concern-

ing any administrative or judicial proceeding

under this chapter.

15 U.S.C. §§ 2055 (a) & (b).

The language of section 6 reveals that the Congress

which enacted it was aware of the likelihood that the

Commission would be called upon to release docu-

ments under the FOIA which it had obtained pursuant

to its broad information-gathering authority. Thus,

section 6(a) (1) reaffirms that the Commission is not

required to release information that is within the

exemptions to the FOIA, 5 U.S.C. § 552(b). Section

6(a) (2) creates an absolute prohibition on the Com-

mission’s release, by any means, of trade secrets and

other information protected by 18 U.S.C. § 1905.

The Commission concedes that the scope of section

6(a) includes FOIA requests, but argues that section

6(b) is applicable only to the public disclosure of

information initiated by the Commission. The Second

Circuit opinion in Pierce & Stevens also adopted this

position.

Section 6(a) of the Consumer Product Safety

Act specifically incorporates the nine exemptions

of the FOIA by reference, and repeats the flat

prohibition on disclosing trade secrets and other

confidential commercial matter. We believe that

in this statute affecting only commercial enter-

prises, Congress did not intend to reduce disclo-

sure called for by the FOIA when a person re-

quests documents, but to leave that situation un-

changed. On this view, section 6(a) incorporates

36a

the FOIA exemptions with understandable em-

phasis, in this commercial setting, on absolute

protection for trade secrets and similar infor-

mation, and section 6(b)(1) provides @ unique

procedure to deal with the problem of unfairness

which may occur when a government agency

focuses adverse publicity on a particular busi-

ness enterprise.

585 F.2d at 1888. Our examination of the statute

and its legislative history will focus, then, on indicia

of congressional intent to make this distinction be-

tween the scope of sections 6(a) and 6(b).

The Commission argues, in reading section 6(b)

(1) itself, that Congress, in using the term “public

disclosure” implied that the provisions contained

therein were not designed to limit the @ommission’s

authority to simply release information to members

of the public upon request. The Second Circuit opin-

ion draws a similar inference from the language of

the section. See Pierce & Stevens, supra, 585 F.2d

at 1387. Both sections 6(a) and 6(b), however, are

included in a single provision entitled “Public dis-

closure of information.” Thus, we view the semantic

distinction as unpersuasive. Furthermore, we would

hesitate to ascribe to Congress a belief that “public

disclosure” would be plainly understood by those

called upon to interpret the CPSA as not encom-

passing disclosure to members of the public through

the FOIA.

The Commission also relies upon the retraction pro-

visions of section 6(b) (1) as textual support for its

interpretation of the section’s scope. Thus, it argues

37a

that.it makes no sense for the Commission to be re-

quired to publish a retraction of inaccurate or mis-

leading information in a manner similar to that in

which disclosure was made when the method of dis-

closure was mere compliance with an FOIA request.

The Second Circuit opinion also relied on the retrac-

tion provision as evidence that section 6(b) (1) was

directed toward agency-initiated publicity. See Pierce

c& Stevens, supra at 1387. We believe, however, that

where the Commission had released information un-

der the FOIA that it later learned was inaccurate

and which reflected adversely upon identifiable manu-

facturers it conceivably could “publish a retraction”

in a similar manner by releasing correcting infor-

mation to the same FOIA requesters who had received

the earlier inaccurate material. Thus, the retraction

provision, on its face, is not persuasive evidence of

congressional intent to limit section 6(b) (1) to dis-

closure initiated by the Commission.

In a related vein, the Commission argues that sec-

tion 6(b) (1) requires it to take reasonable steps to

assure the accuracy of information to be disclosed,

steps which might include rewriting a document,

while the FOIA does not contemplate such review and

rewriting but only the disclosure of existing docu-

ments. Accord Pierce & Stevens, supra at 1388.

However, if the specific requirements of section

6(b) (1) apply to disclosure made in compliance with

FOIA requests, the Commission may find, after tak-

ing reasonable steps to assure accuracy and fairness,

that existing documents cannot be released in any

38a

form. The appropriate posture of the Commission in

such cases would be to deny the request for the in-

accurate material. If the Commission chose, as a

matter of policy, to comply as best it was able with

such a request, section 6(b)(1) could be accom-

modated by releasing the information in an accurate

and fair form in a newly-created document. Thus,

the reasonable steps requirement of section 6(b) (1)

also does not evidence a congressional intent to limit

its scope to affirmative disclosure by the Commission.

Most significantly, from our viewpoint, section

6(b) contains specific exceptions to its requirements

in section 6(b) (2). The list of those exceptions does

not include the release of information pursuant to

the FOIA. We believe that it is reasonable to assume

that if Congress intended to make the distinction be-

tween the scope of sections 6(a) and (b) that the

Commission argues for here, it would have done so

explicitly in section 6(b) (2).

In reviewing the language of section 6(b) (1)

within the total context of the CPSA we note that

section 25(c), 15 U.S.C. § 2074(c), states that cer-

tain information generated by the Commission shall

be made available to the public subject to the re-

quirements of sections 6(a)(2) and 6(b), “but not-

withstanding” the provisions of section 6(a) (1).

Section 25(c) designates accident and investigation

reports which do not identify injured parties and

their physicians, and reports on research and demon-

stration projects as “public information,” notwith-

standing the fact that they might be exempted from

39a

disclosure underthe FOIA. But the Commission must

determine that those reports do not contain trade se-

crets protected by 18 U.S.C. § 1905 (incorporated by

reference in section 6(a)(2)) and must comply with

section 6(b) prior to making the reports public.

Thus, section 25(c) makes section 6(b) applicable

to at least some information obtained or generated

by the Commission, the disclosure of which could be

requested under the FOIA.

The only other reference to section 6(b) within the

other provisions of the CPSA is contained in section

29(e), 15 U.S.C. § 2078(e). Section 29, entitled ‘“‘Co-

operation with States and other Federai agencies,”

was amended by the Consumer Product Safety Com-

mission Improvements Act of 1976, Pub. L. No.

94-284, § 15, 90 Stat. 510, to include a new subsec-

tion governing the public disclosure of information

received from the Commission by other agencies en-

gaged in activities relating to health, safety or con-

sumer protection. New section 29(e) provides, in

pertinent part, that no such agency

may disclose to the public any information con-

tained in a report received by the agency or

authority under this subsection unless with re-

spect to such information the Commission has

complied with the applicable requirements of

section [6(b) ].

15 U.S.C. § 2078(e). On its face, section 29(e) adds

no weight to the Commission’s interpretation of the

scope of section 6(b) (1). However, in the Confer-

ence Report accompanying the Improvements Act,

the conferees stated:

40a

The requirement that the Commission comply

with section 6(b) prior to another Federal agen-

ey’s public disclosure of information obtained

under the Act is not intended by the conferees

to supersede or conflict with the requirements of

the Freedom of Information Act (5 U.S.C. 552

(a)(3) and (a)(6)). The former relates to

public disclosure initiated by the Federal agency

while the latter relates to disclosure initiated by

a specific request from a member of the public

under the Freedom of Information Act.

H.R. Conf. Rep. No. 94-1022, 94th Cong., 2d Sess.

27 [hereinafter Improvements Act Conference Re-

port], reprinted in [1976] U.S. Code Cong. & Ad.

News 1017, 1029 (emphasis supplied). Not surpris-

ingly, the Second Circuit afforded this passage some

weight in affirming the Commission’s interpretation

of the scope of section 6(b)(1). See Pierce &

Stevens, supra at 1887 & n.23. Our evaluation of

the effect of the intent of the conferees in adding

section 29(e) to the CPSA on the interpretation to

be given section 6(b) (1) is treated below.

In sum, the terms of the statute itself suggest that

Congress was aware of the interplay between the

public information provisions of the Consumer Prod-

uct Safety Act and the FOIA. Section 6, viewed as

a whole, applies to both Commission-initiatec dis-

closure and the release of information pursuant to

the FOIA. While the Commission argues that section

6(b) (1) was only meant to apply to the former

methods of disclosure, Congress did not include the

disclosure of information pursuant to an FOIA re-

4la

quest among the exceptions to the requirements of

that section. We are not persuaded that the language

of section 6(b) (1), its requirement that the Commis-

sion take reasonable steps to assure the accuracy of

disclosed information, and its retraction provisions,

rebut the resulting inference that Congress intended

section 6(b)(1) to apply to all forms of disclosure

by the Commission. To the contrary, the Congress

that enacted section 6(b)(1) also enacted section

25(c), which in our view, clearly implies that the

former provision is applicable to some types of in-

formation obtained or generated by the Commission,

whether it is to be “affirmatively released” or re-

leased to FOIA requesters. The language of the stat-

ute is, of course, not conclusive in resolving this issue.

Thus, we must turn to the Act’s legislative history,

and an analysis of subsequent legislative events cited

by the Commission, as aids to divining congressional

intent.

The origins of the provisions of section 6 of the

CPSA, as finally enacted, are traceable to H.R. 8110,

a bill introduced in the House on behalf of the Ad-

ministration. The conference committee which ap-

proved the final version of the Act noted that its

provisions governing information disclosure were

drawn from the House bill, H.R. 15003. See H.R.

