UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

SECRETARY OF LABOR,
Complainant,
v.	OSHRC DOCKET NO. 76-1481
MASSMAN-JOHNSON (LULING), A JOINT VENTURE, MASSMAN CONSTRUCTION CO., AND AL JOHNSON CONSTRUCTION CO.,
Respondent.

May 2, 1980

DECISION

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

BY THE COMMISSION:

A decision of Administrative Law Judge Henry F. Martin, Jr., is before the Commission for review under section 12(j) of the Occupational Safety and Health Act of 1970, 29 U.S.C. §§ 651–678 (‘the Act’). The issue is whether the judge erred in dismissing the complaint based on the Secretary’s refusal to disclose to the Respondents statements taken by the Secretary from certain prospective witnesses in the case.

On March 10, 1976, Respondent Massman-Johnson (Luling) (hereinafter ‘the joint venture’) was issued a citation alleging a ‘willful-serious’ violation of the Act for failure to comply with the construction safety standard at 29 C.F.R. § 1926.605(d)(3). That standard required, among other things, that ‘. . . employees walking or working on the unguarded decks of barges shall be protected with U.S. Coast Guard-approved work vests or buoyant vests.’ The pleadings indicate that the citation was issued following an investigation of a fatal accident at the Respondents’ worksite on the Mississippi River in Louisiana, in which one of the joint venture’s employees fell from a barge into the river. The joint venture filed a notice of contest, and the Secretary in his complaint, filed on April 22, 1976, added Massman Construction Co. and Al Johnson Construction Co. individually as Respondents.[1] The case was assigned to Judge Martin for hearing. He requested witness lists and a brief summary of each witness’s testimony from the parties and set a date for the hearing on the merits, which subsequently was rescheduled for September 30, 1976. The Secretary submitted his response to the judge’s requests on August 6, and the Respondents submitted their response on August 27. Included on the Secretary’s witness list were five persons who apparently had been employees of the joint venture at the time of the accident.

Also on August 6, 1976, the joint venture moved for the Secretary’s production of various documents including the compliance officer’s report and notes. On August 16, 1976, the Secretary filed his response, indicating that he would not produce certain of the materials requested, including ‘any material relating to the identities and statements of informants on the grounds that such identities and statements are privileged.’ The same day, and before receiving the Secretary’s response, Judge Martin by letter stated: ‘Respondent’s request for the production of documents is reasonable and complainant is directed to comply with it by August 20, 1976.’ On August 20, the Secretary turned over the requested material with the exceptions he had previously noted.

The joint venture moved to dismiss the complaint based on the Secretary’s failure to produce certain of the materials. On September 2, 1976, the Secretary moved for a protective order to prevent inquiry into the material withheld. At a hearing on the motions on September 15, 1976, Judge Martin, based on an in camera inspection of the documents, ordered that the Secretary turn over to the Respondents three days before the hearing the factual statements obtained from his prospective witnesses. The Judge named the individuals involved. The hearing on the merits later was continued to October 13, 1976, and the judge on October 5 again ordered disclosure of the statements four days before the new hearing date.1a

At the hearing on the merits on October 13, the judge held a further in camera inspection of the witness statements. The Secretary admitted that two of the alleged informers, Fowler and Englehart, were management personnel. Fowler was the ironworker superintendent and Englehart was the project manager. The Secretary’s counsel stated that copies of their statements had been released to those two employees the day before the hearing, and the Respondents’ counsel acknowledged that those statements were available to the Respondents by the time of the hearing. The statements of the other employees were not released. One of the latter employees had left the joint venture’s employ by the time of the hearing. At the hearing, the Secretary argued that the statements withheld were covered by the informer’s privilege and that they should not be required to be disclosed until after the witness actually had testified on direct examination.2 When asked by the judge which of the prospective employee-witnesses he contended were informers, the Secretary’s counsel answered, ‘We contend they all are.’

