Docket No. 1343

FRAZEE CONSTRUCTION COMPANY

OSHRC Docket No. 1343

Occupational Safety and Health Review Commission

August 8, 1973

Before MORAN, Chairman; VAN NAMEE and CLEARY, Commissioners

OPINIONBY: MORAN

OPINION:

MORAN, CHAIRMAN: On February 1, 1973, Review Commission Judge J. Paul Brenton issued a decision vacating a citation issued by complainant against respondent under authority contained in section 9(a) of the Occupational Safety and Health Act of 1970 (29 U.S.C. 651 et seq., 84 Stat. 1590) because of complainant's refusal to disclose certain documents and memoranda prepared by complainant's chief witness and used as a basis for his testimony. Thereafter, on March 5, 1973, pursuant to section 12(j) of that Act the decision was ordered to be reviewed by the Commission.

After reviewing the record as a whole, including the brief of the respondent and complainant's petition for discretionary review, the Commission hereby affirms the decision of the Judge. Much of the discussion which follows was included in that decision.

The record discloses that complainant issued the citation to respondent on August 11, 1972, whereupon respondent duly contested the same. The issues being joined, the action subsequently went to hearing before the aforementioned Judge on December 14, 1972.

At the hearing, complainant's representative revealed during cross-examination that he had made written notes and memoranda during four inspections he had conducted of respondent's job site. He further revealed that he prepared and submitted a written report to his supervisor, the Occupational Safety and Health Area Director, but he only had a portion of the notes in his possession.

Respondent moved to see any notes, memos, statements and the like so prepared. Complainant claimed all of these terms privileged and refused disclosure.

The Judge suggested that on in camera examination of the requested documents and notes be made in order to resolve this issue. At that time counsel for complainant made no overture to cooperate in this respect.

Respondent thereupon renewed the motion and further moved that upon complainant's persistence in non-disclosure that the hearing be indefinitely recessed to enable it to petition the U.S. District Court for a disclosure order.

The Judge declined to rule on the motions at that particular stage in the hearing indicating that he would see the written matters in question and make a determination. Respondent, thereupon, continued its cross-examination under protest.

Thereafter the Judge ordered counsel to confer at the noon recess and work out the matters. Upon reconvening, however, counsel indicated an impasse.

The Judge declined once more to rule on the pending motions and respondent continued with cross-examination under protest. During this examination, it developed that the witness had in fact made and filed a written report on a form together with other memoranda and notes all having to do with his inspections and closing conference which were part of complainant's file. Respondent again requested disclosure and complainant's counsel refused. The Judge then ordered complainant's counsel to hand up the notes and memoranda made by the witness. A recess was then declared at the request of counsel to permit him to again contact his superiors to ascertain their final instructions on disclosure.

On resumption of the hearing, the Judge learned that complainant was adamant and unremitting in refusing any examination of its memoranda and notes. Whereupon, respondent moved to dismiss the complaint. The Judge then interrogated the witness at length and at its conclusion again requested permission to make an in camera inspection of the specific notes and memoranda. This request was refused once again. After further interrogation and no disclosure, respondent moved to strike the witness' entire testimony. The Judge reserved his ruling to the conclusion of the entire hearing.

Again at the conclusion of respondent's case, respondent renewed his motion to produce the notes and memoranda of complainant's inspector. When refused, respondent renewed its motion to dismiss the complaint and to strike the testimony of Mr. Hutton (the inspector) together with the exhibits he had identified. The Judge reserved his rulings thereon at that time but granted them in his decision. In the opinion of the Commission, the Judge demonstrated remarkable restraint when faced with this resistence. His disposition was proper and is hereby affirmed.

Evidentiary privileges in administrative hearings paint with a broad brush. Far too often any attempt to probe the government's case by discovery, subpoena of agency witnesses, or cross-examination is quickly met by claim that the information sought is privileged.

Privilege is vigorously asserted as an umbrella for official government information which may range from the identity of informers and internal management materials to staff studies unrelated to any litigation. An in depth exploration of all the twists and turns given administrative agency applications of this omnibus exception is beyond the scope of this decision.

