Consumer Product Safety Commission v. GTE Sylvania, Inc.

PETITIONER:Consumer Product Safety Commission
RESPONDENT:GTE Sylvania, Inc.
LOCATION:United States District Court for the Northern District of Illinois, Eastern Division

DOCKET NO.: 79-521
DECIDED BY: Burger Court (1975-1981)
LOWER COURT: United States Court of Appeals for the Third Circuit

CITATION: 447 US 102 (1980)
ARGUED: Apr 14, 1980
DECIDED: Jun 09, 1980

ADVOCATES:
Bernard G. Segal – for respondents
Peter Buscemi – for petitioners, pro hac vice, by special leave of Court

Facts of the case

Question

Audio Transcription for Oral Argument – April 14, 1980 in Consumer Product Safety Commission v. GTE Sylvania, Inc.

Warren E. Burger:

We’ll hear arguments first this morning in Consumer Product Safety Commission and others against GTE Sylvania.

Mr. Buscemi, you may proceed whenever you are ready.

Peter Buscemi:

Thank you, Mr. Chief Justice and may it please the Court.

This case concerns the relationship between the Freedom of Information Act and Section 6 (b) (1) of the Consumer Product Safety Act.

The case is here because two Federal Courts of Appeals have disagreed over the way in which the two statutes should be applied.

The Second Circuit in Pierce & Stevens Chemical Corporation against the Consumer Product Safety Commission adopted the Commissions view that Section 6 (b) (1) does not apply when the Commission responds to an FOIA request.

Four months later in the present case, the Third Circuit reached the contrary result.

The Commission petitioned for certiorari to resolve the conflict.

And the facts here are straight forward.

In March of 1974, the Commission published a notice in the Federal Register announcing the time and place of a public hearing to discuss television receivers’ safety with emphasis on shock and fire hazards.

The notice asked manufacturers to submit a variety of information concerning television safety including all TV related accident reports collected since 1969.

When the manufacturers’ response to this informal request proved unsatisfactory, the Commission sought to obtain the same materials through the special order and subpoena procedures provided in Section 27 (b) of the Consumer Product Safety Act.

Eventually, television manufacturers submitted a large volume of information to the Commission, the vast majority of which consisted of TV accident data.

The Commission received more than 7600 TV related accident reports concerning accidents occurring between 1969 and 1974.

And soon after the manufacturers began to submit their requested materials, Consumers Union of the United States and Public Citizen’s Health Research Group filed FOIA request to inspect and copy the information submitted including the TV accident reports.

In response to those requests, the Commission made available all of the materials submitted by the manufacturers as to which no claim of confidentiality had been made.

The Commission then notified the manufacturers of the outstanding FOIA requests and asked them to substantiate the earlier claims of confidentiality that they had made at the time they submitted the information.

The manufacturers responded by asserting that the accident reports and some other materials were exempt from mandatory disclosure under the FOIA, under Exemption 4, the so-called “trade secret exemption” and Exemption 7, the exemption for investigatory files compiled for law enforcement purposes.

They also asserted that some of the material including some of the material within the accident reports could not be released because to release it would be to violate the criminal provisions of the Trade Secrets Act, 18 U.S.C. 1905.

The Commission then reviewed the accident reports and the manufacturers’ submissions on confidentiality and determined that the bulk of the material was not exempt from mandatory disclosure under the FOIA.

The Commission notified the manufacturers of its determination and told them they would withhold three categories of information, accident data that identified the name and address of an accident victim or included other personal information, the release of which might result in an invasion of privacy, accident data in the form of legal material such as legal memoranda and correspondents with an attorney privilege because of the attorney-client relationship or the attorney work product doctrine.

And finally, technical data that the submitting company had kept secret and the release of which might have caused substantial harm to the company.

The Commission also informed the manufacturers that because of the apparent variations in the way the manufacturers had maintained their accident records over the years between 1969 and 1974 that the release of those records under the FOIA would be accompanied by a statement to the effect that because of the variations, some of the data could be misleading.

Now, there’s never been any dispute in this litigation about anything but the accident reports, because in May 1975, the requesters agreed to limit their request to those reports, edited to eliminate the personal information about the accident victims and the legal materials.

After the Commission announced this decision, respondents, who are 12 of the affected to television manufacturers, filed separate lawsuits in the United States District Court for the District of Delaware, and three other District Courts.

All 12 suits were eventually consolidated in the District of Delaware.

In addition to their — repeating their contentions regarding the FOIA exemptions in the Trade Secrets Act, respondents, for the first time, alleged that the Commission’s proposed release of the accident reports would violate Section 6 (b) (1) of the Consumer Product Safety Act.

The District Court accepted this argument and permanently enjoined the Commission from releasing the materials without complying with the procedural requirements of Section 6 (b) (1).

The Court of Appeals for the Third Circuit affirmed, rejecting the analysis of the Second Circuit in Pierce & Stevens Chemical Corporation.

Now, because both Courts have — have decided this case in reliance of Section 6 (b) (1), neither has ever addressed the allegations by respondents that the accident reports are exempt from mandatory disclosure under the Freedom of Information Act.

Peter Buscemi:

So the case comes to the Court in a posture that disclosure is required under the FOAI, unless respondents are correct about the proper interpretation of Section 6 (b) (1).