Conf. Rep. No. 92-1593, 92d Cong., 2d Sess. 41

[hereinafter Conference Report], reprinted in [1972]

U.S. Code Cong. & Ad. News 4596, 4633. Section 6

of H.R. 1503, as passed by the House on Septem-

42a

ber 20, 1972, was identical in all significant respects

to section 6 as it was enacted. See 118 Cong. Rec.

31,411 (1972). Furthermore, section 6 of H.R.

15003, as passed by the House, was identical, in all

respects significant to this case, to the version of the

bill that was reported out of the House Committee

on Interstate and Foreign Commerce on June 20,

1972. See H.R. Rep. No. 92-1153, 92d Cong., 2d

Sess. 5 (1972) [hereinafter House Report]. How-

ever, the hearings before the Subcommittee on Com-

merce and Finance which preceded the full com-

mittee’s favorable report on H.R. 15003 reveal that

two significantly different versions of what eventually

became section 6 were considered by the committee.

See Consumer Product Safety Act: Hearings Before

the Subcomm. on Commerce and Finance of the

Comm. on Interstate and Foreign Commerce, 92d

Cong., Ist & 2d Sess. (1971-72) [hereinafter Swb-

committee Hearings].

The Subcommittee on Commerce and Finance con-

sidered two basic versions of proposed legislation on

consumer product safety. One version, supported by

the Administration, would have created a consumer

product safety program within the Department of

Health, Education and Welfare (HEW). The second

version, typified by H.R. 8157, introduced by Repre-

sentative Moss of California, was modeled on legisla-

tion that had been proposed by the National Com-

mission on Product Safety and recommended the cre-

ation of an independent regulatory commission hav-

ing authority in the field of consumer product safety.

Ren

48a

Although most of the debate at the hearings, and

later within committee, focused on this major dif-

ferencs between the two bills, some attention was also

focused on the differences between the provisions gov-

erning information disclosure.

The Administration bill, H.R. 8110, contained a

provision nearly identical to section 6 as it was even-

tually enacted. Section 4(c) of H.R. 8110 provides:

(1) Nothing contained in this Act shall be

deemed to require the release of any information

described by subsection (b) of section 552, title

5, United States Code, or which is otherwise pro-

tected by law from disclosure to the public. The

Secretary shall not make public information ob-

tained by him under this Act which would dis-

close trade secrets, formulas, processes, costs,

methods of doing business, or other competitive

information not otherwise available to the gen-

eral public; or the names or other means of iden-

tification of ill or injured persons without their

express written consent.

(2)(A) Except as provided by subparagraph

(B) of this paragraph, not less than thirty days

prior to his public disclosure of any information

obtained under this Act, or to be disclosed to

the public in connection therewith, the Secretary

shall provide such information to each manufac-

turer of any consumer product to which such in-

formation pertains, if the manner in which such

consumer product is to be designated or described

in such information will permit the public to

ascertain readily the identity of such manufac-

turer, and shall provide such manufacturer with

a reasonable opportunity to submit comments to

44a

the Secretary in regard to such information.

Upon the request of such manufacturer, the Sec-

retary shall publish such comments or a fair

summary thereof, or a statement of the manu-

facturer of reasonable length in lieu thereof,

concurrently and in association with the disclo-

sure of the information to which such comments

or statement appertain. The Secretary shall take

reasonable steps to assure, prior to his public

disclosure thereof, that information from which

the identity of such manufacturer may be read-

ily ascertained is accurate, and that such disclo-

sure is fair in the circumstances and reasonably

related to effectuating the purposes of this Act.

If the Secretary finds that, in the administration

of this Act, he has made public disclosure of in-

accurate or misleading information which re-

flects adversely upon the safety of any consumer

product, or the practices of any manufacturer

of, distributor of, importer of, or dealer in con-

sumer products, he shall, in a manner similar to

that in which such disclosure was made, publish

a retraction of such inaccurate or misleading in-

formation.

(B) Subparagraph (A) (except for the last

sentence thereof) shall not apply to the public

disclosure of (i) information about any consum-

er product with respect to which product the At-

torney General has filed an action (or an action

against a manufacturer thereof with respect to

such product) under section 12, or which the

Secretary has reasonable cause to believe is in

violation of section 15, or (ii) information about

any administrative or judicial proceeding under

this Act.

TS Eg A Tae

Taz

tT: oD wy Mn ange

Covet atone.

45a

Reprinted in Subcommittee Hearings, supra at 7-9.

An examination of the foregoing provision reveals

that the operative information disclosure require-

ments of H.R. 8110, absent the requirement that the

Commission publish manufacturers’ comments, were

enacted into law in section 6(b). On the other hand,

the information disclosure provisions in the Moss bill

were far less restrictive. Section 19(d) of H.R. 8157

simply provided:

When the Commission finds that publication of

any information obtained by it is in the public

interest and would not give an unfair competi-

tive advantage to any person, it is authorized

to publish such information in the form and man-

ner deemed best adapted for public use, except

that data and information which relates to a

trade secret, shall be held confidential and shall

not be disclosed, unless the Commission deter-

mines that it is necessary to carry out the pur-

poses of the Act.

Reprinted in Subcommittee Hearings, supra at 68-69.

At the opening of the hearings, Representative Moss,

Subcommittee Chairman, listed the information dis-

closure provisions of the two bills among the sig-

nificant differences to be explored by the subcom-

mittee. Moreover, in commenting upon those pro-

visions of H.R. 8110 that would later be enacted in

section 6(a)(2) of the CPSA, he stated that “I am

sure the subcommittee will want to examine carefully

this proposed change in the Freedom of Information

Act.” Id. 300.

ee ee MT Set iret ree

46a

Many of the witnesses who testified before the sub-

committee commented on the differences between the

two versions of the proposed legislation respecting

the Commission’s (or Secretary’s) authority to dis-

seminate information to the public. Contrary to the

Commission’s contention here, however, we do not

find those comments to support the view that man-

ufacturers feared the impact of adverse publicity

when generated by a government agency, to the

exclusion of a more general apprehension about the

disclosure of misleading or inaccurate information.

Thus, while the prepared statement of James F.

Young, Vice President of General Electric Company,

included an admonition that the public dissemination

of premature, inaccurate or misleading information,

“Ti]ssued under the dignity and with the apparent

imprimatur of the U.S. Government,” could have se-

rious impacts upon reputation, good will and the

product market, id. 1065, others who spoke in behalf

of H.R. 8110 favored its disclosure provisions on

more general grounds. For example, Bernard H.

Falk, President of the National Electrical Manufac-

turers Association, stated that “[n]o information

should be disclosed which is inaccurate, misleading or

incomplete.” Jd. at 1197. The prepared statement of

George P. Lamb, General Counsel for the Association

of Home Appliance Manufacturers, included this

passage:

Authority to collect and disseminate informa-

tion carries with it a responsibility not to dis-

47a

close data that may injure a company or reveal

confidential information. A statute establishing

a standards-setting agency should state explicit-

ly, as do many other federal statutes, that confi-

dential data are not to be disseminated. A stat-

ute should also assure that any information to be

made public is accurate, and that if it is deroga-

tory the company it identifies has had an oppor-

tunity to refute it. H.R. 8110 contains provi-

sions in §4(c) that would accomplish this.

Id. 1237.

Moreover, we believe that the most authoritative

reading of the intended scope of section 4(c) of the

Administration’s bill is that provided to the subcom-

mittee by HEW, the agency which drafted H.R. 8110.

In HEW’s section-by-section analysis of the bill, it

stated:

Section 4(c) would protect the Secretary’s re-

fusal to disclose information not required to be

released by the [FOIA], and would expressly

prohibit his disclosure of commercial secrets, or

of illness or injury data revealing [the] identity

of the victim.

It would also require the provision of thirty

days notice to the manufacturer of any consumer

product prior to the Secretary’s public disclosure

of information respecting that product, if such

information would reveal the manufacturer’s

identity. ...

Id. 188. Clearly, the Commission’s argument that

section 6(b)(1)’s particular requirements were in-

tended to be applicable only to Commission-initiated

information disclosure is not borne out by HEW’s

48a

analysis of section 4(c). Section 4(c), like section 6

of the CPSA as enacted, covers both the affirmative

disclosure of information to the public in the form

of press releases and the like, and the release of in-

formation under the FOIA. Yet there is no indica-

tion in the passage quoted above supporting the Com-

mission’s view that the particular requirements of

section 4(c) (2) (which was to become section 6(b)

(1)) were intended to be read as applicable only to

the former methods of information disclosure. Rather,

HEW’s analysis made no distinction between the

methods of information disclosure that were to be

covered by sections 4(c) (1) and 4(c) (2).

The Commission’s assertion that Congress intended

section 6(b) (1) to be applied only to affirmative meth-

ods of disclosure because those methods entail the

possibility of enhanced harm to manufacturers’ rep-

utations that would result from the public dissemi-

nation of adverse information carrying the imprima-

tur of government, is likewise unsupported by

committee reports and the House debates on the

CPSA. The House Committee on Interstate and

Foreign Commerce, in incorporating the provisions

of section 4(c) of the Administration bill into H.R.

