The opinion of the court was delivered by: OBERDORFER
Chemical Manufacturers Association ("CMA") sues under the Freedom of Information Act for an order compelling the Consumer Product Safety Commission (the "Commission") to make available certain documents generated in connection with a study of di-2-ethylhexyl phthalate ("DEHP"), a chemical used, inter alia, in the manufacture of certain toys for children. The study is being conducted for the Commission by the Inhalation Toxicology Research Institute ("ITRI") of the Department of Energy pursuant to a contract. The study is in two phases. Task I, now completed, developed a process to extract and measure the quantity of elements of DEHP in various consumer products. Task I also involved designing and conducting laboratory experiments to determine the manner and extent to which DEHP passed from the products containing it to the consumers coming in contact with the products or inhaling fumes from their incineration. Task II investigated further the effect of human saliva on such products and the effects of DEHP in such specific products as pacifiers, teethers, and other soft plastic toys which small children put in their mouths. As a result of these studies, and despite objections by CMA, the Commission convened a Chronic Hazard Advisory Panel ("CHAP") to evaluate the studies and to advise whether regulatory action is indicated.
48 Fed. Reg. 56,628 (December 22, 1983).
Meanwhile, CMA established its own Phthalate Esters Panel. CMA and its Panel have persistently sought the documents generated by ITRI, reviewed them and "raised questions concerning the reliability and reproducibility of the data contained in the documents." Memorandum in Support of Plaintiff's Cross-Motion for Summary Judgment and in Opposition to Defendant's Motion for Summary Judgment at 6 [hereinafter referred to as Plaintiff's Memorandum]. Over time the Commission granted some, but not all, of these requests and indeed has released some materials since this suit was filed. According to Plaintiff's Memorandum at 9, the following categories of documents, all generated after July 12, 1983 in connection with Task II, remain undisclosed.
1. Draft copies of the Task II report, "Phthalate Ester Migration from Polyvinyl Chloride Consumer Products," dated July 31, 1984;
2. ITRI monthly progress reports for certain months in 1983 and 1984;
3. A draft protocol of an experiment designed to explore the variability of the migration data; and
4. One page of data dated April 4, 1984.
FOIA exemption (b)(5) provides that an agency need not disclose "inter-agency or intra-agency memorandums or letters which would not be available by law to a party other than an agency in litigation with the agency." 5 U.S.C. § 552(b)(5). CMA acknowledges that exemption (b)(5) protects deliberative materials that describe the manner in which policy or legal interpretations are formulated. See, e.g., EPA v. Mink, 410 U.S. 73, 87, 93 S. Ct. 827, 35 L. Ed. 2d 119 (1973). CMA's argument centers on the notion that scientific reports are not exempt under (b)(5) because they are not documents that reveal the process by which an agency formulates law and policy.
CMA argues that the Courts have consistently held that documents are part of the pre-decisional process exempt from disclosure under (b)(5) only if they make recommendations or express opinions about legal or policy matters. See, e.g., Jordan v. United States Department of Justice, 192 U.S. App. D.C. 144, 591 F.2d 753, 772-74 (D.C. Cir. 1978) (en banc). As the Court of Appeals stated in Vaughn v. Rosen, 173 U.S. App. D.C. 187, 523 F.2d 1136 (D.C. Cir. 1975):
It is not enough to assert, in the context of Exemption 5, that a document is used by a decisionmaker in the determination of policy. Unevaluated factual reports or summaries of past administrative determinations are frequently used by decisionmakers in coming to a determination, and yet it is beyond dispute that such documents would not be exempt from disclosure. Rather, to come within the privilege and thus within Exemption 5, the document must be a direct part of the deliberative process in that it makes recommendations or expresses opinions on legal or policy matters. Put another way, pre-decisional materials are not exempt merely because they are pre-decisional; they must also be a part of the agency give-and-take -- of the deliberative process -- by which the decision itself is made.
Id. at 1143-44 (footnotes omitted). CMA then argues that the courts have flatly refused to characterize scientific and technical reports as deliberative documents.
Our Court of Appeals has observed, in dicta, that exemption (b)(5)
encourages the free exchange of ideas among government policy makers, but it does not authorize an agency to throw a protective blanket over all information by casting it in the form of an internal memorandum. Purely factual reports and scientific studies cannot be cloaked in secrecy by an exemption designed to protect only "those internal working papers in which opinions are expressed and policies formulated and recommended."
Bristol-Myers Company v. FTC, 138 U.S. App. D.C. 22, 424 F.2d 935, 939 (D.C. Cir. 1970) (quoting Ackerly v. Ley, 137 U.S. App. D.C. 133, 420 F.2d 1336, 1341 (D.C.Cir. 1969)), cert. denied, 400 U.S. 824, 91 S. Ct. 46, 27 L. Ed. 2d 52 (1970). Other courts have reached the same conclusion. See, e.g., Parke, Davis & Co. v. Califano, 623 F.2d 1, 6 (6th Cir. 1980) ("The documents in dispute here do contain opinions of medically and scientifically trained persons. However, unless the opinion of an expert somehow reflects the deliberative process of decision or policy making, ...