Now, Section 6 (b) (1) applies to public disclosures of information by the Commission.

The statute provides that when the Commission proposes to make a public disclosure of information.

Byron R. White:

Well, could I ask I we — if we agreed with you, do we just reverse or is there anything open on remand?

Peter Buscemi:

Yes, we think that —

Byron R. White:

You think the FOIA question is open on the (Voice Overlap) —

Peter Buscemi:

That’s right.

Byron R. White:

Okay then.

Peter Buscemi:

Now, the statute provides that when the Commission proposes to release information from which the public could readily ascertain the identity of a particular consumer product and the manufacturer or a labeler of that product, the Commission must follow four procedural rules.

The first one, is that the Commission must notify the affected manufacture, must provide him with the summary of the information to be disclosed, and it must afford him a reasonable opportunity to comment on that information.

The second requirement is that the Commission must take reasonable steps to assure the accuracy of the information.

The third requirement is that the Commission must take reasonable steps to ensure that disclosure would be fair under the circumstances and reasonably related to effectuating the purposes of the Act.

And the fourth requirement is that if the Commission discovers after a disclosure had been made, that some of the information disclosed is inaccurate or misleading, it must publish a retraction “in a manner similar to that in which the original disclosure was made.

William H. Rehnquist:

Are you referring now, Mr. Buscemi to the language of 6 (b) (1) itself or to the regulation?

Peter Buscemi:

Language of 6 (b) (1) itself, Mr. Justice Rehnquist.

Now, the Commission’s position is that these four requirements of Section 6 (b) (1) did not apply when the Commission responds to and FOIA request.

Stated it in a different way, the Commission believes that Congress did not intend the phrase “public disclosures of information” under Section 6 (b) (1) to include releases of information in response to the mandatory disclosure provisions of the FOIA.

The Commission arrived that this interpretation of the statute that it administers for three principle reasons that I’d like to discuss in turn.

The first one —

William H. Rehnquist:

Before you get to that, you concede that this interpretation is one of the so-called Skidmore versus Swift & Company-type of interpretations where the Commission has not been granted the authority to fill in blanks.

It’s simply a — an interpretation by the agency charged with the administration of the statute.

Peter Buscemi:

That’s right.

And the Commission was confronted with the situation in which it had to decide — it receives many FOIA request and it therefore had to decide whether or not, and if so how Section 6 (b) (1) applied in that context, so it was necessarily required to make this kind of interpretation.

William H. Rehnquist:

But it — it’s not as if the — if Congress had authorized the Commission to define particular items or to make rules and regulations pertaining to disclosure which would have taken it outside of the Swift and Skidmore type of regulation and into the — simply, is it rational type of thing where you — which you frequently find where Congress has left the Commission to the — left the Commission the job of filling in blanks which it didn’t want to fill itself.

Peter Buscemi:

No, I think the critical consider — consideration here is Congressional intent, although the Commission is certainly authorized to promulgate regulations to explain how it’s going to interpret and apply the statute.

Now, the — the first of the principal reasons or the set of reasons that I want to discuss are the contrasting structure and purpose of the Consumer Product Safety Act on the one hand, and the Freedom of Information Act on the other.

Now, when Congress we used the phrase “public disclosure of information” in Section 6 of the Consumer Product Safety Act, it was referring to the sorts of affirmative disclosures made at the Commission’s initiative and with the Commission’s endorsement that are mandated elsewhere in the Act.

The Act taken as a whole makes clear, and respondents have never disputed that the primary function assigned to the Commission by statute is the collection, analysis, and dissemination of consumer product safety information.

We’ve listed in our brief at pages 15 to 17, a number of the Act’s provisions that direct the Commission to make public disclosures or to require such disclosures by others.

The most important example of those provision is Section 5 (a) (1) of the Act which directs the Commission to maintain an injury information clearing house, to collect, investigate, analyze, and distribute injury data and information relating to the causes of death, injury, and illness associated with consumer products.

Peter Buscemi:

The Commission is, thus under a statutory obligation to investigate possible safety hazards and to disclose the results of its investigations even if no one ever asks for those results.

And Section 6 of the Act follows immediately after Section 5, and the Commission believes that even the placement of the two sections in the statute supports its view that the public disclosures of information to which Section 6 refers are those undertaken by the Commission in the performance of it’s statutory duties.

This interpretation makes sense, in light of the purpose of the Consumer Product Safety Act, which is to educate the public with respect to product safety hazards.

When the Commission makes a public disclosure of the kind described in the Act, it wants and expects the consuming public to trust the accuracy of the information disclosed and to rely on it in making purchasing decisions with respect to consumer products.

The protections required by 6 (b) (1) fit perfectly in this context.

Indeed, the statute was designed, specifically, to protect against the harm that a manufacturer might suffer, if the Commission, through its weight behind a public disclosure of information that reflected adversely on a particular product and that subsequently proved to be erroneous.

That was the danger that Congressman Crane stressed on the House floor in his discussion of the FTC’s treatment of Zerex antifreeze that we reprint in the brief at pages 34 to 35.