15003, made no distinction between those aspects of

section 6 expressly governing FOIA requests and the

provisions of section 6(b) (1). Rather, the Committee

analyzed the information disclosure provisions of the

proposed act as follows:

If the Commission is to act responsibly and

with adequate basis, it must have complete and

49a

full access to information relevant to its statu-

tory responsibilities. Accordingly, the committee

has built into this bill broad information-gather-

ing powers. It recognizes that in so doing it has

recommended giving the Commission the means

of gaining access to a great deal of information

which would not otherwise be available to the

public or to Government. Much of this relates to

trade secrets or other sensitive cost and competi-

tive information. Accordingly, the committee

has written into section 6 of the bill detailed re-

quirements and limitations relating to the Com-

mission’s authority to disclose information which

it acquires in the conduct of its responsibilities

under this act.

Subsection (a) makes clear that nothing in

this act shall be deemed to compel the Commis-

sion to disclose information which would not

otherwise be available to the public under the

Freedom of Information Act (5 U.S.C. 552(b)).

There is one exception to this requirement. The

Freedom of Information Act would not require

a Federal agency to permit public access to in-

vestigatory files compiled for law enforcement

purposes. Section 25(c) of this bill qualifies the

Cominission’s authority to deny access to inves-

tigatory files by making accident investigations

specifically available to the public so long as they

do not identify injured parties or attending phy-

siclans (unless a release is obtained from such

persons).

Subsection (a) (2) contains an absolute pro-

hibition against the Commission’s disclosure of

trade secrets and other information referred to

in section 1905 of title 18—except to other offi-

50a

cers or employees concerned with carrying out

responsibilities under this act or when relevant

in any proceeding under this act... .

Before disseminating any information which

identifies the manufacturer. or private labeler of

a product, the Commission is directed to give the

manufacturer or private labeler 30 days in which

to comment on the proposed disclosure of infor-

mation. This procedure is intended to permit

the manufacturer or private labeler an oppor-

tunity to come forward with explanatory data or

other revelant information for the Commission’s

consideration. Theer is no intention that the

Commission be required to include a manufac-

turer’s or private labeler’s explanation in the

materials which it determines to disseminate at

the end of the 30-day period. This was suggested

to the committee and rejected.

The committee recognizes that the Commission

has a responsibility to assure that the informa-

tion which it disseminates is truthful and accu-

rate. Where it is discovered that the disclosure

of information has been inaccurate or mislead-

ing and reflects adversely on the safety of a con-

sumer product or the practices of any manufac-

turer, distributor, or retailer of the product, the

Commission is directed to publish a retraction in

a manner similar to that in which the original

disclosure was made... .

House Report, supra at 31-32. Throughout this pas-

sage the committee spoke of requirements and limita-

tions relating to the Commission’s disclosure and

dissemination of information acquired in the course

of conducting its statutory responsibilities. Some of

5la

those requirements and limitations expressly clarify

the Commission’s authority to disclose information

under the FOIA. There is no indication in the com-

mittee report that the requirement of 30 day notice

“before disseminating any information” and the re-

quirement that the information which the Commission

“disseminates is truthful and accurate” were not

also meant to apply to the “disclosure” of information

under the FOIA.

The Commission places great reliance on the de-

bates on section 6 which took place on the floor of the

House as support for its assertion that the purpose

of section 6(b)(1) was to prevent the injury to a

manufacturer’s reputation that could only arise from

adverse publicity initiated and approved by the gov-

ernment. A fair reading of those debates, however,

does not support the Commission’s contention. Rep-

resentative Moss, speaking in support of H.R. 15003,

described it as “contain[ing] careful provisions pro-

tecting against the unnecessary disclosure of trade

secrets and other confidential information,” an ele-

ment of the proposed legislation making it clear that

it “will be fair to business.” 118 Cong. Rec. 31,378

(1972). Representative Broyhill, of North Carolina,

who along with Moss ‘had served on the subcommittee

that had conducted hearings on the bill, also spoke in

its support. He stated that the bill required the Com-

mission “to notify each manufacturer of its intent

to release any information at least 30 days prior to

disclosure and after an opportunity for comment.”

118 Cong. Rec. 31,381 (1972) (emphasis supplied).

52a

These statements by the bill’s proponents certainly

do not support the Commission’s view that Congress

meant to distinguish affirmative disclosure from the

mere passive release of information pursuant to the

FOIA.

The remarks of Representative Crane of Illinois

concerning the evils of government-initiated adverse

publicity lend little credence to the Commission’s in-

terpretation. Representative Crane spoke against

the bill’s passage, stating that “the creation of a

Consumer Product Safety Commission, is an intrinsic

part of the growing attack upon private business,

and the effort to place business under the control of

a huge new Government bureaucracy.” 118 Cong.

Rec. 31,389 (1972). As an example of the injuries

that Government regulation had inflicted upon the

nation’s economy in the past he cited the financial

damage incurred by the DuPont Company when the

Federal Trade Commission publicly charged, without

basis, that the Company had engaged in false adver-

tising. The fact that Crane, an opponent of the

CPSA, saw the potential in it for similar events to

occur in the Commission’s regulation of consumer

products, in spite of the protectwe provisions of

section 6(b)(1), provides no inkling of support for

the Commission’s view that that section is limited

to the affirmative disclosure of information.

When the conference committee resolved the differ-

ences between the versions of the CPSA that had

been passed by the House and Senate, it incorporated

the House provisions respecting information dis-

53a

closure. The conferees’ description of section 6(b)

(1) is instructive in that the accuracy and fairness

requirements for “publicly disclosed information” are

mentioned in almost the same breath has the descrip-

tion of section 6(a) (1), stating that no information

need be “publicly disclosed’ by the Commission if it

is exempt from disclosure under the FOIA:

The Commission was directed to take steps to

assure that publicly disclosed information from

which specific manufacturers or distributors

could be identified was accurate and that the

disclosure was fair in the circumstances and

reasonably related to carrying out its duties. No

information would be required to be publicly dis-

closed if it is information described in section

552(b), title 5, United States Code (relating to

information whicl. is entitled to be protected

from public access under the Freedom of Infor-

mation Act), or which is otherwise protected by

law from disclosure to the public.

Conference Report, supra at 40-41, reprinted in

[1972] U.S. Code Cong. & Ad. News 4596, 4633.

We conclude that the only reasonable inference

that can be drawn from the legislative history of

section 6(b) (1) is that the members of the Adminis-

tration who introduced it, the legislators who drafted

it, reported it favorably for consideration by the

House and then spoke in favor of its enactment, and

the conferees who incorporated it into the final legis-

lative product, did not intend that its protections

from the misleading, inaccurate and unfair public

dissemination of information were to be applied only

54a

to what the Commission refers to as affirmative dis-

closures. There is not an inkling of support in the

legislative history for the distinction the Commission

has attempted to make between the scope of section

6(a) and that of section 6(b). The legislative history

of the CPSA thus reinforces the inference that we

drew from the language of the statute itself. We

turn then to the Commission’s argument that two

subsequent events have demonstrated the reasonable-

ness of its interpretation of section 6(b) (1).

The more significant of those events was the state-

ment by the conferees on the Consumer Product

Safety Commission Improvements Act of 1976 in

adopting new section 29(e) of the Act. See page 33

supra. The provisions of section 6(b) were incor-

porated by reference in section 29(e) and the con-

ferees stated that such incorporation was “not in-

tended . . . to supersede or conflict with the require-

ments of the [FOIA].” Adopting the view of section

6(b)(1) pressed by the Commission here, the con-

ferees went on to state that that section “relates to

public disclosure initiated by the Federal agency

while the [FOIA] relates to disclosure initiated by a

specific request from a member of the public... .”

Improvements Act Conference Report, supra at 27,

reprinted in [1976] U.S. Code Cong. & Ad. News

1017, 1029.

In construing the effect of the latter statement on

the statutory authority of the Commission to con-

strue section 6(b)(1) as inapplicable to the release

of information pursuant to an FOIA request we are

55a

reminded that “the views of a subsequent Congress

form a hazardous basis for inferring the intent of

an earlier one.” United States v. Price, 361 P.S. 304,

313 (1960), quoted in United States v. Philadelphia

National Bank, 374 U.S. 321, 348-49 (1963). The

Commission contends that this is an appropriate oc-

casion for the invocation of the equally venerable, if

somewhat inconsistent, maxim which holds that

“Ts]ubsequent legislation declaring the intent of an

earlier statute is entitled to great weight in statutory

construction.” Red Lion Broadcasting Co. v. Federal

Communications Commission, 395 U.S. 367, 380-81

(1969) (footnote omitted). Of course, in this case

the Commission is not relying on subsequent legisla-

tion as a declaration of Congress’s earlier intent in

enacting section 6(b)(1), but rather relies on a

statement of the conference committee which ap-

proved that legislation. Without resolving the dis-

pute as to which of the two maxims is more applicable

in such situations generally, we believe that an exami-

nation of the statement of the conference committee,

in its legislative context, reveals that it does form a

hazardous basis for construing congressional intent

in enacting section 6(b) (1).