Administrative agencies like the Department of Labor's Occupational Safety and Health Administration are primarily regulatory, and even though they do not impose criminal penalties, their procedures in conducting an investigation and initiating an action against a respondent are not exempt from constitutional limitations of procedural due process. In any search for justice, the obligation to produce the raw data from which a witness has testified is essential to test the accuracy of a witness' preception as well as his ability to observe; to probe his truthfulness; to question his memory and narration, to expose the basis of any opinions he has expressed; as well as to reveal any exculpatory information which may aid the cross-examiner in the presentation of his case. All privileges of exemption from this duty are exceptional.

Neither the U.S. Government nor the Department of Labor enjoys any general right to withhold information from an opposing litigant and secrecy must be predicated upon specific claim of some privilege based upon considerations peculiar to operation of government or government must conform to rules governing private parties United States v. Swift & Co., 24 F.R.D. 280 (N.D. III. 1959).

With the foregoing as an introduction the Commission will now treat each of the four gounds advanced by complainant for refusing to produce its notes and memoranda:

1. Irrelevancy.

2. Timeliness.

3. Executive Privilege.

4. Privileged as being within exception (b)(7) of the Freedom of Information Act, Title 5 U.S.C. Sec. 552.

The assertion that the information sought by respondent is irrelevant is rejected.

Evidence is relevant if it is probative which is the characteristic thing in the law of evidence. Relevancy in logic is the tendency of evidence to establish a proposition which it is offered to prove. Relevancy, as employed by judges and lawyers, however, is the tendency of the evidence to establish a material proposition. Relevancy and materiality are often used interchangeably, but materiality actually goes to the relation between the proposition for which it is offered and the issues in the case, and therefore is mainly a matter of substantive law and pleading rules. On the other hand relevancy goes to the probative quality of the evidence as the test.

Therefore, all evidence not privileged, which can conceivably throw any light upon the controversy should be made available. Most assuredly the notes, memoranda and documents which complainant has suppressed is the foundation upon which this alleged violation has been predicated. It clearly has probative value and is therefore relevant.

Complainant's second ground is rejected as being argumentative and not well founded. The request to reveal the memoranda was made immediately upon the discovery of its existence. It was not untimely.

The executive privilege asserted here apparently has constitutional overtones. It is contended that the executive has inherent power by virtue of the constitutional system of separation of powers to claim an absolute privilege to withhold any information that he deems confidential.

Complainant cites no authority to establish the privilege as an absolute one. The recent decisions of the courts seem to be recognizing a qualified executive privilege which in fact is a discretionary one. This imposes a duty upon the Judge to determine whether the litigants need for the information seems to outweigh the government's interest in secrecy as to its consultative functions Olson Rug Co. v. NLRB, 291 F. 2d 655 (7th Cir. 1961).

Upon a formal claim of privilege by the executive the determination whether to allow it is then for the court. Even though every reasonable effort should be made by the parties, the court, and the head of the executive department involved to avoid a conflict, ultimately the court, and not the executive officer, is to determine the validity of a claim of privilege to documents Overby v. United States Fidelity and Guaranty Co. 224 F. 2d 158 (5th Cir. 1955) Sperandeo ex rel. NLRB v. Milk Drivers Local 537, 334 F. 2d 381 (10th Cir. 1964).

In appropriate cases the court may make an in camera examination to help it in resolving the claim Machin v. Zuckert, 316 F. 2d 336 (D.C. Cir. 1963), cert. denied, 375 U.S. 896 (1963).

This action is in the nature of a prosecution and complainant is the moving party thereby incurring the duty to see that justice is done. It is therefore unconscionable to allow the prosecution to deprive the respondent of anything which might be material to its defense. The Judge acted properly in suggesting an in camera inspection to determine whether the notes and memoranda so qualified.

Complainant made the decision that the documents were privileged and repeatedly refused to afford an in camera examination. Such conduct is an usurpation of power he does not possess. Mitchell v. Bass, 252 F. 2d 513 (8th Cir. 1958).

The notes and memoranda made and compiled during the inspections and closing conference are not subject to executive privilege unless in camera inspection should reveal some portion thereof to the contrary.

Complainant failed to make out a case of executive privilege and therefore that ground must be rejected.

The fourth ground for claiming privilege is also rejected.

Investigatory files compiled for law enforcement purposes may well be privileged prior to trial under the exemptive provision of the Freedom of Information Act. The purpose of the exception is to prevent premature discovery by defendant in enforcement proceeding Wellford v. Hardin, 315 F. Supp. 175 (D.C. Md. 1970); Cooney v. Sun Shipbuilding & Drydock Co., 288 F. Supp. 708 (E.D. Pa. 1968).

