OSHRC Docket No. 78-235

Occupational Safety and Health Review Commission

May 3, 1979


Before: CLEARY, Chairman; BARNAKO and COTTINE, Commissioners.


Baruch A. Fellner, Office of the Solicitor, USDOL

William S. Kloepfer, Assoc, Regional Solicitor

Jeffrey G. Wyner, for the employer




COTTINE, Commissioner: On June 29, 1978, the Commission granted the Motion for Interlocutory Appeal and Stay of Hearing filed by the Secretary in this case under Commission Rule 75, 29 C.F.R. 2200.75. The issues to be resolved are whether the interlocutory appeal is properly before the Commission at this point in the proceedings and, if so, whether the Secretary is required to answer certain interrogatories from the Respondent, Quality Stamping Products Company ("Quality Stamping"). These interrogatories request the name and relationship to Quality Stamping of an unidentified person ("informer") whose written investigative complaint about allegedly hazardous conditions at the plant led to the inspection and resulting citations at issue in this proceeding. That complaint primarily alleged safety hazards created by Respondent's power presses. In addition, the complaint indicated that the informer was neither an employee of Quality Stamping nor a representative of [*2] its employees.

On November 29 and December 7, 1977, an inspection of Quality Stamping's workplace in Cleveland, Ohio was conducted for the purpose of investigating the informer's allegations contained in the written complaint. n1 At the beginning of the inspection, the Secretary's compliance officer provided the Respondent with a copy of the complaint with the informer's name deleted. as a result of the inspection, Quality Stamping was issued citations alleging three violations of 29 C.F.R. 1910.217 with respect to its power punch presses.

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n1 The Secretary's compliance officer admitted that he did not know the informer's occupation, and that the informer was not contacted prior to the inspection.

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In both its notice of contest and its answer, Quality Stamping asserted that the complaint "was filed for harassment purposes" and requested the identity of the informer. At the hearing on May 23, 1978, its counsel reiterated this request. The Secretary refused to disclose the information even after the compliance officer [*3] had finished his direct examination. The Secretary asserted that the informer's privilege protects from disclosure the identity of persons supplying the government with information on violations of law. The judge sustained the refusal, stating that the information was properly a matter for discovery. Thereafter, the judge granted the Secretary's motion to amend one of the citations to allege a violation of a different paragraph of the standard originally cited. As a result of this amendment and a request by the Respondent the hearing was continued until June 16, 1978.

On May 24, 1978, the Respondent filed a motion for leave to serve interrogatories. The proposed interrogatories requested "the name, residence address, and business telephone number" of the informer and "the relationship (whether employee, representative of employee, or whatever)" of the informer to Quality Stamping Products Co. at the time the investigative complaint was filed. On May 26, 1978, the judge entered an order granting the Respondent's motion and requiring the Secretary "to answer and serve its responses to such interrogatories" within five days from the date of their service. Before receiving the [*4] judge's order, the Secretary filed objections to the Respondent's interrogatories on May 26. On May 31, he filed a Motion for Interlocutory Appeal and Stay of Hearing with the Commission. Judge McQuade continued the June 16 hearing pending Commission action on the Secretary's motion, and the Commission subsequently granted the interlocutory appeal.

Appropriateness of Interlocutory Appeal

Quality Stamping argues that the petition for interlocutory appeal is not properly before the Commission because it was not timely filed and because the judge should initially rule on the Respondent's motion to dismiss the case. Quality Stamping's argument that the Secretary's request for interlocutory appeal was not timely rests on its assertion that at the May 23 hearing the judge ordered the Secretary to supply the information sought by the Respondent. n2 However, the judge did not issue any order of record in these proceedings overruling the Secretary's objections to the interrogatories and requiring the disclosure of the name of the informer or his relationship to Quality Stamping. n3 In the absence of this order, we conclude that the Secretary's request was filed prematurely, rather [*5] than late, and that this interlocutory appeal was therefore improvidently granted.

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n2 Requests for special permission to appeal must be filed within five days of receipt of the ruling that is being appealed. Commission Rule 75(b), 29 C.F.R. 2200.75(b). The Secretary's May 31 request was more than 5 days after the hearing.

n3 The only relevant order of record is the May 26 order granting Quality Stamping leave to serve interrogatories, an order issued under Commission Rule 53(b), 29 C.F.R. 2200.53(b). The Secretary's objections were a permissible response to those interrogatories under Rule 33(a) of the Federal Rules of Civil Procedure, which applies to Commission proceedings as provided in Commission Rule 2(b), 29 C.F.R. 2200.2(b). The May 26 order contains no ruling on the merits of the Secretary's objections, which were also filed on May 26. Accordingly, a ruling should have been sought under Federal Rule 37(a) before an interlocutory appeal was requested.