First, we reiterate that section 29(e), by its terms,

does not interpret the scope of section 6(b). Second,

the conference committee statement was made in the

context of approving legislation that contained nu-

merous and extensive amendments to the Consumer

Product Safety Act; yet the problem before us here

was not otherwise addressed by Congress in enacting

56a.

the Improvements Act. The interpretation of section

6(b) espoused by the conferees was not mentioned

by the House committee that drafted the Improve-

ments Act. See H.R. Rep. No. 94-325, 94th Cong.,

1st Sess. 18 (1975). The Senate version of the Im-

provements Act did not contain a provision amending

section 29. Improvements Act Conference Report,

supra at 26, reprinted in [1976] U.S. Code Cong. &

Ad. News 1017, 1028. In the debates in the House

the amendment to section 29, and the relationship

between section 6(b) and the FOIA, were not men-

tioned. Nor was the conferees’ interpretation of

section 6(b) mentioned in either House when the

conference report was debated. See 122 Cong. Rec.

10,811 (House approval of the conference report) ;

id. 11,585 (Senate approval) (1976). Given our

view that the legislative history of section 6(b) (1)

itself strongly supports an inference that the Com-

mission’s interpretation of that provision conflicts

with the intent of the Congress that enacted it, we

are unwilling to accept the isolated, and in our view

erroneous, conclusion of a later congressional com-

mittee as persuasive authority to the contrary.

The Commission argues that the conference report

is certainly authoritative as to Congress’s intent with

respect to section 29(e) itself and suggests that it

would be anomalous for the provisions of section

6(b)(1) to be applicable to FOIA requests for in-

formation from the Commission itself but inapplica-

ble to FOIA requests for information that had been

obtained by other federal agencies from the Commis-~

cee bat

57a

sion. The scope of section 29(e) is not before us in

this litigation, so we need express no view as to the

validity of the conferees’ suggestion with respect to

its proper interpretation. In addressing ourselves to

the asserted anomaly, however, we note that section

25(c) of the CPSA, by its terms, applies the re-

quirements of section 6(b) (1) to FOIA requests for

accident investigation reports. It would be equally

anomalous for section 6(b) (1) to be applicable to the

release of some categories of Commission documents

requested under the FOIA but not others, when noth-

ing in the language or history of either section 6(b)

(1) or section 25(c) contemplates such a distinction.

The second item of subsequent legislative history

relied upon by the Commission is an exchange that

took place between Richard O. Simpson, Chairman of

the Commission, and Representative Moss during an

oversight hearing on regulatory reform. During that

hearing Chairman Simpson reported that the Com-

mission had adopted “an extremely liberal interpre-

tation” of the FOIA, one requiring release of all

requested material, notwithstanding the availability

of exemptions granting the Commission the discre-

tion to deny a request. He went on to note the issue

raised in this lawsuit, and stated: “The Commission

has been dealing with this problem by interpreting

section 6(b) as applying only to affirmative dis-

closures by the Commission, and the Freedom of

Information Act as applying to passive release of

information.” In response, Representative Moss re-

plied: “As the primary author of both acts, I am

58a

inclined to agree with you.” Regulatory Reform:

Hearings Before the Subcomm. on Oversight and

Investigation of the Comm. on Interstate and Foreign

Commerce, 94th Cong., 2d Sess. Vol. IV, 7-8 (1976)

[hereinafter Oversight Hearings].

It goes without saying that the views of a single

member of Congress concerning the appropriate in-

terpretation of a statutory provision passed some

years ago earlier are not dispositive. As the Su-

preme Court only recently stated in Chrysler Corp.

v. Brown, supra, — U.S. at —, 47 U.S.L.W. at 4442,

“t]he remarks of a single legislator, even the spon-

sor, are not controlling in analyzing legislative his-

tory.” And notwithstanding Representative Moss’

claimed authorship of the CPSA generally, it should

be recognized that he was not a sponsor of the bill

that provided that legislation with its provisions gov-

erning information disclosure. See pages 35-38 supra.

Moreover, Chairman Simpson submitted to the over-

sight subcommittee a proposed amendment to sec-

tion 6(b) (2) that would have added the release of

information by the Commission under the FOIA to

the list of exceptions from the requirements of sec-

tion 6(b) (1). Oversight Hearings, supra at 8. That

proposed amendment has never been reported out of

committee.

Our analysis of the language and legislative his-

tory of section 6(b)(1) leads us to eonclude that

Congress did not intend that provision to apply only

to Commission press releases, news conferences, pub-

lication of reports and other forms of “affirmative

59a

disclosure” of information obtained under the Act.

Rather, our analysis leads to the conclusion that the

information disclosure requirements of the CPSA

were meant to protect manufacturers from the harm-

ful effects of inaccurate or misleading public dis-

closure by the Commission, through any means, of

material obtained pursuant to its broad information-

gathering powers. The policies designed to be served

by section 6(b)(1) would be severely undermined,

if not eviscerated, were the Commission’s interpreta-

tion to prevail. As noted by the House Committee

which drafted section 6 of the Act, the Commission

was given broad information-gathering authority,

giving it the means of gaining access to information

not otherwise available to the public or the govern-

ment. Section 6(b)(1) was designed to insure that

the Commission’s authority to release such informa-

tion would be limited, and that its responsibility to

assure that information disseminated to the public

be both accurate and fairly presented would be

recognized.

The Commission argues that the interpretation of

section 6(b) (1) which we have reached here, at least

tentatively, renders that section inconsistent with

the scheme of the FOIA, and that to carry out the

intentions of both statutes we must adopt its inter-

pretation of section 6(b)(1). The Court of Appeals

for the Second Circuit has agreed that the adoption

of the Commission’s interpretation of section 6(b)

(1) has the salutary effect of avoiding a potential

conflict between the CPSA and the FOIA. See Pierce

60a

& Stevens, supra at 1388.e However, the Court of

Appeals reached its conclusion that such a potential

conflict exists without analyzing the effect that a

holding that section 6(b) (1) is a withholding statute

within Exemption 3 of the FOIA might have on the

apparent inconsistencies between the two statutes.

Id. 1389.

The Commission notes that the FOIA requires that

it determine within ten working days whether or not

it will comply with a request for documents within

its files, and to thereafter make prompt disclosure

to the requesting party. See 5 U.S.C. §§ 552(a)

(6)(A) & (C). It contends that compliance with

those requirements would be rendered impossible if

it must apply the requirements of section 6(b) (1)

to any request for information that would identify

an individual manufacturer. First, 30 days notice

would have to be given the manufacturer prior to

compliance with the FOIA request; second, the Com-

mission would have to take reasonable steps to assure

that the information contained in the requested docu-

ments was accurate, and that its release would be

fair and consistent with the legislative purposes of

the CPSA. The Commission argues that the long

delays that would, in all prebability, accompany com-

pliance with section 6(b) (1) would defeat the intent

of the FOIA.

This argument assumes that the Commission would

be required to comply with the time limitations of the

FOIA in spite of the independent requirements of

6la

section 6(b) (1). However, federal agencies have the

discretion to refuse FOIA requests if the requested

material falls within one of the nine statutory exem-

tions set forth in 5 U.S.C. § 552(b). Exemption 3 of

the FOIA, which the district court held was appli-

cable to the material requested here, provides that

the FOIA does not apply to matters that are

specifically exempted from disclosure by stat-

ute (other than section 552b of this title), pro-

vided that such statute (A) requires that the

matters be withheld from the public in such a

manner as to leave no discretion on the issue,

or (B) establishes particular criteria for with-

holding or refers to particular types of matters

to be withheld... .

5 U.S.C. § 552(b) (3). If the district court was cor-

rect in its conclusion that section 6(b) (1) is a with-

holding statute within Exemption 3 and that the re-

quested material was covered by that statute, then

the asserted inconsistencies between the provisions of

section 6(b)(1) and the requirements of the FOIA

may be rendered less telling. For example, if the

Commission were to receive an FOIA request for

material that it had gathered in such a fashion that

its release would be obviously unfair, or if the mate-

rial obviously portrayed a factual situation inaccu-

rately, the Commission would have no difficulty in

immediately informing the requester that the ma-

terial was exempt from disclosure under Exemption 3.

If the Commission had doubts about the accuracy

of the material requested, or the fairness of its dis-

62a

closure, and was unable to take reasonable steps to

remedy the situation within 10 working days it might

inform the requester that release of the information

would be denied pending compliance with the terms

of section 6(b)(1). In either event, the Commis-

sion’s determination that the requested material was

in fact exempted from disclosure by Exemption 3’s

incorporation of section 6(b)(1) would be subject

to timely appeal to the agency head and to the district

court. On the other hand, if the Commission deter-

mined that the material requested was accurate, and

that disclosure would be fair under the circumstances

and would effectuate the statutory purposes, it could

inform the requester that release would be forthcom-

ing pending 30 days notice to the manufacturers

identified in that material. The 30 day notice and

comment period prior to actual disclosure is not

irreconcilable with the requirement of the FOIA that

“Tujpon any determination by an agency to comply

with a request for records, the records shall be made

promptly available to such person making such re-

quest.” 5 U.S.C. §552(a)(6)(C) (emphasis

supplied).