On November 15, 1976, Judge Martin filed his decision dismissing the case for failure of the Secretary to comply with his second disclosure order, entered on October 5. He rejected the Secretary’s argument that he had no duty to turn over the statements until the witnesses involved had testified on direct examination at the hearing. The judge found that there was no contention that any prospective witness who had given a signed statement to the Secretary had instigated the investigation, filed a complaint with OSHA officials, informed the Secretary that the Respondents had violated on OSHA standard, or was a confidential informer. He also concluded, based on an in camera inspection, that none of the statements contained any confidential information and that the statements revealed no reason why they should be withheld until after the witnesses testified.

The judge further held that, even if the witnesses were informers, their names had been disclosed in the list of potential witnesses submitted by the Secretary and there remained no need for preserving the confidentiality of their statements. The judge also concluded that the Respondents had shown a need for the statements.

On review, the Secretary argues that none of the witness statements should have been ordered disclosed until the witness involved had testified on direct examination, absent a particularized showing by Respondents of a need for the statements in advance. He argues that the Respondents have made no such showing of need for any of the statements and that his submission of a witness list did not constitute a waiver of the privilege. The Secretary also argues that the judge should not have revealed which of the Secretary’s prospective witnesses had submitted written statements. In any event, the Secretary urges that dismissal of the case is too severe a sanction, even assuming that he was not justified in withholding the statements.

The Respondents urge the Commission to affirm the judge’s decision for the reasons given by him. They also argue that the informer’s privilege does not apply to management personnel. The Respondents contend that the Secretary waived the privilege by disclosing his prospective witnesses and by claiming that they are all informers. Respondents further argue that waiver was effected in that the Secretary refused to give one employee a copy of his statement despite the employee’s request. They also contend that there is no further need for confidentiality as to the witness statements because the judge identified the persons who had given them in his September 15, 1976 order. They argue that two of the Respondents, Massman Construction Co. and Al Johnson Construction Co., never employed the alleged informers and therefore no protection is needed against retaliation by these Respondents. Finally, Respondents argue that they would be prejudiced if the case were remanded for hearing at this time. They contend, essentially, that the job in question has been completed and that the persons who would testify for them are no longer in their employ and have dispersed throughout the country. In short, Respondents claim that certain witnesses are no longer available to testify. For these reasons, the Respondents urge the Commission to uphold the judge’s dismissal of the case.3

I

The informer’s privilege is the well-established right of the government to withhold from disclosure the identity of persons furnishing information of violations of the law to law-enforcement officers. The privilege applies to proceedings before the Commission. Quality Stamping Products Co., 79 OSAHRC 28/F11, 7 BNA OSHC 1285, 1979 CCH OSHD ¶23,520 (No. 78–235, 1979); Stepheson Enterprises, Inc., 2 BNA OSHC 1080, 1973–74 CCH OSHD ¶18,277 (No. 5873, 1974), aff’d, 578 F.2d 1021 (5th Cir. 1978). The justification for the privilege is the public interest in the free flow of information to the government concerning violations of law and the protection of informants from retaliation. The privilege is qualified, however, and where the disclosure is essential to the fair determination of a case, the privilege must yield or the case will be dismissed. Quality Stamping, supra; Stephenson Enterprises, supra.

In Quality Stamping, the Respondent sought the name and relationship to Respondent of a person who had given a statement to the Secretary concerning allegedly hazardous conditions in the Respondent’s plant. We held that the qualified privilege applied to that information. In the case before us, however, the issue is whether the Respondents are entitled to the actual statements given to the government by prospective witnesses in the case. The Respondents contend that the informer’s privilege does not protect the contents of statements themselves. The Secretary argues that the privilege protects the contents of statements to the extent they would tend to reveal the persons giving them as informers, by virtue of whether the information was given reluctantly or voluntarily, whether the tone or manner of the statements was friendly or unfriendly to the Respondent, and whether the information was accusatory or favorable. See Hodgson v. Charles Martin Inspectors of Petroleum, Inc., 459 F.2d 303 (5th Cir. 1972); Wirtz v. B.A.C. Steel Products, Inc., 312 F.2d 14, 16 (4th Cir. 1962).