And it was the danger against the rep — against which the representative of respondent, General Electric Company, warned when he testified at the House Subcommittee hearing on the consumer product safety legislation that —

Warren E. Burger:

Are you — are you suggesting that that’s the only precaution that the Congress took?

The — the retraction?

Peter Buscemi:

I’m sorry, Mr. Chief Justice, the retraction is only one of the —

Warren E. Burger:

Well —

Peter Buscemi:

— four requirements in —

Warren E. Burger:

Well, you — you (Voice Overlap) —

Peter Buscemi:

— Section 6 (b) (1).

Warren E. Burger:

— so much that I — I got the impression you were suggesting this would — this took care of everything.

Peter Buscemi:

No, I didn’t mean to do that.

I meant to say that the four requirements of Section 6 (b) (1) have particular application and the Commission argues exclusive application when the Commission is making an affirmative public disclosure of information.

That is the time at which there is some danger that a manufacturer will be injured if the Commission discloses inaccurate or misleading information.

And that is why Section 6 (b) (1) was included, all four requirements in Section 6 (b) (1).

By contrast, when the Commission releases information under the compulsion of an FOIA request, the Commission does not vouch for its accuracy.

There’s no distribution to the public at large, much less is there any expectation or intention that the public will learn of the information or rely on it.

And indeed, to forestall any such reliance, the Commission frequently accompanies FOIA releases with the kind of disclaimer proposed in this case, telling the requester that the information he or she has requested may for one reason or other be misleading.

William H. Rehnquist:

But Mr. Buscemi, don’t you think that in Chrysler Corporation last year, we recognized some difference between agency materials generated by the agency and materials on the possession of the agency which had been furnished by outside suppliers?

Peter Buscemi:

Well, that maybe so, but it does not in any way detract from the distinction between the FOIA release and the release at the Commission’s initiative that I’m trying to — to make here.

I mean, there may be distinctions between the kinds of information that the Commission possesses, but those distinctions are different in the distinction between an FOIA release and the release at the Commission’s initiative and with the Commission’s approval, such as the kind that the Commission is directed to make under the statute.

Now, the FOIA applies to all Government agencies.

It’s not concerned with instructing the public about the dangers of consumer products.

It’s concerned with opening the processes of Government to public scrutiny.

And the accuracy of the information in the Government’s possession is irrelevant to that purpose.

Peter Buscemi:

The Commission’s only duty under the FOIA, the duty that it shares with every other Government agency, is to release those documents reasonably described in an FOIA request that happened to be within its possession and control.

William H. Rehnquist:

And not otherwise exempted.

Peter Buscemi:

Well, the exemptions under the FOIA merely give the Commission discretion to make the decision as to whether or not to release them under the FOIA.

As far as — when this — as this case comes to the Court, no — neither court below has ruled on the question of whether any of this material is exempt from mandatory disclosure.

The Commission has determined that it’s not exempt and I think that that is the premise from which we have to begin here.

The only question presented here, and the only question decided below, is whether Section 6 (b) (1) applies in the FOIA context.

Byron R. White:

You mean it hasn’t been decided that the — that the standing alone, the FOIA exempts it?

Peter Buscemi:

That’s right.

It hasn’t been decided that any of the FOIA exemptions are applicable.

Potter Stewart:

The Commission has decided that.

Peter Buscemi:

Excuse me?

Potter Stewart:

The Commission has made the (Voice Overlap) —

Peter Buscemi:

Well, the Commission has but I mean by either of the —

Potter Stewart:

Yes.

Peter Buscemi:

— courts below.

Potter Stewart:

Right.

Byron R. White:

But the question is, is whether some other statute exempts it.

Potter Stewart:

Right.

Peter Buscemi:

The question is whether the procedures mandated by Section 6 (b) (1) must be followed in this context.

Byron R. White:

Well, do you think that it’s — so you think you must argue the FOIA to — into an — in order to interpret 6 (b)?

Peter Buscemi:

Well —

Byron R. White:

Like your doing?

Peter Buscemi:

The Commission has received FOIA requests.

The question is, how does the Commission respond, must it follow 6 (b) (1) in doing so.

So that means their case only arises because of the FOIA request.

That — that’s the context in which we discuss the FOIA.

Byron R. White:

But you seemed to be arguing because of the policy of the FOIA and — and what it’s trying to do with it — that — that there is on how you should — should construe (6) (b).

Peter Buscemi:

Well, the reason for discussing the FOIA is merely to point out that the statute is completely different from the Consumer Products Safety Act.

And whereas the procedural protections under the Act make sense in the context of the Act, they don’t make sense in the context of the FOIA which is designed to serve completely different purpose.

Byron R. White:

What was 6 (b) trying to do?

Byron R. White:

You say one thing it’s trying to do, I suppose, is to keep the Commission from itself publishing or putting its stamp of approval on inaccurate information.

But part of that purpose is to — it is to keep inaccurate information from being distributed, isn’t it, or not?

Peter Buscemi:

Well, the purpose is to keep inaccurate information from being distributed by the Commission at its initiative and with its approval.

The FOIA applies to all government agencies and all — and there are many other government agencies that have very significant information gathering power very similar, if not, broader than the Commission.