Such inconsistencies as exist between the two stat-

utes are not unsual or uncontemplated by Congress.

By the very fact that Exemption 3 incorporates spe-

cific nondisclosure statutes into the general scheme

of the FOIA, inconsistencies will arise as agencies

attempt to comply with those specific statutes while

processing FOIA requests. Exemption 3 was de-

signed to provide the agencies with the flexibility

needed to accommodate those inconsistencies.

vial

63a

We conclude that the perceived inconsistencies be-

tween section 6(b)(1) and the FOIA will be mini-

mized if the former provision is, in fact, a withhold-

ing statute within the meaning of Exemption 8,

granting the Commission the discretion not to dis-

close material subject to its provisions. Furthermore,

if the Commission were to abuse that discretion in

a particular case, either by refusing to disclose ma-

terial not covered by section 6(b) (1) or by disclosing

material without complying with its provisions, the

injured party will have access to the courts to review

the Commission’s determination.

The district court found that section 6(b)(1), in

requiring the Commission to take reasonable steps to

assure accuracy, fairness, and the service of a stat-

utory purpose prior to disclosing information iden-

tifying individual manufacturers, established partic-

ular criteria for withholding within the meaning of

Exemption 3. See 443 F. Supp. at 1157-60. The

Commission argued that because Congress did not

intend section 6(b)(1) to apply to FOIA requests

at all, it cannot be deemed to be a statute exempting

material from disclosure under the FOIA. Our read-

ing of section 6(b) (1) and its legislative history dis-

poses of that argument. Amicus, Consumer Federa-

tion of America, argues that the requirements of

section 6(b)(1) are not framed with sufficient par-

ticularity to render it an Exemption 3 withholding

statute; the plaintiffs have argued the opposing

position.

64a

Exemption 3 was amended in 1976 by section 5(b)

of the Government in the Sunshine Act, Pub. L. No.

94-409, 90 Stat. 1247, to further define those statutes

that “specifically exempt” material from disclosure.

The Conference Report to the Sunshine Act states

that the amendment was intended “to overrule the

decision of the Supreme Court in Administrator,

FAA v Robertson, 422 U.S. 255 (1975), which dealt

with section 1104 of the Federal Aviation Act of 1958

(49 U.S.C. 1504).” H.R. Conf. Rep. No. 94-1441, —

94th Cong., 2d Sess. 25, reprinted in [1976] U.S.

Code Cong. & Ad. News 2244, 2261. In Robertson,

the Court held that a statute permitting the FAA

to withhold information from public disclosure “when,

in their judgment, a disclosure of such information

would adversely affect the interests of [an objecting

party] and is not required in the interest of the

public,” 49 U.S.C. § 1504, was an Exemption 3 with-

holding statute. The amendment to Exemption 3

was designed to eliminate from its terms those stat-

utes that granted such broad admiinstrative discre-

tion concerning the disclosure or nondisclosure of

material within the agency’s possession. Thus, the

report of the House Government Operations Commit-

tee on the Sunshine Act, recommending the legislative

overruling of Robertson, states:

Believing that the decision misconceives: the

intent of exemption (3), the committee recom-

mends that the exemption be amended to exempt

only material required to be withheld from the

public by any statute establishing particular cri-

teria or referring to particular types of infor-

65a

mation. The committee is of the opinion that

this change would eliminate the gap created in

the Freedom of Information Act by the Robert-

son case without in any way endangering stat-

utes such as the Atomic Energy Act of 1954, 42

U.S.C. §§ 2161-66, which provides explicitly for

the protection of certain nuclear data.

Under the amendment, the provision of the

Federal Aviation Act of 1958 that was the sub-

ject of Robertson, and which affords the FAA

Administrator carte blanche to withhold any in-

formation he pleases, would not come within

exemption 3....

H.R. Rep. No. 94-880 (Part I), 94th Cong., 2d

Sess. 23 reprinted in [1976] U.S. Code Cong. & Ad.

News 2183, 2205.

Several courts of appeals have had the opportunity

to construe the scope of Exemption 3 following its

amendment. The District of Columbia Circuit has

stated that “[n]ondisclosure is countenanced [by sub-

section (B) of the exemption] if, but only if, the

enactment is the product of congressional apprecia-

tion of the dangers inherent in airing particular data

and incorporates a formula whereby the administra-

tor may determine precisely whether disclosure in any

instance would pose the hazard that Congress fore-

saw.” American Jewish Congress v. Kreps, 574 F.2d

624, 628-29 (D.C. Cir. 1978) (emphasis supplied).

See Chamberlain v. Kurtz, 589 F.2d 827, 839 (5th

Cir. 1979) (Congress did not enact a provision ex-

cluding all statutes from Exemption 3 that left an

agency with any discretion over the disclosure of

66a

information; “it merely required that this discretion

be limited to certain defined matters or that it be

informed by established criteria.”’).

The Ninth Circuit has recently concluded that the

intent of the amendment to Exemption 3 was “un-

mistakably to adopt” the reasoning of a pre-Robert-

son opinion of this Court in which we held that

Exemption 3 can only be applied to statutes prescrib-

ing some standards or guides through which legisla-

tive judgment is reflected in the making of an admin-

istrative disclosure determination. Lee Pharmaceuti-

cals v. Kreps, 577 F.2d 610, 615 (9th Cir. 1978), cert.

denied, — U.S. —, 47 U.S.L.W. 3464 (1979) (citing

Stretch v. Weinberger, 495 F.2d 639 (3d Cir. 1974) ).

See also Note, Developments under the Freedom of

Information Act—1976, 1977 Duke L.J. 582, 535

(The amendment “has made clear when the FOIA

refers to information specifically exempted from dis-

closure by statute, it truly means exempted by stat-

ute, and not by an agency’s ad hoc determination that

the information released ought not be released.”’)

Our examination of the language and history of

section 6(b) (1) has revealed that Congress made a

considered judgment that the Commission was not

to release information identifying particular manu-

facturers unless it first notified those manufacturers

of its intent to do so and took reasonable steps to

satisfy itself of the accuracy and fairness of dis-

closure. We agree with the district court’s conclu-

sion that section 6(b)(1) is a statute of the kind

described by amended Exemption 3. The requirements

of that section do not afford the Commission “ ‘unfet-

67a

tered and unguided’ power . . . to withhold informa-

tion,” Lee Pharmaceuticals, supra at 615; rather non-

disclosure is authorized only when information from

which the identity of a manufacturer may be readily

ascertained and when the Commission has not taken

(or cannot take) reasonable steps to assure that dis-

closure would be accurate, fair and related to the

Act’s purposes. The standards set forth in section

6(b)(1) are sufficiently definite that they provide

a reviewing Court with criteria to measure the Com-

mission’s compliance with Congress’s intent.°

Having concluded that section 6(b) (1) is a statute

of the kind described by Exemption 3, we would or-

dinarily turn to the question whether the material at

issue is within the nondisclosure provisions contem-

plated by the statute. See National Commission on

Law Enforcement and Social Justice v. Central In-

telligence Agency, 576 F.2d 1878, 1376 (9th Cir.

1978). In this case, however, the Commission has

conceded that it cannot release the material at issue

in its present form, if we hold that it is required to

take the reasonable steps provided for in section

6(b) (1).

5Our conclusion that section 6(b)(1) is a withholding

statute within amended Exemption 8 is consistent with the

view of the only commentator to have addressed the issue.

See Note, The Effect of the 1976 Amendment to Exemption

Three of the Freedom of Information Act, 76 Column. L. Rev.

1029, 1045 n.100 (1976). Of course, implicit within the

author’s conclusion is a rejection of the Commission’s view

that section 6(b) (1) applies only to information disclosure

that it affirmatively initiates.

68a

Thus, we conclude that the material requested of

the Commission was exempt from mandatory dis-

closure under the FOIA itself. Given our conclusion

that section 6(b)(1) is an Exemption 3 withholding

statute, we find no inconsistencies between the re-

quirements of that section and the provisions of the

FOIA that would compel us to reconsider our tenta-

tive conclusion that Congress intended section 6(b)

(1) to be applied to the release of Commission docu-

ments pursuant to an FOIA request.

In our view, this case illustrates the potential for

Congress’s design to be eviscerated by the Commis-

sion’s proposed interpretation of section 6(b) (1).

Congress’s concern that manufacturers might be

harmed by the public disclosure of inaccurate and

misleading information obtained by the Commission

is implicated in this case to the same extent that it

would be implicated by a Commission press release.

The Commission obtained the material at issue, other-

wise unavailable to the public, through its informa-

tion-gathering authority under the CPSA. The Com-

mission’s methods of defining and assembling the

requested data rendered it inaccurate and would

make its publication misleading. Moreover, once the

Commission released the data to the public it would

have no control over the use to which it might be

put by the requesters.’ The circumstances of this

6 We note that in this case one of the requesters, Consumers

Union, is the publisher of the magazine Consumer Reports.