Nevertheless, with the adoption of this Act freedom of information is now the rule and secrecy is the exception. Wellford v. Hardin, supra. Furthermore balance of equities in determining whether disclosure is in order is presumptively on the side of disclosure Consumers Union of United States, Inc. v. Veterans Administration, 301 F. Supp. 796 (S.D.N.Y. 1969).

It is significant to note that at least one Federal court has held that documents which were prepared by inspectors employed by the Secretary of Labor and other officials in connection with their inspection of plants subject to Walsh-Healey Public Contracts Act were subject to disclosure under the Freedom of Information Act Wecksler v. Shultz, 324 F. Supp. 1084 (D.C. Cir. 1971).

Furthermore, it appears to be well settled that a bare claim of confidentiality will not immunize files of a governmental agency from scrutiny; rather the court has the responsibility of determining the validity and extent of the claim after careful consideration of the particular documents in question, and of insuring that the exemption is strictly construed. Also, where portions of document requested under the Act are protected against disclosure as "privileged or confidential," identifying details or secret matters can be deleted to render the material subject to disclosure Bristol-Myers Co. v. F.T.C. 424 F. 2d 935 (D.C. Cir. 1970), cert. denied, 400 U.S. 824 (1970).

The Freedom of Information Act is an amendment to the Administrative Procedure Act but it is directed toward availability of information for the public in general and the news media in particular. Any person is eligible to proceed under the Act; no standing or showing of need for the desired information is exacted. As a result there is no merit in the contention that the exemptions warrant withholding information from a litigant with a genuine need for it in litigation.

Furthermore the Act, in excepting certain matters from its disclosure provisions, does not purport to make them privileged in the evidentiary sense.

Accordingly, the government cannot use the Freedom of Information Act as a shield to prevent disclosure under the facts and circumstances presented in this case.

It is fairly well established that a privilege and rule of exclusion should apply in the case of writings and informations constituting military or diplomatic secrets of state or where the public interest would otherwise be endangered. In this cause the government has not fashioned such claims nor is it likely that it could.

It is well to note that the Freedom of Information Act makes no distinction as to the availability of government information where the litigation is between parties other than the government and those where the government is a party. But when the government is a party, it is in court as a litigant, with important consequences.

Generally, then, it appears that when the government invokes the jurisdiction and aid of the court, executive immunity is waived. The government cannot as litigant in the prosecution of a criminal case suppress documents, where the prosecution is founded on those very dealings to which the documents relate United States v. Andolschek, 142 F. 2d 503 (2d Cir. 1944); United States v. Grayson, 166 F. 2d 863 (2d Cir. 1958); see also Reynolds v. United States, 345 U.S. 1 (1953). Nor may it proceed affirmatively against a respondent in a civil case while at the same time seeking under the guise of privilege to suppress evidence useful to the defense of the action United States v. Cotton Valley Operators Committee, 9 F.R.D. 719 (W.D. La. 1949) aff'd 339 U.S. 940 (1950). The Supreme Court said in United States v. Proctor & Gamble Co., 356 U.S. 677 (1958): "The Government as a litigant is, of course, subject to the rules of discovery."

Although cross-examination sometimes does no more than demonstrate forensic talent or score trial points irrelevant to the final decision, in this cause it struck at the very vitals of the complainant's case. It was employed quite properly as a means of getting at the truth. The action of complainant's counsel in refusing to disclose the memoranda in its possession frustrated this search for truth.

In administrative hearings exculpatory information in an agency's possession or file data which may aid respondent's presentation of his case must be disclosed by the agency Sperandeo ex rel. NLRB v. Milk Drivers Local 537, supra; NLRB v. Capitol Fish Co., 294 F. 2d 868 (5th Cir. 1961); Giles v. Maryland, 386 U.S. 66 (1967); Miller v. Pate, 386 U.S. 1 (1967); U.S. v. Bryant, 439 F. 2d 642 (D.C. Cir. 1971). The alternative is to drop the prosecution against the respondent. Anything less would violate the commands of procedural due process which every adjudication must observe FCC v. Pottsville Broadcasting Co., 309 U.S. 134 (1940).