Byron R. White:

(Voice Overlap) yes, but you would think the Congress would intend the Commission, although it — if it — if it wanted to put its informator on it that it would have to have a hearing.

But if it just wanted to respond to a request from an outsider, it could distribute all the most inaccurate information without any safeguards at all.

Do you think Congress intended that?

Peter Buscemi:

Well, it’s not a question —

Byron R. White:

And — and use subpoena power to gather inaccurate information and then turn it over to anybody.

Peter Buscemi:

Well, it’s not a question of what the Commission wants to do, the FOIA request must come in and the Commission is compelled under the FOIA to release the information.

Byron R. White:

Why you’re arguing the FOIA?

Let’s talk about 6 (b).

William H. Rehnquist:

Which gives the subpoena power.

Peter Buscemi:

Well, 6 (b) doesn’t give the subpoena power, that’s elsewhere in the statute.

But the point is that in the Commission’s view, Section 6 (b) —

Byron R. White:

Well, if you want to talk 6 (b) why don’t we just stick to it?

Peter Buscemi:

Well —

Byron R. White:

And as — and I’d — again I ask you, what was 6 (b) trying to do?

Keep back inaccurate informations from being distributed or not?

Peter Buscemi:

It was trying to keep inaccurate information from being distributed by the Commission at its own initiative and with its approval, with the intention that the public — and — should rely on it.

When the Commission —

Byron R. White:

But — but never mind any other — any other kind of distribution under the FOIA.

However, inaccurate it might be, collect it and distribute it.

Peter Buscemi:

Well, sir, Section 6 (b) does not direct the Commission to collect information and distribute it under the FOIA.

Section 6 (b) applies only to public disclosures of information within the meaning of the Act.

Other provisions in the Act direct the Commission —

Byron R. White:

But you don’t say this is that — that this isn’t a public disclosure that’s at issue.

Peter Buscemi:

We say that a response to an FOIA request is not a public disclosure of information within the meaning of Section 6 (b) (1).

William H. Rehnquist:

The subpoena power is what enables the Consumer Safety Products Commission to have all these supplier — information in its hands in order to respond to an FOIA request.

Peter Buscemi:

That’s right.

Peter Buscemi:

And the very same kind of subpoena power, indeed, perhaps even greater subpoena power is vested in many other Government agencies, none of whom are required to comply with their provision like Section 6 (b) (1).

And that’s —

Byron R. White:

Well, now have 6 (b) (1) in it.

Peter Buscemi:

Well —

Thurgood Marshall:

Mr. Buscemi, assume that the — this consumers agency has made a study and it’s concluded that this microphone is dangerous.

And they’re just about to release that, and they get an FOIA request for it.

And they — if they let it out, FOIA, they have no response going to court.

If they let it out in their regular procedure, they do have to comply with 6 (b).

Peter Buscemi:

That’s absolutely right.

And that’s because there’s a major distinction —

Thurgood Marshall:

Does that seem right to you?

Peter Buscemi:

Well, I think there’s a major distinction between letting it out under the Consumer Products Safety Act with the Commission’s imprimatur on it telling the public, “Rely on this, don’t use that kind of microphone.”

Then there is in releasing it to an FOIA requester under the compulsion of the FOIA and just saying, “This is what we have.

We — we don’t make any statements with respect to its accuracy at all.”

Warren E. Burger:

Do you really think when it gets on to the public that any significant fraction of the public would know whether it did or did not have some kind of approval of the Commission?

Peter Buscemi:

Well, I think that there is no vouching for it by the Consumer Product Safety Commission in any representation that there was.

It’s simply something outside of the Commission’s control, the Commission has never approved it or said that it was correct.

Warren E. Burger:

Yes, but when that cat is out the bag, how many people are going to make that kind of analysis of where it came from?

Peter Buscemi:

Well, Mr. Chief Justice —

Warren E. Burger:

Which Government agency?

Peter Buscemi:

— if you simply look at the information that’s at issue in this case, we’re talking about accident reports, many of which were submitted to the television manufacturers by individual consumers, hand written letters, very brief type letters, my television exploded, my television caught on fire.

This is not the sort of material that is likely to engender public trust just because it’s released by the Commission.

The point is that the Commission in responding to the FOIA request from this material says absolutely nothing about whether these reports of accidents from individual consumers are accurate or not.

Warren E. Burger:

But when Congress authorized the Commission to withhold release under certain circumstances, then you’re really arguing that in another act, Congress went in the other direction.

Peter Buscemi:

Well, the FOIA exceptions have some application in this context, but they have not yet been adjudicated in any way.

There may be — the — the respondents have made arguments with respect to abusive discretion under the Administrative Procedure Act.

They’ve also made arguments under the Trade Secrets Act.

Those are the appropriate arguments we submit to be considered in this case.

Those are the arguments that would have to be made with respect to any Government agency.

Those are the kind of arguments that were considered by this Court in Chrysler against Brown.

William H. Rehnquist:

And they were —

Peter Buscemi:

Those —

William H. Rehnquist:

— rejected by the Commission here, were they not?

Peter Buscemi:

The Commission has found that this material is not exempt from mandatory disclosure under the FOIA.

But that finding is not at issue here, it may be right, it may be wrong.