That fact makes it apparent that the disclosure of the infor-

69a

case thus reinforee our view that the Commission’s

interpretation of section 6(b)(1) is not a reasonable

one, and is, in fact, inconsistent with the avowed

intent of the Congress that enacted that provision.

We hold that the district court did not err in con-

cluding that the Commission’s determination to re-

lease the TV-related accident data without first com-

plying with the requirements of section 6(b) (1) was

beyond its statutory authority.

IV.

We indicated in Part II above that this Court

should consider whether affirmance of the district

court’s order might be conditioned upon such modifi-

cation as would accommodate the interests of the re-

questers, absent from this litigation. Having decided

that the district court’s conclusions of law were cor-

mation at issue, even absent the Commission’s imprimatur,

may have widespread adverse effects on plaintiff’s business

reputations. In a leading article on the subject of adverse

agency publicity as a method of regulatory control, and its

possible abuses, Professor Ernest Gellhorn has argued that

affirmative forms of publicity must generally be distinguished

from agency practices with respect to the FOIA. But he notes:

When media coverage closely follows agency activities,

affirmative publicity measures may be unnecessary be-

cause mere freedom of public access to information

performs the same function. . . . In such a cise, the

issues involved in the Freedom of Information 4... can-

not be disentangled from adverse publicity issuws.

Gellhorn, Adverse Publicity by Administrative Agencies, 86

Harv. L. Rev. 1380, 1422 n.164 (1978). This case is illus-

trative of the problem foreseen by Professor Gellhorn.

70a

rect, we are led to agree that the plaintiffs here are

entitled to permanent injunctive relief from the Com-

mission’s threatened disclosure of the materials at

issue. See note 2 supra. No lesser measure of relief

would serve to protect the interests at stake and vin-

dicate the plaintiffs’ legal right to have the Commis-

sion perform its statutory duties under section 6(b)

(1) of the Consumer Product Safety Act.

Thus, the judgment of the district court will be

affirmed in its entirety.

A True Copy:

Teste:

Clerk of the United States Court of

Appeals for the Third Circuit

Tla

APPENDIX B

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 78-1328

GTE SYLVANIA, INCORPORATED

Vv.

CONSUMER PRODUCT SAFETY COMMISSION, RICHARD O.

SIMPSON, BARBARA FRANKLIN, LAWRENCE KUSH-

NER, CONSTANCE NEWMAN, R. DAVID PITTLE, SADYE

DUNN, VINCE DELUISE

(D.C. Civil No. 75-104) .

RCA CORPORATION

Vv.

UNITED STATES CONSUMER PRODUCT SAFETY COMMIS-

SION, RICHARD QO. SIMPSON, BARBARA H. FRANKLIN,

LAWRENCE M. KUSHNER, CONSTANCE E. NEWMAN,

R. DAVID PITTLE, SADYE E. DUNN, and VINCE DE-

LUISE

(D.C. Civil No. 75-108)

72a

T'HE MAGNAVOX COMPANY

RICHARD O. SIMPSON, Chairman, Consumer Product

Safety Commission, BARBARA FRANKLIN, Commis-

sioner, Consumer Product Safety Commission,

LAWRENCE KUSHNER, Commissioner, Consumer

Product Safety Commission, CONSTANCE NEWMAN,

Commissioner, Consumer Product Safety Commis-

sion, R. DAvID PITTLE, Commissioner, Consumer

Product Safety Commission, SADYE DUNN, Secre-

tary, Consumer Product Safety Commission, and

VINCE DELUISE, Freedom Information Officer, Con-

sumer Product Safety Commission, and the CON-

SUMER PRODUCT SAFETY COMMISSION, 1750 K

Street, N.W., Washington, D.C. 20207

(D.C. Civil No. 75-112)

ZENITH RADIO CORPORATION

Vv.

RICHARD O. SIMPSON, Chairman, Consumer Product

Safety Commission, BARBARA FRANKLIN, Commis-

sioner, Consumer Product Safety Commission,

LAWRENCE KUSHNER, Commissioner, Consumer

Product Safety Commission, CONSTANCE NEWMAN,

Commissioner, Consumer Product Safety Commis-

sion, R. DAviD PITTLE, Commissioner, Consumer

Product Safety Commission, SADYE DUNN, Secre-

tary, Consumer Product Safety Commission, and

VINCE DELUISE, Freedom Information Officer, Con-

sumer Product Safety Commission, and the Con-

SUMER PRODUCT SAFETY COMMISSION

(D.C. Civil No. 75-113)

FoR SN RIT SOE

73a

MOTOROLA, INC.

Vv.

RICHARD O. SIMPSON, BARBARA FRANKLIN, LAW-

RENCE KUSHNER, CONSTANCE NEWMAN, R. DAVID

PITTLE, SADYE DUNN, VINCE DELUISE and CON-

SUMER PRODUCT SAFETY COMMISSION

(D.C. Civil No. 75-114)

WARWICK ELECTRONICS, INC.

Vv.

RICHARD O. SIMPSON, BARBARA FRANKLIN, LAW-

RENCE KUSHNER, CONSTANCE NEWMAN, R. DAVID

PITTLE, SADYE DUNN, VINCE DELUISE and CON-

SUMER PRODUCT SAFETY COMMISSION

(D.C. Civil No. 75-115)

ForD AEROSPACE & COMMUNICATIONS CORPORATION

RicHARD O. SIMPSON, BARBARA FRANKLIN, LAW-

RENCE KUSHNER, CONSTANCE NEWMAN, R. DAVID

PITTLE, SADYE DUNN, VINCE DELUISE and CON-

SUMER PRODUCT SAFETY COMMISSION

(D.C. Civil No. 75-116)

T4a

ADMIRAL CORPORATION, a corporation

600 Grant Street, Pittsburgh, Pennsylvania 15219

UNITED STATES OF AMERICA and CONSUMER PRODUCT

SAFETY COMMISSION and Individually the Members

Thereof as Individuals and as Members of the

Consumer Product Safety Commission, RICHARD

SIMPSON, Chairman, Dr. LAWRENCE KUSHNER,

Vice Chairman, BARBARA HACKMAN FRANKLIN,

Commissioner, CONSTANCE E. NEWMAN, Commis-

sioner, Dr. R. DAVID PITTLE, Commissioner, SADYE

E. DUNN, Secretary

(D.C. Civil No. 75-131)

GENERAL ELECTRIC COMPANY

RICHARD O. SIMPSON, Chairman, R. Davip PITTLE,

Commissioner, LAWRENCE M. KUSHNER, Commis-

sioner, CONSTANCE E. NEWMAN, Commissioner,

BARBARA HACKMAN FRANKLIN, Commissioner,

SADYE E. DUNN, Secretary, and CONSUMER PRob-

ucT SAFETY COMMISSION

(D.C. Civil No. 75-136)

75a

MATSUSHITA ELECTRIC CORPORATION OF AMERICA,

a Corp. of Delaware

Vv.

CONSUMER PRODUCT SAFETY COMMISSION, SIMPSON,

RICHARD O.; FRANKLIN, BARBARA; KUSHNER, LAW-

RENCE; NEWMAN, CONSTANCE E.; PITTLE, R.

DAVID; DUNN, SADYE E.; DELUISE, VINCE

(D.C. Civil No. 75-150)

SHARP ELECTRONICS CORPORATION

UNITED STATES CONSUMER PRODUCTS SAFETY COM-

MISSION, SIMPSON, RICHARD O.; FRANKLIN, BAR-

BARA H.,; KUSHNER, LAWRENCE M.; NEWMAN,

CONSTANCE E.; PITTLE, R. DAvID; DUNN, SADYE

E.; DELUISE, VINCE

(D.C. Civil No. 75-151)

TOSHIBA AMERICA, INC.

CONSUMER PRODUCT SAFETY COMMISSION, SIMPSON,

RICHARD O.; FRANKLIN, BARBARA; KUSHNER, LAW-

RENCE; NEWMAN, CONSTANCE E.; PITTLE, R.

DAVID; DUNN, SADYE E.; DELUISE, VINCE

(D.C. Civil No. 75-152)

76a

CONSUMER PRODUCTS SAFETY COMMISSION,

APPELLANT

ON APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF DELAWARE

Present:—SEITZ, Chief Judge, GIBBONS and

HIGGINBOTHAM, Circuit Judges

JUDGMENT

These causes came on to be heard on the records

from the United States District Court for the Dis-

trict of Delaware and were argued by counsel on

January 8, 1979.

On consideration whereof, it is now here ordered

and adjudged by this Court that the judgment of

the said District Court, filed December 8, 1977, be,

and the same is hereby affirmed in its entirety. Costs

taxed against appellant.

ATTEST:

/s/ M. Elizabeth Ferguson

Chief Deputy Clerk

April 30, 1979

77a

APPENDIX C

UNITED STATES DISTRICT COURT

D. DELAWARE

Civ. A. No. 75-104

GTE SYLVANIA INCORPORATED, PLAINTIFF

Vv.

CONSUMER PRODUCT SAFETY COMMISSION, ET AL.,

DEFENDANTS *

Dec. 8, 1977

OPINION

LATCHUM, Chief Judge.