The burden of proof of the facts of privilege is on the asserter of the privilege Phelps Dodge Corp. v. Guerrers, 273 F. 415 (9th Cir. 1921). Complainant was given ample opportunity to explain the nature of the confidentiality of his file data. He stated only that his was an investigatory file and he concluded thereupon that all therein is statutorily exempt. In a word, during trial where the executive is the party prosecuting, it is not enough to decline to produce written notes and memoranda simply because he does not want to have the documents produced.

In the Jenks case the Supreme Court laid down the proposition that reports of undercover agents who were government witnesses, could not be suppressed and further that it was not necessary that the defendant show that the reports were inconsistent with the witnesses' testimony, so long as they are shown to relate to the same subject Jenks v. United States, 353 U.S. 657 (1957).

In his decision, the Judge in this case called attention to the Latin maxim, "Salus Populi Suprema Lex" ("The People's Safety Is The Highest Law"). Although originally pronounced under different circumstances and in a different social context, it is appropos to this Act and this case particularly since it is based upon the alleged willful violation of a particular occupational safety and health standard. We are faced with the question whether the public interest in the purpose and policy of the Act overrides the constitutional requirements of procedural due process in the context in which this issue was raised during the trial of this cause.

A reading of the transcript of the hearing demonstrates the magnitude of the Judge's effort to bring about the discovery of information to which the respondent was entitled.

Counsel for complainant was ordered to hand up the notes, memoranda and report made by complainant's witness. He declined. At several stages during the hearing the Judge was denied permission by complainant to make an in camera examination of the pertinent file data. There is no justification whatsoever for complainant's refusal to permit this inspection.

This Commission is led inescapably to the conclusion that complainant's actions and conduct during the trial of this case has denied respondent a fair and impartial trial. The constitutional requirements of due process of law must be observed in hearings conducted pursuant to this Act. Those requirements cannot be diluted by complainant's whimsical, capricious or arbitrary conduct.

The Commission affirms the decision of the Judge vacating the citation issued by complainant. We do so with full awareness that after complainant received the Judge's decision, he changed his position on withholding the notes and memoranda. We choose to base our decision on the record in this case which fully justifies this disposition.

CONCURBY: VAN NAMEE

CONCUR:

VAN NAMEE, COMMISSIONER, concurring: I concur in the disposition of this case. Complainant refused to produce notes and a report prepared by his witness. The witness was on the stand at the time of refusal, and the documents were requested for the purpose of cross examination. I concur in my colleagues views concerning Complainant's assertion that the documents were privileged, irrelevant, and I concur in his views concerning the assertion of timeliness.

As for the fourth assertion, i.e., the documents are not discloseable because they are investigatory files within the meaning of 5 U.S.C. 552(b)(7), I agree that Complainant's position was not well taken. As I understand it, the exemption applies so long as law enforcement proceedings have not been commenced. The purpose is to prevent premature discovery of investigatory files. See Wellford v. Hardin, 444 F. 2d 21 (4th Cir. 1971). However, once proceedings have commenced the exemption does not apply insofar as a party litigant is concerned. See Hodgson v. General Motors Acceptance Corporation, 54 F.R.D. 445 (S.D. Fla. 1972).

I concur in the disposition for the reason that it does not appear that the interests of Justice would be served in this case by a remand order.

[The Judge's decision referred to herein follows]

BRENTON, JUDGE, OSAHRC: This is a proceeding pursuant to Section 10 of the Occupational Safety and Health Act of 1970 (29 U.S.C. 651 et seq., hereafter called the Act) contesting a Citation issued by the Complainant against the Respondent under the authority vested in Complainant by Section 9(a) of that Act.

The Citation alleges that as the result of the inspection of a workplace under the ownership, operation or control of the Respondent, located at Colorado Springs, Colorado and described as follows:

An excavation contractor the Respondent has violated Section 5(a)(2) of the Act by failing to comply with certain Occupational Safety and Health Standards promulgated by the Secretary of Labor pursuant to Section 6 thereof.

The Citation, which was issued on August 11, 1972, alleges that the violation results from a failure to comply with a standard promulgated by the Secretary by publication in the Federal Register on February 17, 1972 (37 F.R. 3512), and codified in 29 CFR Part 1926.