The Commission believes it’s correct, but that’s precisely the kind of inquiry that ought to be made under the FOIA.

It’s — it’s precisely the kind of inquiry the Congress has regarded as sufficient to protect submitters of information to all other Government agencies.

And I think the Chrysler against Brown demonstrates that it is the kind of requirement that can protect submitters.

John Paul Stevens:

Mr. Buscemi, do we know whether the accident reports are accurate or not?

Peter Buscemi:

No, we do not.

John Paul Stevens:

Well, if they’re inaccurate, would they be misleading?

Peter Buscemi:

Well, it depends what you mean by misleading.

I think that we know that the respondents received these accident reports from individual consumers, that is they are accurate and not misleading to —

John Paul Stevens:

Would the — would the requesters have the legal right to republish them?

Peter Buscemi:

Yes.

John Paul Stevens:

And is there not a danger that that would be misleading if they’re inaccurate?

Peter Buscemi:

Well, there is a danger that it would be misleading —

John Paul Stevens:

Another question I just thought to happen at the same time, this case had been going on for about five years, isn’t it?

Why hasn’t the Commission up to now made the kind of investigation that would — that would lead to a proper disclosure of this material?

Peter Buscemi:

Well, because, Mr. Justice Stevens, there are over 7600 accident reports involved in this case.

John Paul Stevens:

Yes.

Peter Buscemi:

And — and that is one of the points that I’d like to address just briefly, there’re enormous practical problems involved here if it —

John Paul Stevens:

In knowing whether their accurate or not?

Peter Buscemi:

In going out and finding each individual consumer who submitted a report, checking his television or her television, making certain that the reports happened and so on.

John Paul Stevens:

So there is a substantial risk of inaccuracy and therefore of deception, is there not?

Peter Buscemi:

Well, there is a disclosure, first of all, not to the public at large and not with the Commission’s approval, and there is no risk that anyone will think that that Commission puts its imprimatur on these reports, because the Commission has not done so.

John Paul Stevens:

Do you think it makes much difference to the consumer who reads — reads some publication that there are 4000 accidents of certain description?

Whether or not the Commission says, “We’ve — we agree or we disagree if they just say this material came out of the Commission’s files?

Isn’t —

Peter Buscemi:

I think that may —

John Paul Stevens:

— there a danger of deception there?

Potter Stewart:

Well, that’s — that’s true of all — all material turned over by — in accord with the FOIA, isn’t it?

Peter Buscemi:

That’s correct.

Potter Stewart:

FBI reports and for the records and files and everything else?

Peter Buscemi:

Precisely.

It’s true of material collected by the FTC and the FCC pursuant to those agencies’ investigative powers and that — that is the — the critical point here.

Congress has provided adequate protections with respect to that material, protections that apply to all the Government agencies.

6 (b) (1) is addressed to a different matter and it involves only public disclosures of information under the Act, in the performance of the Commissions duties under the Act.

Warren E. Burger:

You haven’t mentioned if — or if you did I missed it, the matter of the definition of what is a TV accidents?

Peter Buscemi:

Well —

Warren E. Burger:

Did the — has the Commission got a regulation defining what they mean by a TV accident?

Peter Buscemi:

No, Mr. Chief Justice, the Commission does not —

Warren E. Burger:

— and I think that —

Peter Buscemi:

That is precisely why the Commission proposed to attach a disclaimer to the release of information stating that there were different recording and collecting procedures followed by the different manufacturers.

And therefore, the reports submitted by the different manufacturers might differ and be misleading in that way.

I’d like to save the rest of my time for rebuttal if the Court has no further questions at this time.

Warren E. Burger:

Very well.

Mr. Segal.

Bernard G. Segal:

Mr. Chief Justice and may it please the Court.

I would like to respond to Justice Stevens’ question because I’m afraid it wasn’t really answered.

And to do so, I need “only” two sentences and a response in the oral argument in the Third Circuit.

Judge Higginbotham asked counsel for the Commission.

“So you concede that it, referring to all these material, is deceptive, a melange of errors and a whole series of other words which Judge Leighton found.

He said it was deceptive, misleading, and he use three of four other words.

Mr. Mutterperl, “We have not disputed that, Your Honor.

That’s correct.”

And that is a major key.

Warren E. Burger:

Is that partly related, Mr. Segal, to the — the lack of the definition of what is a TV accident?

Bernard G. Segal:

Your Honors, one of the big problems here is, Mr. Chief Justice, that the industry begged the Commission to define what a TV-related accident was.

It simply refused.

Bernard G. Segal:

They begged them to define what they meant by various types of things they were asking, they refused.

And so you have just what Judge Higginbotham described as a melange of errors.

You have some people who gave TV accidents, where it happened within the set, he went to some TV manufacturers who gave it only if it went beyond the set.

And you had some who frankly said that if I was sitting on a sofa and I caused a fire on the sofa and that spread to the TV, that was a TV related accident.

Byron R. White:

Or if you stumbled over walking across the room.

Bernard G. Segal:

Yes.

Or if you suffered a hernia carrying the set.

[Laughter] Some answered that.

So Your Honors, for that reason, the Project Director for the Commission in testifying, said that he really couldn’t say that this was of any use to the public except for a general picture of TVs.