On October 23, 1975, this Court made extensive

findings of fact and conclusions of law when it

granted plaintiffs’* motions to enjoin preliminarily

* Consolidated with the following Plaintiffs in which Con-

sumer Product Safety Commission is the Defendant; RCA

Corp., 75-108; Magnavox Co., 75-112; Zenith Radio Corp.,

75-113; Motorola, Inc., 75-114; Warwick Electronics, Inc.,

75-115; Aeronutronic Ford Corp., 75-116; Admiral Corp., 75-

131; General Electric Co., 75-136; Matsushita Electric Corp.

of America, 75-150; Sharp Electronics Corp., 75-151; and

Toshiba America, Inc., 75-152.

1 Originally there were thirteen separate actions brought

by as many television manufacturers which were consolidated

for consideration of plaintiffs’ motion for a preliminary in-

junction. Since the Court’s opinion of October 23, 1975, the

suit brought by Teledyne Mid-America Corp., C.A. No. 75-

122, has been dismissed by stipulation of the parties. Docket

Item 63 (all docket item references are to C.A. No. 75-104).

78a

the Consumer Product Safety Commission (the “Com-

mission”) from disclosing certain “TV-related ac-

cident data” submitted by the plaintiffs and a com-

puter printout summarizing that data to the public

in response te a request made under the Freedom

of Information Act (“FOIA”), 5 U.S.C. § 552. GTE

Sylvania Inc. v. Consumer Product Safety Commis-

sion, 404 F.Supp. 352 (D.Del.1975). Because the

prior opinion sets forth the factual background of

this litigation in great detail, it will not be rehearsed

here.

The Court based its decision to grant a preliminary

injunction on the Commission’s failure to comply

with Section 6(b)(1) of the Consumer Product

Safety Act (the “Act’’), 15 U.S.C. § 2055(b) (1).

Section 6(b) (1) provides in pertinent part:

The Commission shall take reasonable steps

to assure, prior to its public disclosure thereof,

[1] that information from which the identity of

such manufacturer or private labeler may be

readily ascertained is accurate, and [2] that

such disclosure is fair in the circumstances and

[3] reasonably related to effectuating the pur-

poses of [the Act].

The Court found on the uncontested facts that the

Commission had wholly failed to take reasonable

steps to assure that any of the three prerequisites

for public disclosure of the TV-related accident data

were met. 404 F.Supp. at 370-738.

The consolidated cases are presently before the

Court (1) on plaintiffs’ motion for summary judg-

79a

ment to make the preliminary injunction permanent ”

and (2) on the Commission’s motions to vacate the

outstanding preliminary injunction and for summary

judgment.*

Despite the two-year passage of time, the undis-

puted facts upon which the Court based its earlier

decision have not changed. Thus, the Court need not

reconsider any of its earlier findings and conclusions

in order to take account of any intervening changes

in the factual situation. However, the Commission

does contend that there have been intervening changes

of law which should prompt this Court to reconsider

its previous decision. To these arguments we now

turn.

I. COMMISSION’S INTERPRETATION

OF SECTION 6(b)

First, in opposing the plaintiffs’ motions for a pre-

liminary injunction, the Commission suggested that

Section 6(b)(1) applies only to affirmative dis-

closures initiated by the agency, such as press re-

leases and publications, and not to disclosures made

in response to FOIA requests.* The Court rejected

such an interpretation of Section 6(b) because it con-

travened the legislative history of the section.’ Never-

2 Docket Item 86.

3 Docket Items 79 & 80.

4 See Docket Items 35, p. 14, n.4.

5GTE Sylvania Inc. v. Consumer Product Safety Com-

mission, supra, 404 F.Supp. at 369-70.

80a

theless, the Commission has renewed the argument,

contending that two developments since the Court’s

previous decision support the Commission’s position.

The developments are: (1) the Commission formally

endorsed the interpretation of Section 6(b) (1) which

limits the section’s applicability to “affirmative” dis-

closures initiated by the agency,® and (2) Congress,

in explaining a 1976 amendment to Section 29 of

the Act (15 U.S.C. § 2078), used language which

arguably indicates acceptance of the Commission’s

interpretation. After considering both these devel-

opments, however, the Court remains convinced that

Congres did not intend to make Section 6(b) inap-

plicable in the face of an FOIA request.

The Commission, relying on three Supreme Court

cases,’ contends that its interpretation of Section

6(b) deserves great weight in this Court. Although

the cases cited establish the principle that on matters

6 The Commission recorded its interpretation of Section

6(b) as a “minute” of an executive session held on October

6, 1975 (Docket Item 80, Ex.C). Although that interpretation

preceded the decision on the preliminary injunction motion

by a few weeks, the Commission did not inform the Court of

it at that time. In addition, the Commission recently pub-

lished proposed procedures for complying with Section 6(b).

42 Fed.Reg. 54, 304 (1977) (to be codified in 16 C.F.R.

Part 1013). In the prefatory comments, the Commission re-

iterated its view that Section 6(b) applies only when it

“actively and publicly discloses information.” Jd.

7 E. I. duPont de Nemours & Co. v. Collins, 432 U.S. 46, 54,

97 S.Ct. 2229, 2234, 53 L.Ed.2d 100 (1977) ; Zemel v. Rusk,

881 U.S. 1, 11, 85 S.Ct. 1271, 14 L.Ed.2d 179 (1965) ; Udall

v. Tallman, 380 U.S. 1, 16, 85 S.Ct. 792, 18 L.Ed.2d 616

(1965).

8la

of statutory construction a court should give defer-

ence “to the interpretation given the statute by the

officers or agency charged with its administration,” ®

they do not justify the application of that principle

in this case. Two of them, Zemel v. Rusk, 381 U.S. 1,

11-12, 85 S.Ct. 1271, 14 L.Ed.2d 179 (1965) and

Udall v. Tallman, 380 U.S. 1, 16-18, 85 S.Ct. 792,

13 L.Ed.2d 616 (1965), involved long-established ad-

ministrative interpretations which the _ respective

agencies had applied consistently and frequently.’ In

sharp contrast, the interpretation being advanced by

the Commission here did not arise until after the

present controversy began. The third case cited by

the Commission, E. I. duPont de Nemours d& Co. v.

Collins, 482 U.S. 46, 54, 97 S.Ct. 2229, 2234, 53

L.Ed.2d 100 (1977), is also distinguishable. There,

the Supreme Court held that the the Fourth Cir-

cuit erred in substituting its judgment for that of

8 Udall v. Tallman, supra, 380 U.S. at 16, 85 S.Ct. at 801.

®In both cases, Congress knew about the administrative

interpretations of the statutes in question but had not

amended those statutes. The Court viewed such Congressional

inaction as indicating approval of the agency’s position. Zemel

v. Rusk, supra, 381 U.S. at 11, 85 S.Ct. 1271; Udall v. Tall-

man, supra, 380 U.S. at 17-18, 85 S.Ct. 792. It is noteworthy

that since this Court rejected the Commission’s interpreta-

tion in its prior decision, Congress has not amended Section

6(b), although that decision has been brought to Congress’

attention and other sections of the Consumer Product Safety

Act have been amended. See Consumer Product Safety Com-

mission Improvements Act of 1976, Pub.L.No. 94-284, 90

Stat. 508; for instances where representatives of the Com-

mission discussed this Court’s prior decision before Congres-

sional committees, see Docket Item 112, pp. 24-25.

82a

the Securities Exchange Commission (“SEC”) as to

the appropriate method for determining value in a

merger involving a closed end investment company.

The Court noted that the SEC had “long recognized”’

the method it used, and that it was, “as Congress

contemplated, the product of the agency’s long and

intimate familiarity with the investment company

industry.” Jd. at 55, 97 S.Ct. at 2234. This case,

on the other hand, presents a narrow legal issue

which is readily susceptible to judicial resolution and

requires no special expertise of the Commission. In

sum, because none of the factors which warrant

deference to an agency’s position exist in this case,

the Court will accord no special weight to the Com-

mission’s interpretation of Section 6(b) (1).

The second development which the Commission

contends supports its interpretation of Section 6(b)

(1) is a statement in the legislative history of a

1976 amendment to Section 29 of the Act.*° Section

29, 15 U.S.C. § 2078, concerns cooperation between

the Commission and other federal and state agencies.

The 1976 amendment authorizes the Commission to

provide nonconfidential portions of accident and in-

vestigation reports to such agencies. 15 U.S.C.

§ 2078(e). The amendment further provides:

No Federal agency or State or local agency or

authority may disclose to the public any infor-

mation contained in a report received by the

10Consumer Product Safety Commission Improvements

Act of 1976, Pub.L.No. 94-284, § 15, 90 Stat. 510 (amending

15 U.S.C. § 2078 (Supp. III 1973) ).

83a

agency or authority under this subsection unless

with respect to such information the Commission

has complied with the applicable requirements

of section [6(b) of the Act]. Id.

The explanation of the amendment to Section 29 con-

tained in the Conference Report includes the follow-

ing statement:

The requirement that the Commission comply

with section 6(b) prior to another Federal agen-

cy’s public disclosure of information obtained

under the Act is not intended by the conferees

to supersede or conflict with the requirements of

the [FOIA] (5 U.S.C. 552(a)(3 and (a) (6)).