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Nevertheless, both parties have submitted lengthy [*6] briefs on the issues raised by the interlocutory appeal and there is an adequate basis for a decision. Also, a Commission decision at this time will expedite the case by avoiding the possibility of another appeal following a remand and decision by the judge. The only purpose of a remand in this case would be to instruct the parties that an interlocutory appeal should not have been sought in this case before the judge ruled on the objections to the interrogatories. However, this discussion adequately informs the parties as to the impropriety of seeking special permission to appeal under the circumstances of this case. Therefore, in the interest of judicial efficiency we will consider the merits of this appeal. Cardwell v. Chesapeake & Ohio Railway, 504 F.2d 444, 447 (6th Cir. 1974); Steele v. Wiedemann Machine Co., 280 F.2d 380, 383-384 (3d Cir. 1960). See Wright, Miller, et al., Federal Practice and Procedure, Jurisdiction and Related Matters 3929 at pp. 142-143 (1970). n4

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n4 As to Quality Stamping's contention that its Motion to Dismiss the Complaint and Vacate Citation with Prejudice should be decided before this appeal, we note that this dismissal motion was filed on June 5, after the Secretary sought the interlocutory appeal. Moreover, the Respondent's motion is based to a large degree on the same contentions that the Respondent is advancing in this appeal. Under these circumstances, the judge did not abuse his discretion by continuing the hearing pending Commission action on the appeal.


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The principal issue in this interlocutory appeal is whether the Secretary is required to answer Quality Stamping's interrogatories regarding the informer's identity. Resolution of this issue turns on the provisions of Rule 26(b) of the Federal Rules of Civil Procedure, which delineate the scope of permissible discovery in Commission proceedings. n5 Under Rule 26(b)(1), a party may obtain discovery of any information relevant to the subject matter in the case unless the information is privileged. That rule further provides that "[i]t is not information is privileged. That rule further provides that "[i]t is not ground for objection that the inforamation sought will be inadmissible at the trial if the information sought appears reasonably calculated to lead to the discovery of admissible evidence."

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n5 Commission Rule 2(b), 29 C.F.R. 2200.2(b), requires the Commission proceedings to follow the Federal Rules of Civil Procedure in the absence of a specific provision in the Commission rules. While the Commission has adopted a rule relating to interrogatories, Rule 53, 29 C.F.R. 2200.53, that rule regulates only the manner for serving interrogatories and the time limits for responses. Accordingly, the applicable Federal Rule governs since the Commission has no rule delineating the scope of permissible discovery.


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The parties in this case disagree both as to whether the information sought is "relevant" and whether it is "privileged." As the rule indicates, the party seeking the information must first show that it is relevant to a material issue in the case before the question of privilege is even reached. Stephenson Enterprises, Inc., 76 OSAHRC 122/A2, 2 BNA OSHC 1080, 1973-74 CCH OSHD P18,277 (No. 5873, 1974), aff'd 578 F.2d 1021 (5th Cir. 1978).

Quality Stamping asserts that the informer's identity is relevant to its claims that this proceeding has subjected it to harassment, ultra vires government action and a denial of due process. These claims are based in part on allegations that the inspection was improper. Quality Stamping claims that the identity of the informer is relevant to show a lack of probable cause for the inspection and the improper motives of the informer in filing the complaint and the compliance officer in conducting the inspection. We conclude that "the information sought [the informer's identity] appears reasonably calculated to lead to the discovery of admissible evidence" [*9] relevant to Quality Stamping's claim that the compliance officer acted in bad faith in conducting the inspection. The informer may have knowledge regarding any improper motives which might have led to the inspection or citation by the Secretary's agents. Similarly, the informer may have knowledge about other matters that would aid in determining any improper motive. Therefore, the information sought by Quality Stamping is "relevant" within the meaning of Federal Rule 26(b)(1). n6

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n6 Having found that the informer's identity could lead to the discovery of evidence relevant to the claim that the compliance officer acted improperly, it is not necessary to rule on Quality Stamping's other contentions of relevancy. It is only necessary to determine that the information sought is relevant to one material issue of fact or law in order to meet the relevancy test of Rule 26(b). It is also not necessary to determine at this time whether Quality Stamping's contention, if established, would entitle it to any relief in this proceeding. It is sufficient to note that under section 8(a)(2) of the Act, 29 U.S.C. 657(a)(2), the Secretary is directed to conduct his inspections "within reasonable limits and in a reasonable manner." Evidence that a compliance officer conducted an inspection for the purpose of harassing an employer, or for other improper reasons, could establish or help to establish a claim that the Secretary did not comply with section 8(a)(2). The Commission has indicated that it will consider evidence relevant to an employer's claim that the Secretary has not adhered to the requirements of section 8(a)(2). Electrocast Steel Foundry, Inc., 78 OSAHRC 34/B7, 6 BNA OSHC 1562, 1978 CCH OSHD P22,702 (No. 77-3170, 1978).