The description of the alleged violation contained on said Citation is as follows:

The employer willfully violated 29 CFR Part 1926.652(a)(b) in that he failed to shore, sheet, brace, slope to the proper angle of repose, or otherwise support by means of sufficient strength the size of a trench in which employees were working located about 120 yards west of the north terminus of Del Paz Drive, Colorado Springs, Colorado.

The standard as promulgated by the Secretary provides as follows:

Section 1926.652 specific trenching requirements.

(a) Banks more than 5 feet high shall be shored, laid back to a stable slope, or some other equivalent means of protection shall be provided where employees may be exposed to moving ground or cave-ins. Refer to table P-1 as a guide in sloping of banks. Trenches less than 5 feet in depth shall also be effectively protected when examination of the ground indicates hazardous ground movement may be expected.

(b) Sites of trenches in unstable or soft material, five feet or more in depth, shall be shored, sheeted, braced, sloped, or otherwise supported by means of sufficient strength to protect the employees working within them. See tables P-1, P-2 (following paragraph (g) of this section).

Pursuant to the enforcement procedure set forth in Section 10(a) of the Act, the Respondent was notified by letter dated August 11, 1972, from J. J. Williams, Area Director of the 0600 Area, Occupational Safety and Health Administration, U.S. Department of Labor proposed to assess a penalty for the violation alleged in the amount of $9,000.00.

After Respondent contested this enforcement action, and a Complaint and an Answer had been filed by the parties, the case came on for hearing at Colorado Springs, Colorado on December 14, 1972.

This cause was tried by able Counsel for the parties. It is now before this Judge for determination upon the pleadings, the record, the evidence, transcript of testimony, briefs and arguments of Counsel and the several motions urged by Counsel for Respondent during the course of the trial and reiterated at the conclusion of all the testimony.

In framing the issues by the pleadings Respondent denied that it was engaged in a business affecting interstate commerce. In its supplemental pre-hearing statement filed with this Judge before trial it amended paragraphs I(3) and I(4) of its answer admitting that it was so engaged. This Judge grants and approves this amendment nunc pro tunc, December 13, 1972. Jurisdiction was and is thereby eliminated as an issue and thereupon this Judge finds that jurisdiction in the Review Commission of this cause is conclusive.

No affected employee of Respondent, whether represented or otherwise claimed party status prior to the commencement of the hearing in this cause, although they were served with the several notices as required by the provisions of Review Commission Rule 7.

Before undertaking consideration of the evidence presented on the merits and the law pertaining thereto it is incumbent upon this Judge to adjudicate definitively the several motions presented by the Respondent during trial.

Upon cross examination of the Secretary's Compliance Officer by Respondent it was revealed that at the time of his four separate inspections of the job site and his closing conference he made written notes and memorandums. Further, that he had prepared and submitted a written report to his Area Director, but only had a portion of his notes in his immediate possession.

Whereupon Respondent moved to see any notes, memos, statements and the like so prepared (Tr. 48). The Secretary claimed all these items privileged and refused disclosure (Tr. 48).

This Judge suggested that an in camera examination of the requested documents and notes be made in order to resolve this troubling issue (Tr. 48). At that time Counsel for the Secretary made no overture to cooperate in this respect.

Respondent thereupon renewed the motion and further moved that upon the Secretary's persistence in non-disclosure that the hearing be indefinitely recessed to enable it to petition the U.S. District Court for a disclosure order (Tr. 50-51).

This Judge declined to rule on the motions at this particular stage in the hearing indicating that he would see the written matters in question and make a determination. Respondent continued its cross examination under protest.

Thereafter this Judge ordered Counsel to confer at the noon recess and work out the matters to avoid involving this Judge or the District Court (Tr. 72).

Upon reconvening counsel indicated an impasse and the Secretary bottomed his case for refusal upon four grounds, namely:

1. Irrelevancy.

2. Timeliness.

3. Executive privilege.

4. Privileged as being within exception (b)(7) of the Freedom of Information Act, Title 5 U.S.C.A. Sec. 552 (Tr. 74, 75, 76).

Again this Judge declined to rule on the pending motions and Respondent continued with cross-examination under protest. During this examination it developed that the witness had in fact made and filed a written report on a form together with other memorandum and notes all having to do with his inspections and closing conference which were part of the Secretary's file. Respondent again requested disclosure and counsel for the Secretary refused. This Judge then ordered Counsel for the Secretary to hand up the notes and memorandum made by the witness. Whereupon a recess was declared at the request of this Counsel to permit him to again contact his superiors to ascertain their final instructions on disclosure (Tr. 89-93).

On resumption of the hearing this Judge learned that the Secretary was adamant and unremitting. Whereupon Respondent moved to dismiss the Complaint (Tr. 93, 84). Thereupon this Judge interrogated the witness at length and at its conclusion again requested counsel for the Secretary permission to make an in camera inspection of the specific notes and memorandum which was refused. After further interrogation and no disclosure Respondent moved to strike the witness' entire testimony. This Judge reserved his ruling to the conclusion of the entire hearing (Tr. 94-100).

Again at the conclusion of Respondents case, Respondent renewed his motion to produce the notes and memorandum of the Compliance Officer. They were not forthcoming from the government and Respondent renewed his motion to dismiss the Complaint and motion to strike the testimony of Mr. Hutton (the Compliance Officer) together with the exhibits he had identified. This Judge reserved his rulings thereon to his final decision (Tr. 302).

III

Evidentiary privileges in administrative hearings paint with a broad brush. Research discloses that any attempt to probe the government's case by discovery, subpoena of agency witnesses, or cross-examination is quickly met by claims that the information sought is privileged.

Administrative agencies are primarily regulatory, and even though they do not as a rule impose criminal penalties, their adjudicative procedures are not exempt from constitutional limitations of procedural due process. In any search for justice the obligation to produce the raw data concerning which a witness has testified is essential to test the accuracy of a witness' preception as well as his ability to observe; to probe his truthfulness; to question his memory and narration, to expose the basis of any opinions he has expressed; and so as to reveal any exculpatory information which may aid the cross-examiner in the presentation of his case. All privileges of exemption from this duty are exceptional.

The United States enjoys no general right to withhold information from an opposing litigant and secrecy must be predicated upon specific claim of some privilege based upon considerations peculiar to operation of government or government must conform to rules governing private parties U.S. v. Swift & Company 24 F.R.D. 280.

The assertion by the Secretary that the information sought by Respondent is irrelevant is rejected.

He has raised questions of relevancy in the broad sense which, of course, affords insulation against forcing truly unwarranted disclosure General Services Administration v. Benson, 415 F. 2d 878.

Evidence is relevant if it is really probative which is the characteristic thing in the law of evidence. Relevancy in logic is the tendency of evidence to establish a proposition which it is offered to prove. Relevancy, as employed by judges and lawyers, however, is the tendency of the evidence to establish a material proposition. Relevancy and materiality are often used interchangeably, but materiality actually looks to the relation between the proposition for which it is offered and the issues in the case, and therefore is mainly a matter of substantive law and of pleading rules. On the other hand relevancy looks to the probative quality of the evidence as the test.

Therefore all evidence not privileged, which can conceivably throw any light upon the controversy should be made available. Most assuredly the notes, memorandum and documents which the government has suppressed is the foundation upon which this wilful violation has been predicated. It is abundantly clear that whose liability they will, or may, tend to exculpate lends credence to their probative value and therefore relevant.

The government's second ground is rejected as being argumentative and not well founded. It is apparent that had there been an attempt at discovery before trial the umbrella of secrecy would have been raised loud and clear. In that event the government before trial may be enabled to take refuge behind the provision of the Freedom of Information Act to which it is now tenaciously endeavoring to cling.

Furthermore timeliness in the sense in which it has been asserted has to do with procedure. It just seems that it would be an abuse of discretion to reject Respondent's motion on this ground.

The government cites no authority to establish the privilege as an absolute one. At best the courts seem to be recognizing a qualified executive privilege which in fact is a discretionary one. This imposes a duty upon the judge to determine whether the litigants need for the information seems to outweigh the government's interest in secrecy as to its consultative functions Olson Ring Co. v. NLRB, 291 F. 2d 655.

Upon a formal claim of privilege by the executive the determination whether to allow it is then for the court. Even though every reasonable effort should be made by the parties, the court and the head of the executive department involved to avoid a conflict, ultimately the court, and not the executive officer, is to determine the validity of a claim of privilege to documents Overly v. U.S. Fidelity and Guarantee Company, 224 F. 2d 158. Sperandeo for and on behalf of NLRB v. Milk Drivers and Dairy Employees Local Union No. 537, 334 F. 2d 381.