The former relates to public disclosure initiated

by the Federal agency while the latter relates to

disclosure initiated by a specific request from a

member of the public under the [FOIA].

H.R. Rep. No. 1022, 94th Cong., 2d Sess. 27, re-

printed in [1976] U.S. Code Cong. & Admin. News

p. 1029 (emphasis supplied).

Although the statement of the Conference Com-

mittee appears consistent with the interpretation

espoused by the Commission, it does not present a re-

liable basis for inferring that four years earlier,

when Section 6(b) was enacted, Congress intended to

make it inapplicable to disclosures made in response

to FOIA requests. “[T]he views of a subsequent

Congress form a hazardous basis for inferring the

intent of an earlier one.” United States v. Price,

361 U.S. 304, 313, 80 S.Ct. 326, 3382, 4 L.Ed.2d 334

(1960), quoted in United States v. Philadelphia Na-

84a

tional Bank, 874 U.S. 821, 348-49, 83 S.Ct. 1715,

10 L.Ed.2d 915 (1963). Similarly, the impact of the

Conference Committee’s statement is diminished by

the failure of Congress to amend Section 6(b) in

1976, when it presumably knew™ of the prior de-

cision in this case, in which the Court stated:

“To argue that [Section 6(b) (1)] becomes ir-

relevant during the pendency of a FOIA demand

is to ignore a clear Congressional concern both

for the accuracy of the information disseminated

and for the damage that an identified manufac-

turer might suffer. Congress was aware that

FOIA requests for information gathered by the

Commission would be forthcoming but, neverthe-

less, imposed affirmative obligations on the Com-

mission which cannot flippantly be avoided.”

GTE Sylvania Inc. v. Consumer Product Safety

Commission, supra, 404 F.Supp. at 370 (foot-

note omitted).

Finally, by stating that they did not intend the

Section 29 requirement of compliance with Section

6(b) “to supersede or conflict with the requirements

of the [FOIA] (5 U.S.C. 552(a) (3) and (a) (6)),”

the conferees emphasized the need for some sort of

accommodation between the different time restraints

imposed by Section 6(b) and the FOIA. Notably,

the statement does not make Section 6(b) altogether

inapplicable in the face of a FOIA request, as the

Commission would do.

11 See note 9 supra.

85a

The provisions of the FOIA cited by the conferees ”

impose a duty on federal agencies to respond within

ten days in most cases, and promptly in any event,

to FOIA requests. Section 6(b) (1) provides that at

least thirty days prior to disclosing information from

which the identity of a manufacturer can be readily

ascertained the Commission must, “to the extent prac-

ticable, notify” such manufacturer and provide him

“with a reasonable opportunity to submit comments

to the Commission in regard to such information.”

15 U.S.C. § 2055(b) (1). The Commission contends

that an “impermissible conflict”? exists between the

thirty-day notice requirement of Section 6(b) and

the ten-day time limit for responses under the

FOIA.” The Court disagrees, because in 1972 when

Congress enacted the Consumer Product Safety Act,

the FOIA required only that an agency make records

“promptly available” to any person requesting them.

The ten-day requirement was not introduced until

12 Subsection (a) (3) of 5 U.S.C. § 552 provides that each

agency, upon request, shall make reasonably described records

“promptly available” to the requester. Subsection (a) (6)

requires an agency to determine within ten days (excepting

Saturdays, Sundays and legal public holidays) after the re-

ceipt of a FOIA request whether to comply with the request

and provides for a ten-day extension of that time limit in

“unusual circumstances.” Subsection (a) (6) further provides

that a requester shall be deemed to have exhausted his ad-

ministrative remedies if the agency fails to comply with the

prescribed time limits. 5 U.S.C. § 552(a) (6) (C).

18 Docket Item 81, pp. 17-19.

14 Pyub.L.No. 90-23, 81 Stat. 54 (1967) (current version at

5 U.S.C. § 552 (a) (6)).

86a

1974, when Congress amended the FOIA.” Given

that Section 6(b) has not been amended since 1972,

the differences between the time periods specified in

Section 6(b) and the FOIA cannot be used to infer a

Congressional intent to limit the application of Sec-

tion 6(b) to affirmative disclosures. Indeed, such an

interpretation completely ignores the legislative his-

tory of Section 6(b). See Pierce & Stevens Chemical

Corp. v. Consumer Product Safety Commission, 439

F.Supp. 247 (W.D.N.Y., 1977).

The Court concludes, therefore, that Section 6(b)

applies to all disclosures which are not exempted

from compliance by Section 6(b)(2), 15 U.S.C.

§ 2055 (b) (2),** and the Commission should attempt

to accommodate the time periods of both statutes to

the fullest extent practicable.” ,

15 Pub.L.No. 93-502, $1(c), 88 Stat. 1562 (1974) (codified

at 5 U.S.C. § 552 (a) (6) ).

16 The Commission contends that if Section 6(b) (1) applies

in this case, it also must apply to thousands of other records,

such as consumer complaints and petitions for rulemaking

under Section 10 of the Act, 15 U.S.C. § 2059, which are

regularly requested under the FOIA. Docket Item 81, pp. 18-

19. The Court expresses no opinion on this proposition, ex-

cept to note, without deciding, that petitions for rulemaking

under Section 10 arguably are exempt from the requirements

of Section 6(b) (1) as information concerning an administra-

tive proceeding within the meaning of Section 6(b) (2) (B).

17 Cf. Chrysler Corp. v. Schlesinger, 565 F.2d 1172, at 1193

(C.A. 3, 1977). In the Chrysler case, a government agency

notified Chrysler that it had received a request under the

FOIA for certain documents concerning one of -hrysler’s

plants. The agency’s regulations permitted a contractor to

challenge a decision to disclose such information and guar-

87a

II AMENDMENT TO FOIA EXEMPTION 3

Next, the Commission argues that the Court

should reconsider and reverse its prior holding that

Section 6(b) (1) is a withholding statute within the

meaning of Exemption 3 of the FOIA, 5 U.S.C. § 552

(b) (3), because Congress amended that exemption

in 1976 with the express intent of overruling the Su-

preme Court’s ruling in FAA v. Robertson, 422 U.S.

255, 95 S.Ct. 2140, 45 L.Ed.2d 164 (1975), upon

which this Court relied in reaching its previous de-

cision. Although the change in the law clearly neces-

sitates reconsideration of the issue, the Court cannot

agree witli the defendants’ position that Exemption 3,

as amended, does not exempt material withheld pur-

suant to Section 6(b) (1).

anteed a final decision within thirty days from the date the

challenge was filed. Jd. at 1179 n.27. Due to the ten-day

response time prescribed by the FOIA, the agency, upon

deciding to release the information, informed Chrysler that

it could nto await the results of an administrative appeal and

would release the information five working days later. Id.

at 1180. Chrysler filed in a district court to enjoin the dis-

closure and the Third Circuit held the case was ripe for

judicial review despite Chrysler’s failure to exhaust its ad-

ministrative appeal remedy. Jd. at 1192. Contrary to the

Commission’s contention (Docket Item 111, p. 5), the Court

in Chrysler did not “reject[] agency proceedings which would

conflict with the mandate of the FOIA time requirements” ;

rather, the court resolved the conflict in a manner caiculated

to give effect to the purposes of both the FOIA and the ad-

ministrative review procedures.

88a

Originally, Exemption 3 of the FOIA provided:

(b) This section does not apply to matters

that are—

+ * ok * *

(3) specifically exempted from disclosure by

statute.

5 U.S.C. § 552(b) (3) (1970) (amended 1976). Con-

gress amended this exemption in 1976 to exclude

from the mandatory disclosure provisions of the

FOIA, matters that are

(3) specifically exempted from disclosure by

statute .. ., provided that such statute (A) re-

quires that the matters, be withheld from the

public in such a manner/as to leave no discretion

on the issue, or (B) establishes particular cri-

teria for withholding/ or refers to particular

types of matters to be withheld.”

The Conference Commit which was responsible

for the language of the amenY¥ment as finally enacted,

explained the purpose of the gmendment as follows:

The conferees intend this language to overrule

the decision of the Supreme Court in Adminis-

trator, FAA v. Robertson, 422 U.S. 255, 95 S.Ct.

2140, 45 L.Ed.2d 164 (1975), which dealt with

section 1104 of the Federal Aviation Act of 1958

(49 U.S.C. 1504). Another example of a statute

whose terms do not bring it within this exemp-

18 Pyb.L.No. 94-409, §5(b), 90 Stat. 1241 (1976). The

amendment passed as a rider to the Government in the Sun-

shine Act. Note, The Effect of the 1976 Amendment to Exemp-

tion Three of the Freedom of Information Act, 76 Column.L.

Rev. 1029, 1041 n.70 (1976).

89a

tion is section 1106 of the Social Security Act

(42 U.S.C. 1306) .”

The thrust of the defendants’ argument is that Sec-

tion 6(b)(1) is indistinguishable from the statute

involved in FAA v. Robertson, supra. Because Con-

gress expressed a clear intent to exclude Sect

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