He said you couldn’t use it for comparison among companies and the expert that they called upon, he said — well he didn’t see that he would give much of anything to the public in view of the character.

That’s in the record and specific, if it please the Court.

The facts that we’re given by the representative of the Commission disregards all this which is a basic — he says that we didn’t raise Section 6 until very late with just an error.

We raised that as our first objection to the disclosure of the material.

Section 6 is absolutely categorical.

It says that if the identity of the manufacturers to be closed and only then, if that’s to be disclosed, this could all have been completely obliterated from the record if they had simply agreed not to disclose individual manufacturers tied into individual data.

Having admitted that it wouldn’t be any good for a comparison, having admitted that it would be a melange of errors that having admitted that each answered in a different way.

They categorically refused to put out the testimony without disclosing manufacturers.

Have they done that, we wouldn’t be here today.

Why they didn’t do it is beyond me, Your Honors.

Now, the argument that is used that the Chief Justice addressed himself to, whether when the Commission releases information.

Let me take an example, suppose the New York Times comes to the Commission and says, “Give us this material,” and the Commission gives it.

Instead the New York Times goes under the federal FOIA and asks for the information.

What difference can there be in the public conception when that is published?

In this case, one of the requesters is the Consumers Union, it publishes the consumers’ reports monthly.

What difference will it make when it publishes?

I’ve read it, it never gives the source.

It always gives the facts.

It always would state this came from the Commission.

What difference is it to the public if he says, “Oh, I got this as an FOIA requester, or I got this by asking it directly from the Commission.”

(Voice Overlap) The Commission is the source in neither event.

Byron R. White:

In — in republishing, what might be released under FOIA?

The republisher isn’t required to put on a little warning that this maybe misleading.

Bernard G. Segal:

Indeed, the — no agency is permitted to request that or require it.

And I might say to Your Honors as I’m sure you know the Legal Times of Washington, each week publishes a whole list of the FOIA requests.

In Pierce & Stevens, Judge Feinberg expressly contrasted the industrial nature of the supplier and the single person character of the requester who had a very appealing case, Your Honors, and who came to the Commission with not information supplied by others but as a woman who had suffered, her house completely burning down, herself being injured.

And an examination by the agency itself and she said, “Can I have the result to that — that examination?”

It was a rather easy case and Judge Feinberg said, “Well, when you have all of these industrials and a person asks for it, isn’t it fair to give it to the person?”

I think he lost sight of the fact that most often — by the way, it is not individuals who go to the FOIA.

It’s of course industry, it’s of course the press, it’s of course interested parties, it’s of course consumer groups.

And as the Chief Justice pointed out to say that it has an imprimatur if it comes directly from the Commission.

But it has no imprimatur if it goes through the FOIA even though the Commission hasn’t the right to say, “You must say it comes through the FOIA.”

It’s in my mind Your Honors simply to state the fact that beggars belief.

Now, as to why it was that Section (6) (b) (1) was put into this particular statute, I must say to Your Honors that sometimes, doubting the wisdom of Congress as some of us do perhaps unwisely.

This was one time when it acted with a great statesmanship.

What happened?

The Commission foresaw that it would require for its particular assignment, it must remember, if it please the Court, that this came in 1972 when consumerism was enveloping the nation.

And this was an endeavor and the biggest thing the consumers were asking, “Protect the consumer,” by the Congress to answer that persistent demand hammering at its doors with representatives, crowding its galleries.

And the House Report, the Commission studiously avoids going into the legislative history and as our brief discloses and obviously, I won’t have time to do it.

The House Reports, the Conference Reports, really answer all of the questions.

For example, Mr. Justice Rehnquist answer you, there never have been regulations, ever issued by the Commission in the eight years that it’s been in existence.

They issued a form of regulation to be discussed to never issue the regulation, so there is none.

The Congress said it recognized that the Commission would need and now I quote, “The means of gaining access,” this is in the House Report, “gaining access to a great deal of information which would not otherwise be available to the public or to Government, as the quid pro quo.”

William H. Rehnquist:

Mr. Segal, on page 52 of your brief, the last paragraph starts not surprisingly when the CPSC’s “administrative interpretation” was represented to Judge Latchum in October 1977.

He refused to accord any significant way noting that it “did not arise until after the present controversy began.”

You — you’re suggesting that that was not a matter that had been —

Bernard G. Segal:

Oh, no.

That refers to subsequent legislative history which the Commission endeavored.

There was an act of little consequence, it was endeavored to be able to incorporate cities into the act on someone.

And then undoubtedly at the request of the Commission, they put in a statement that we intended, the consumer practice — the Consumer Product Safety Act to apply only to affirm of discloses, only to their disclosures.

It was an endeavor by the Congress years after the Act to say what had been meant.

Bernard G. Segal:

Now, as Your Honors well know, the law is crystal clear as pronounced by this Court that you can do that only by legislation, you can do it only by a specific legislative declaration.

But a —

William H. Rehnquist:

Well, the —

Bernard G. Segal:

Congressman says —

William H. Rehnquist:

— the brief refers to the Commission’s “administrative interpretation” presented to Judge — Judge Latchum.

Bernard G. Segal:

That — that is correct, Your Honor.

