# Petition — Consumer Product Safety Comm'n v. GTE Sylvania, Inc. > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385006_1006%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1980 - **Citation:** 447 U.S. 102 ## Text Supreme Court, U. @. ey | EILED 79 rs SEP 27 1979 No. ol La icipne. goon, JR. CLERK’ rowers — ce | 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 m 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) 2 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- 3 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, 4 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 5 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- 6 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. 7 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). 9 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. 10 (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 11 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. 12 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 13 (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. 14 & 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). ae 15 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- in 16 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). 17 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- 18 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. la 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) 2a 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 Vi 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) 3a MOTOROLA, INC. 4, 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 4a 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 v. 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 ~ 5a 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 ye 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) 6 , | 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 8a 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 - 9a 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. | 4 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 = ae 29a A. 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). rT 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). B. 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. C. 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. D. 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 [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385006_1006%3A1. Public record. Not legal advice.