In appropriate cases the court may make an in camera examination to help it in resolving the claim Machin v. Zuckert, 316 F. 2d 336, cert. denied 84 S.C. 172.

This action is in the nature of a prosecution and the government is the moving party thereby incurring the duty to see that justice is done. It therefore seems unconscionable to allow it to deprive the Respondent of anything which might be material to its defense. Therefore a suitable occasion sufficiently appeared to properly require an in camera inspection.

The Secretary of Labor made the determination that the documents were privileged and repeatedly refused to afford an in camera examination. Such conduct is an usurpation of power he does not possess Mitchell v. Bass, 252 F. 2d 513.

The notes and memorandum made and compiled during the inspections and closing conference are not subject to executive privilege unless in camera inspection should reveal some portion thereof to the contrary.

The government failed to make out a case of executive privilege and therefore that ground must be rejected.

VII

Finally this Judge rejects the Secretary's fourth ground for privilege.

Investigatory files compiled for law enforcement purposes may well be privileged prior to trial under the exemptive provision of the Freedom of Information Act. The purpose of the exception is to prevent premature discovery by defendant in enforcement proceeding. Wellford v. Hardin, 315 F. Supp. 175; Cooney v. Sun Shipbuilding and Drydock Company, 288 F. Supp 708.

Nevertheless with the adoption of this Act freedom of information is now the rule and secrecy is the exception. Wellford v. Hardin, Supra. Furthermore balance of equities in determining whether disclosure is in order is presumptively on the side of disclosure. Consumers Union of U.S., Inc. v. Veterans Adm., 301 F. Supp. 796.

It is significant to note that at least one Federal Court has held that documents which were prepared by inspectors employed by the Secretary of Labor and other officials in connection with their inspection of plants subject to Walsh-Healey Public Contracts Act were subject to disclosure under the Freedom of Information Act. Wecksler v. Shultz 324 F. Supp 1084.

Furthermore it appears to be well settled that a bare claim of confidentiality will not immunize files of governmental agency from scrutiny; rather the court has the responsibility of determining the validity and extent of the claim after careful consideration of the particular documents in question, and of insuring that the exemption is strictly construed. Also, where portions of documents requested under the Act are protected against disclosure as "privileged or confidential," identifying details or secret matters can be deleted to render the material subject to disclosure. Bristol-Myers Company, v. F.T.C., 424 F. 2d 935, cert. denied 91 S. Ct. 46.

Furthermore this Judge concludes that the Act, in excepting certain matters from its disclosure provisions, does not purport to make them privileged in the evidentiary sense.

Accordingly the government cannot hide behind the Freedom of Information Act and prevent disclosure under the facts and circumstances presented in this case.

VII

It is fairly well established that a privilege and rule of exclusion should apply in the case of writings and informations constituting military or diplomatic secrets of state or where the public interest would otherwise be damnified. In this cause the government has not fashioned such claims nor is it likely that it could.

It also appears that while neither the Congress nor administrative agencies have focused on whether the agencies must recognize testimonial privileges not constitutionally required, the agencies have generally accorded privileged treatment to communications between attorney and client, physician and patient and husband and wife. But the agencies have not been anxious to extend such privileges, however, there is some authority that the agencies have become more sophisticated in recent years in protecting both the witness and the adjudicative process by in camera receipt of sensitive data. E. Gellhorn, 22 Ad. L. Rev. 515.

Generally, then, it appears that when the government invokes the jurisdiction and aid of the court, executive immunity is waived. The government cannot as litigant in the prosecution of a criminal case suppress documents, where the prosecution is founded on those very dealings to which the documents relate. U.S. v. Andolschek, 142 F. 2d 503; U.S. v. Grayson, 166 F. 2d 863; See also Reynolds v. U.S. 345 U.S. 1. Nor may it proceed affirmatively against a respondent in a civil case while at the same time seeking under the guise of privilege to suppress evidence useful to the defense of the action U.S. v. Cotton Valley Operators Committee, 9 F.R.D. 719, affirmed in 339 U.S. 940. The Supreme Court said in U.S. v. Proctor and Gamble Company, 356 U.S. 677. "The Government as a litigant is, of course, subject to the rules of discovery."

Cross-examination usually does no more than demonstrate forensic talent or score trial points irrelevant to the final decision; yet in this cause it struck at the very vitals of the government's case. It is therefore self-evident that cross-examination is a means of getting at the truth; it is not truth itself.

This Judge holds that in administrative hearings, exculpatory information in an agencies possession or file data which may aid respondent's presentation of his case must be disclosed by the agency. Sperandeo v. Dairy Employees Local 537, 334 F. 2d 381; NLAB v. Capitol Fish Company, 294 F. 2d 868; Giles v. Maryland, 386 U.S. 66; Miller v. Pate, 386 U.S. 1; U.S. v. Bryant, 439 F. 2d 642. The alternative is to drop the prosecution against the respondent. Anything less would violate the commands of procedural due process which every adjudication must observe. FCC v. Pottsville Broadcasting Company, 309 U.S. 134.

The burden of proof of the facts of privilege is on the asserter of the privilege. Phelps Dodge Corporation v. Guerrers, 273 Fed. 415. The Secretary was given ample opportunity to explain the nature of the confidentiality of his file data. His feeble attempt produced only the fact that his file was an investigatory file and he concluded thereupon that all therein is statutorily exempt. In a word, during trial where the executive is the party prosecuting, it is not enough that he does not want to have the documents produced.

VIII

In passing it is well to note that in the famous Jencks case the Supreme Court laid down the proposition that reports of undercover agents who were government witnesses, could not be suppressed and further that it was not necessary that the defendant show that the reports were inconsistent with the witnesses' testimony, so long as they are shown to relate to the same subject Jenks v. U.S., 353 U.S. 657. Further, without deciding, this Judge would observe that the Jenks rule as now codified at 18 U.S.C.A. § 3500 may well have had applicability in the compulsion of discovery in this cause.

Finally the validity of claims of evidential privilege are traditionally the responsibility of the judge. As a public functionary he has respect for the executive's scruples against disclosure and at the same time his duties require him constantly to appraise private interests and to reconcile them with conflicting public policies; and he must weigh both interests understandingly and strike a wise balance.

The trend appears to be toward narrowing testimonial privileges in administrative hearings and where practical, toward resort to alternative protections against unnecessary public disclosure such as relevancy in the broad sense.

In bringing this decision to a close this Judge is mindful of the old Latin maxim, "Salus Populi Suprema Lex" ("The People's Safety Is The Highest Law"). Although originally pronounced under different circumstances and in a different social context it is apropos to the Job Safety Act and in particular to this cause; the prosecution thereof being for an alleged willful violation of a particular Safety Standard. This then raises the question of whether the public interest in the purpose and policy of the Act foreshadows the constitutional dimensions of procedural due process as came to the fore during the trial of this cause.

The transcript of the hearing reflects the magnitude of this Judge's efforts to bring about the discovery of that which the Respondent was entitled.

Counsel for the Secretary of Labor was ordered to hand up the notes, memorandum and report made by the government witness. The Secretary declined. At several stages during the hearing this Judge was, by the Secretary, denied permission to make an in camera examination of the pertinent file data. At the very least the Secretary should have permitted this inspection.

The actions and conduct of the Secretary of Labor is now perspicuous. His total failure to disclose denied the Respondent a fair and impartial trial. The constitutional proscription of due process of law must not be ignored. It is of solid rock in the framework of this democracy and shall not be permitted to crumble by the whimsical, capricious or arbitrary conduct of the executive, the Secretary of Labor.

Wherefore Respondent's motion to strike the testimony of Harry G. Hutton, the Secretary's Compliance Officer and the government's witness, together with the exhibits which he identified, from the record herein made, and Respondent's motion to dismiss the complaint should be sustained.

Inasmuch as this case has taken the turn as herein above delineated it is apparent that a discussion on the facts and law presented as to the Citation and proposed penalty would be an exercise in rhetoric as well as futility.

ORDER

It is the order and judgment of this Review Commission Judge that:

1. The testimony of witness Harry G. Hutton and the exhibits which he identified be and all thereof is hereby stricken from the record made herein, and

2. The Complaint is hereby dismissed, and

3. Accordingly the Citation and proposed penalty of the Secretary of Labor in this cause contained should be and they are hereby severally and collectively vacated.