The Commission appeared asking that this be incorporated and I might say that they asked for a specific provision saying what they now urging, and what do you think happened to it?

It died in Committee and anything be more conclusive.

Now, to get back if you please —

Byron R. White:

What Mr. Justice Rehnquist is referring to something that was refer — that was represented to a — to a — the judge.

District Judge.

Byron R. White:

The District Judge.

Suggesting that — that this administrative interpretation was a late bloomer.

Bernard G. Segal:

That was represented to the judge, Your Honor, and it’s indeed a late bloomer.

Byron R. White:

And that — that —

Bernard G. Segal:

It was —

Byron R. White:

It — it arose only after this dispute started.

Bernard G. Segal:

Arose years after the dispute was in the Court.

Now, just to get back to what the legislative history shows was the desire under this Act.

It said, “We would need the means of gaining access to a great deal of information which would not otherwise be available to the public or the Government, and the quid pro quo for this was Section 6.”

And I again quote, “From the House Report as to what they felt they gave.”

They gave detailed requirements and limitations relating to the Commission’s authority to disclose information which it acquired in the conduct of its responsibilities under this Act.

Not gave only if it did it directly, not gave only as to this magic word affirmative, then say disclosure except through the FOIA, it could well have done that.Section 6 does specifically refer to the FOIA.

Section 6 does specifically refer to things that could not be disclosed and it was an amendment to that that the Commission asked in 1977 and the Congress just wouldn’t pay any attention to it because that was completely adverse to what they wanted.

What they realize was, that Congress — that the industry was unlikely to cooperate and release all these vast data from its files if it felt the Commission was merely a conduit to the public, whether by FOIA or directly from the Commission.

And second, I must say for the Congress that the debates indicate that it recognize that it would be unfair if the names of manufacturers, and I emphasize to Your Honors that Section 6 (b) (1) does not apply unless the name of the manufacturer is clearly, name is given or can be gleaned from the information.

If that’s not so, then Section 6 has no application whatever.

Now, the statutory language itself, this word public — me just say to Your Honors in a word, the title of Section 552 of FOIA is public information.

What do you think is the title of 25 (c) of the Consumers Product Safety Act?

Public information, identical.

Bernard G. Segal:

What’s the title of Section 6 which we’re discussing?

Public disclosure of information.

The Act use identical information how they can argue that one applies and the other doesn’t, really is a — certainly beyond the language of the Act, certainly beyond the legislative history of the Act and that’s categorical on our brief, again and again quotes that.

And except for having quoted to Your Honors what I think is the most important, I will not quote the legislative history any longer in the interest of time.

The problem here is the interaction of two statutes, and a kind of endeavor to have the philosophies differentiated by the Commission.

In the first place, that can’t be done because of the clear language.

Your Honors, all these words that have been used by my friend, this word “affirmative” that appears nowhere in the statutes.

The evidence of exclusivity appears nowhere in the statute.

His whole argument is because Congress hasn’t introduced the Section 6 (b) (1) in the Federal Trade Commission Act, how can there be a Section 6 (b) (1) in this Act?

Well it’s there.

And why that Congress did it is there.

And I might say to Your Honors that in my judgment if the Federal Trade Commission Act had been passed under the same pressures of the consumers that this was and there had been the same knowledge that that’s the way they get the information.

I’m a practicing lawyer as Your Honors know and let me tell you, if not for Section 6 (b) (1), when RCAS are advise, and we said, “Give them everything you want.”

We would’ve said, “Give them nothing.”

Then what would’ve happened?

Years of litigation would’ve been sued and years of litigation would’ve been sued as to every endeavor by the Commission and that’s what Congress recognized in its wisdom and that’s what was avoided here.

They got this — they got really everything in the files of RCA pertaining to — we didn’t know what, pertains anything that relate — remotely related to it.

Now, we could show if they are in conflict, rules of statutory construction, I could say to Your Honors the obvious since this is a 1972 Act, of course, it prevails over in 1966 Act.

I could say to Your Honors since this is specific, it prevails over the general.

But I have tried to give you what I regard as really a very much more basic underlying reason for this Act, because I do believe that the consumers are entitled.

When you get into this kind of thing, first, they’re entitled to a different kind of treatment than the Commission gave a whole subject.

They’re entitled to deliberate consideration.

The Commission can’t now endeavor to remedy its errors by saying, “Well, there’s no difference.We’ll just ask for it through the FOIA and then everything will be cleared up.

Don’t worry about the fact that’s deceptive.

Don’t worry about its being a mélange of errors.

Don’t worry about its being abysmally unfair to the manufacturers.

Don’t worry about how it could hurt a manufacturer who turned overall his files on the assumption that the Act meant what it said.”

If the Commission hadn’t done that, but had acted here deliberately and states them, why, we wouldn’t be here.

And as I said earlier, we wouldn’t be here, if it pleased the Court, if they had simply removed the names of the manufacturers.

What use could that be since the Project Director said he had to say frankly that it would be no good for that purpose at all?

Bernard G. Segal:

It couldn’t be any good for comparisons among companies, then why will you give names of companies?

Just the kind of abstinency, just the kind of adherence.

Well, this is FOIA, so we’re in the clear, we don’t need to abide by even rules of decency.Now, the Pierce case, Your Honors, was a very compelling case.