The information sought by the Respondents must be relevant to the subject matter of the case before the question of privilege is reached. Quality Stamping, supra; Stephenson Enterprises, supra. The scope of discovery in Commission proceedings is governed by Rule 26(b)(1) of the Federal Rules of Civil Procedure (‘Fed. R. Civ. P.’), 28 U.S.C., which provides that, in general, parties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter of the pending action. Here, there is no dispute that the information contained in the witness statements is relevant to the events surrounding the alleged violation. Thus, we proceed to determine whether the qualified informer’s privilege applies.4

The burden of proving the facts in support of the privilege rests with the Secretary. Stephenson Enterprises, Inc., supra. The privilege is applicable to any person furnishing information to government officials concerning violations of the Act or its implementing standards and regulations, regardless of the informant’s employment relationship to the cited employer. Quality Stamping, supra. Here, the Respondents seek statements given to the government by certain prospective witnesses concerning the case. Under our holding in Quality Stamping, the qualified privilege clearly applies to protect the identity of persons giving such statements. Thus, the fact that the individual companies, as opposed to the joint venture, did not employ the persons involved does not make the privilege inapplicable.

Nor is the privilege applicable only to those persons who actually instigate investigations or act as confidential accusers in the criminal sense. It is the duty of every citizen to cooperate in the enforcement of the law and the privilege encourages the fulfillment of that obligation by preserving the anonymity of government sources generally. Quality Stamping, supra.

The fact that two of the prospective witnesses are management personnel likewise does not render the privilege inapplicable. Supervisory and managerial personnel in some cases may be the only persons who could be aware of the existence of violations. They are entitled to the protection of the informer’s privilege when communicating information concerning workplace hazards to the government.5

II

Because the informer’s privilege applies to the prospective witnesses in this case, we must determine the propriety of the judge’s action in ordering disclosure of their statements before the hearing. We hold that he erred in so doing.

The judge found that the employees involved were not ‘confidential informants.’ As noted above, however, the mere fact that they supplied information relevant to the investigation of alleged OSHA violations makes the privilege applicable. The judge also found that none of the statements contained any privileged or confidential information. The essence of the informer’s privilege, however, is the protection of the informer’s identity, and the confidential information in a statement is that which tends to indicate that the person giving it has cooperated with the government against the employer. As the Secretary points out, the identity of an informer might be revealed from the disclosure of even a basically factual statement relevant to an investigation, for example, if the tone and manner of the statement were accusatory or unfriendly to the respondent. See Hodgson v. Charles Martin Inspectors of Petroleum, Inc., supra; Wirtz v. B.A.C. Steel Products, Inc., supra. .the judge should have centered his analysis on the issue of protecting of the informers’ identities rather than the nature of the information itself.

The judge further ruled that even if the prospective witnesses are informers, the Secretary waived the confidentiality of their statements when he submitted their names on his witness list. It is generally held that where the government voluntarily reveals the identity of informers, the privilege ceases to exist. Mitchell v. Bass, 252 F.2d 513 (8th Cir. 1958); Hodgson v. Charles Martin Inspectors of Petroleum, Inc., supra. It also has been held that submission of a witness list is a waiver of the confidentiality of statements taken from the witnesses involved, at least as to material that does not identify the statement-giver as an informer. See, e.g., U.S. v. Julius Doochin Enterprises, Inc., 370 F. Supp. 942 (M.D. Tenn. 1973); See also Mitchell v. Bass, supra.

Some cases, however, have distinguished between furnishing a list of witnesses, on the one hand, and disclosing who among those witnesses had given the government statements, on the other. In Wirtz v. Robinson & Stephens, Inc., 368 F.2d 114 (5th Cir. 1966), a case under the Fair Labor Standards Act (FLSA, 29 U.S.C. §§ 201–219, the Court held that it was error to require the Secretary to designate, ten days before trial, which of his prospective witnesses had given written statements concerning the alleged violations. The court held that such an order went beyond the mere requirement of a witness list or a pretrial description of the subject matter of each witness’s testimony. It held that such an order tended toward disclosure of informers and that there would be little, if any, facilitation of the trial as a result of such disclosure.

In Hodgson v. