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HONEYWELL, INC. v. CONSUMER PROD. SAFETY COMMN.

February 27, 1984

HONEYWELL, INC., Plaintiff,
v.
CONSUMER PRODUCT SAFETY COMMISSION, Defendant



The opinion of the court was delivered by: JOHNSON

 NORMA HOLLOWAY JOHNSON, District Judge.

 Plaintiff, Honeywell, Inc., instituted this action for declaratory and injunctive relief to review defendant's decision to release certain information to the public pursuant to the Freedom of Information Act (FOIA), 5 U.S.C. § 552 (1982). The gravamen of Honeywell's complaint is that the determination by defendant, the Consumer Product Safety Commission (the Commission), to release certain materials pertaining to Honeywell violates the Consumer Product Safety Act (CPSA), 15 U.S.C. §§ 2051-2083 (1982). The individuals who made the FOIA requests in question have intervened as defendants.

 This case is before the Court on Honeywell's motion for a preliminary injunction to prevent the release of documents pending resolution of this case on the merits. For the reasons set forth herein, Honeywell's motion is granted.

 FACTS

 On March 7, 1983, the Commission issued an administrative complaint against Honeywell, pursuant to section 15 of the CPSA, 15 U.S.C. § 2064 (1982). In re Honeywell, CPSC Docket No. 83-2. In the complaint, the Commission alleged that certain Honeywell gas controls contained a defect and were therefore a "substantial product hazard." See 15 U.S.C. § 2064 (1982). During the discovery phase of the complaint proceeding, counsel for the Commission (complaint counsel) requested that Honeywell provide access to, and copies of, many engineering, marketing, and manufacturing documents from its files. Honeywell complied with the Commission's discovery requests and responded to numerous interrogatories. In addition, Honeywell provided documents relating to pending and closed civil actions involving the gas controls in question. Complaint counsel also deposed thirty current and former employees of Honeywell. Using data obtained in discovery, the Commission prepared, or had prepared by independent contractors, studies, tests, and reports for use in the proceeding.

 In a letter of June 3, 1983, to the Commission, Honeywell claimed confidentiality for all information contained in pleadings or discovery responses submitted by Honeywell or complaint counsel. See 15 U.S.C. § 2055(a)(2) (1982); 18 U.S.C. § 1905 (1982). Honeywell's request for confidentiality was denied as inappropriate by the Secretary of the Commission on October 13, 1983. Honeywell was advised, however, that documents from the administrative proceeding would not be released before October 28, 1983, notwithstanding FOIA requests, to afford it an opportunity to seek a protective order. Honeywell failed to seek such protective order which may have resulted in in camera treatment by the Administrative Law Judge (ALJ).

 The Commission had received requests dated July 7 and October 4, 1983, from defendant-intervenors, pursuant to the FOIA, for copies of a report prepared by an independent contractor and depositions of certain Honeywell personnel. The depositions were released to defendant-intervenors by the Commission on November 22, 1983. Prior to disclosing the depositions, the Commission did not comply with the procedures in section 6(b)(1) of the CPSA, 15 U.S.C. § 2055(b)(1) (1982), to safeguard the accuracy of the disclosed material and the overall fairness of the release. To support its noncompliance with section 6(b)(1), the Commission maintained that the documents disclosed were within the exception in section 6(b)(4)(B), 15 U.S.C. § 2055(b)(4)(B) (1982), to the requirements for section 6(b)(1).

 Defendant-intervenors made a further FOIA request on November 28, 1983, for copies of thirteen depositions of Honeywell personnel. On December 9, 1983, Honeywell submitted a motion for a protective order to the presiding ALJ. See 16 C.F.R. §§ 1025.31(d), 1025.45 (1983). In support of granting a protective order, Honeywell contended that the documents obtained in discovery could not be disclosed until the Commission complied with the preclearance procedures in section 6(b)(1). At a prehearing conference on December 16, 1983, the presiding ALJ denied Honeywell's motion for a protective order based on the Commission's argument that the discovery material was within the section 6(b)(4)(B) exception.

 DISCUSSION

 In 1972, Congress enacted the CPSA and created the Commission to "establish comprehensive and effective regulation over the safety of unreasonably hazardous consumer products." H.R.Rep. No. 1153, 92nd Cong., 2nd Sess. 26 (1972). To facilitate the Commission's regulation of consumer product safety, Congress granted it broad powers to collect, analyze, and disseminate product safety information, see, e.g., 15 U.S.C. § 2054(a)(1) (1982), and to conduct research and investigations of consumer products, see, e.g., 15 U.S.C. § 2054(b)(1)(2) (1982).

 Section 6 of the CPSA, 15 U.S.C. § 2055 (1982), regulates "public disclosure" of information by the Commission, including release of information to FOIA requesters. See Consumer Product Safety Commission v. GTE Sylvania, Inc., 447 U.S. 102, 100 S. Ct. 2051, 64 L. Ed. 2d 766 (1980). Section 6(b)(1) requires that at least thirty days before the public disclosure of information obtained under the CPSA, the Commission notify the manufacturer and provide it with a summary of the information to be disclosed, if this information describes the product in a manner as to permit the public to ascertain readily the identity of the manufacturer. The manufacturer must be accorded a reasonable opportunity to submit comments regarding the information. In addition, the Commission is required to take "reasonable steps" to assure that such information is accurate and that disclosure is "fair in the circumstances and reasonably related to effectuating the purposes of [the CPSA]." 15 U.S.C. § 2055(b)(1) (1982). Upon the manufacturer's request, the Commission must include with the disclosed information any comments or other information, or a summary thereof, submitted by the manufacturer. Section 6(b)(4)(B), however, provides that the requirements of section 6(b)(1) do not apply "to the public disclosure of . . . information in the course of or concerning . . . an adjudicatory proceeding (which shall commence upon the issuance of a complaint). . . ." 15 U.S.C. § 2055(b)(4)(B) (1982).

 Moreover, section 6(b)(3) provides that prior to the date set for release of the information, the manufacturer may bring an action in district court to enjoin disclosure. 15 U.S.C. § 2055(b)(3) (1982). The district court "may enjoin such disclosure if the Commission has ...


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