The Pierce case was a case in which a woman had had her house burned down, had been severely injured and she asked for the labels to see whether the label on her bottle was the same as the other labels.

And the Commission advised her or the department advised her that there were questions about it, if it had an investigation but we have to go to the manufacturer.

Now, I suggest to Your Honors that if that case hadn’t gone the way it did and the information had been supplied, no Court in the land would have undone or would have reversed that action.

And to show you how much Judge Feinberg’s emphasis was on the incident and not the law.

I might say to Your Honors with the greatest of deference to accord of which I hold the highest regard, I’m sure if it rereads that opinion, it would not want its standing in the legal community to be determined by that opinion.

That simply doesn’t address the legislative history.

It simply doesn’t address the questions.

But to show you the unitary attitude, I just quote you one statement.

We believe that in this statute affecting only commercial enterprises, Congress did not intend to reduce disclosure called for by the FBI when a person requests documents.

Now, a person requested in that case, but the case applies if a corporation asked it, if an organization asked it, if the New York Times asks it.

And somehow, the sympathy for the case, I’m afraid, overrode the kind of analysis and the kind of opinion that the Second Circuit has become admired for.

Now, Your Honors, there’s a great deal I could talk about concerning the language of the courts but I don’t see any reason to take Your Honors’ time unless there’s a question.

Warren E. Burger:

Very well.

Mr. Buscemi, do you have anything further?

Peter Buscemi:

Thank you, Mr. Chief Justice, I have only two brief points.

This case is purely a case of congressional intent.

Respondents have not replied to either of two points that the Commission relies on in both of its briefs.

The first is, respondent has not explained why Congress would have decided to place a provision like Section 6 (b) (1) in the Consumer Product Safety Act but not in any other statute that in — that creates an agency and empowers an agency to require private parties to produce information submitted to the agency.

All Government agencies are subject to the FOIA and that includes Government agencies created by statutes even after 1972 when there has this — been this atmosphere of avoiding overregulation, Commodities Futures Trading Commission is just one example.

And there’s no indication anywhere in respondents’ argument or in brief, what the explanation would be for applying 6 (b) (1) to the Consumer Product Safety Commission alone.

Moreover, there’s — there’s a second point where there’s no explanation.

Thurgood Marshall:

(Inaudible) was its reason wasn’t — it is only in that one Act?

Peter Buscemi:

Well, that’s true but the question —

Thurgood Marshall:

Isn’t that the answer to —

Peter Buscemi:

But the point —

Thurgood Marshall:

Isn’t that the answer to —

Peter Buscemi:

— point is that there is something —

Thurgood Marshall:

— your question?

Peter Buscemi:

There is something special about the Consumer Product Safety Commission and that is that it has this obligation to make disclosures to the public.

That’s why Section 6 (b) (1) has to be there because that’s why the Consumer Product Safety Commission is different.

Warren E. Burger:

But the question is, what kind of disclosures and under what limitations, isn’t it, under — under the Consumers Safety Act —

Peter Buscemi:

That’s right.

And we will —

Warren E. Burger:

— which is quite different from FOIA have — FOIA has no —

Peter Buscemi:

That’s (Voice Overlap) —

Warren E. Burger:

— concerns in that area?

Peter Buscemi:

That’s right.

And that’s why we said that 6 (b) (1) does not apply under the FOIA.

Warren E. Burger:

Now, let me try to — let me see if I gather it clear.

In the Pierce case, you had a situation where the woman used a cleaning fluid, if I have that case correctly, and that caused the fire and burned down her home and injured her.

Now, that which clearly be reported as a consumer — an accident of some kind.

Now, suppose the housewife is watching television in the morning and forgets to turn off her oven and not only burns the cake but sets the house afire, would that be conceivably reported as a TV related accident?

Peter Buscemi:

I don’t see how, Mr. Chief Justice.

Warren E. Burger:

Well, then, how did they report the fellow who got the hernia because he lifted his heavy television set?

Is that a TV related accident?

Peter Buscemi:

That was — that was submitted to the Commission by one of the manufacturers.

Why they submitted it?

I don’t know.

I mean the Commission is not responsible.

Warren E. Burger:

Perhaps they did it in an abundance of cautionary case.

The Commission has declined apparently to define what they mean by an accident.

Peter Buscemi:

The Commission did state to the manufacturers that it wanted them to submit the broadest possible spectrum of materials so that they’d be the largest possible database to determine whether there should be a proceeding initiated to promulgate a safety rule related to television sets.

Commission did not say to report every accident that occurred anytime a television was on within 100 feet or something.

I mean, it just was not done.

I just want to briefly mention the second point that I had and that is, I’d like to direct the Court’s attention to the 1976 amendment to the Act in Section 29 (e).

This is discussed in our brief and I don’t have time to go into it but the — I submit to the Court that the Conference Committee report to that section makes it absolutely clear that Congress believes that there is no obligation to comply with the procedures in Section 6 (b) (1) when the Commission or another federal agency responds to an FOIA request.

Thank you.

Warren E. Burger:

Thank you, gentlemen.

The case is submitted.

We’ll hear arguments next in Standefer against the United —