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Informer's Privilege

The Secretary claims that the information sought is outside the scope of permissible discovery because it is protected by the informer's privilege. The informer's privilege is the well-established right of the government to withhold from disclosure the identity of persons furnishing information on violations of law to law-enforcement officers, e.g., Roviaro v. U.S., 353 U.S. 53 (1957); Hodgson v. Charles Martin Inspectors of Petroleum, Inc., 459 F.2d 303 (5th Cir. 1972), and it applies to proceedings before the Commission. Stephenson Enterprises, Inc., supra. n7 Quality Stamping contends that the privilege is inapplicable to the unidentified informer in this case because (1) he was neither an employee nor a representative of employees of the Respondent and (2) his motive was to harass the Respondent, rather than to aid in enforcement of the law.

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n7 Quality Stamping asserts that Commission Rule 11, 29 C.F.R. 2200.11, concerning the protection of trade secrets and other confidential information, precludes the Commission from sustaining a claim of informer's privilege because the rule does not specifically provide for the protection of informers. However, Rule 11 deals exclusively with trade secrets and related types of confidential information protected by 18 U.S.C. 1905 (1970). In contrast, Federal Rule 26(b) explicitly deals with privileged information and the cases interpreting this rule have long included the informer's privilege among the privileges covered by the rule. See Wright & Miller, Federal Practice and Procedure, 2019 at p. 155 (1970). Under section 12(g) of the Act, 29 U.S.C. 661(f), the Federal Rules of Civil Procedure govern our proceedings in the absence of a specifically applicable Commission rule. 29 C.F.R. 2200.2(b).


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With respect to the informer's relationship to Quality Stamping, the Commission indicated in Stephenson Enterprises that one purpose of this privilege in Commission proceedings is to protect employees from retribution by their employers. n8 However, the Commission also noted that the privilege serves another important purpose -- the protection of the free flow of enforcement information to government officials charged with the enforcement of the Occupational Safety and Health Act. n9 The public interest in protecting persons who disclose alleged OSHA violations to appropriate officials exists regardless of the relationship of the informer to the employer alleged to be in violation of the Act. Courts have long recognized the duty of every citizen to cooperate in the enforcement of the law and have encouraged the fulfillment of that obligation by preserving the anonymity of the person supplying information concerning alleged violations. Roviaro v. U.S., supra, 353 U.S. at 59-60; Wilson v. U.S., 59 F.2d 390, 392 (3d Cir. 1932); Mitchell v. Bass, 252 F.2d 513, 516 (8th Cir. 1958). [*12] Therefore, we hold that the privilege is applicable to any person furnishing information to governmental officials as to violations of the Act or its implementing standards and regulations, regardless of the informer's employment relationship to the cited employer. n10

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n8 See also 29 U.S.C. 660(c).

n9 This free flow of enforcement information to governmental officials is critical to timely government action to remove employees from the risk of exposure to hazardous workplace conditions, particularly imminent dangers, 29 U.S.C. 662(a).

n10 The Secretary's interest in withholding the identity of an employee or a representative of employees is to be given great weight. Stephenson Enterprises, Inc., supra. The lack of an employment relationship between the informer and the employer may reduce the equities supporting the protection of the informer's identity.

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With respect to an informer's wrongful motive, the Commission has held that an inspection is valid under the broad authority of section 8(a) [*13] of the Act even if made pursuant to a complaint by a person who is neither an employee nor a representative of employees and whose purpose assertedly is to "harass" the employer. Aluminum Coil Anodizing Corp., 77 OSAHRC 70/A2, 5 BNA OSHC 1381, 1977-78 CCH OSHD P21,789 (No. 829, 1977). An individual prompted by improper or wrongful motives nonetheless may supply valid information regarding alleged violations of the Act and the informer's wrongful motive does not negate the validity of the informer's information. Furthermore, the basic governmental protection afforded informers is not appropriately conditioned on the informer's motives when there are other means to prevent harassment of employers from the misuse of the enforcement process by private parties such as competitors or disgruntled employees. Several means of protection are available. Employers are afforded protection by the Secretary's instructions to his field representatives regarding complaint procedures. OCCUPATIONAL SAFETY AND HEALTH ADMINISTRATION, U.S. DEPT. OF LABOR, FIELD OPERATIONS MANUAL Chapter VI, para. E.3 (1974, as amended); See Aluminum Coil Anodizing Corp., 77 OSAHRC 70/E7, 1 BNA OSHC 1508, [*14] 1973-74 CCH OSHD P17,185 (No. 829, 1974). The employer is entitled to constitutional protection from unreasonable searches by means of a search warrant or its equivalent. Marshall v. Barlow's, Inc., 436 U.S. 307 (1978). Moreover, the employer may be entitled to relief from the Commission based on the Secretary's failure to conduct the inspection consistent with the requirements of section 8(a)(2). See note 6, supra. Accordingly, we hold that the privilege is applicable even though the informer is motivated by a wrongful purpose such as harassment of the employer. n11

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n11 It also is important to note that the limitation on disclosure created by the informer's privilege does not limit the duty of the Solicitor's Office to disclose exculpatory evidence to the Respondent. See AMERICAN BAR ASSOCIATION, CODE OF PROFESSIONAL RESPONSIBILITY, DR 7-103(B), EC 7-13 (1976).

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Although the informer's privilege generally applies to the unidentified informer in this case, the informer's privilege is not absolute. [*15] As the Commission recognized in Stephenson Enterprises, the privilege is qualified and must yield upon pain of dismissal if on balance an employer's need for the information to prepare its defense outweighs the Secretary's interest in withholding the identity of the informer. Quality Stamping urges that it needs this information to prove that it has been denied due process and has been subjected to harassment and ultra vires government action. However, our determination that releasing the identity of the informer to Quality Stamping could lead to information relevant to Quality Stamping's defense that the compliance officer initiated the inspection in bad faith does not establish as a matter of law that the Respondent's need for the information outweighs the Secretary's interest in maintaining a free flow of information regarding OSHA violations.

Quality Stamping has not shown that it needs the informer's identity to prove any of its factual assertions other than the claim that the informer's own motives for filing his complaint were wrongful. n12 However, as indicated above, even if Quality Stamping established that the informer filed his investigative complaint for [*16] the purpose of harrassing Quality Stamping, we would not find the inspection invalid or the informer's privilege inapplicable on that basis. Moreover, a determination of the informer's motive is unnecessary in order to resolve any of Quality Stamping's remaining factual assertions and legal defenses. Quality Stamping has not shown that it needs the informer's identity to prove its assertion that the compliance officer acted improperly or in bad faith. There is no direct or circumstantial evidence that the compliance officer acted improperly or in bad faith. Moreover, there is no direct or circumstantial evidence at this point in the proceeding to demonstrate that the informer has information concerning the compliance officer's conduct. Thus, in balancing the government's interest in maintaining the informer's privilege against the employer's need to know, the employer must show more than relevancy under Federal Rule 26(b)(1). In this case, the record reveals only a bare assertion that the informer could aid Quality Stamping in establishing that the compliance officer acted improperly or in bad faith.

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n12 We specifically note that the present record contains evidence supporting its assertions that the informer was not an employee of Quality Stamping or a representative of its employees and that the compliance officer conducted the inspection in response to the investigative complaint without independently determining that there were adequate grounds for the inspection. Quality Stamping's assertion that the statements made in the investigative complaint were without merit could, if true, be established by introducing the testimony of any person familiar with its power punch presses. Therefore, it is clear that Quality Stamping has not shown a need for obtaining the informer's identity in order to establish any of these assertions.

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Therefore, based on the record as it now stands, Quality Stamping has shown no special circumstances that would allow a finding that the informer's identity, including his relationship to Quality Stamping, is so essential to its defense that it outweighs the Secretary's interest in preserving the confidentiality of the information. Indeed, the Respondent's [*18] interest in the information is "rather speculative at this stage." Stephenson Enterprises Inc., supra. However, since the hearing is not concluded, it is possible that further evidence will emerge showing that the informer's identity is essential to a defense asserted by Quality Stamping. In that event, it would be the duty of the judge to reweigh the conflicting interests of the parties with respect to the disclosure of the informer's identity.

The Secretary's objections to the Respondent's interrogatories of May 24, 1978, are sustained, and the case is remanded for further proceedings consistent with this decision. It is so ORDERED.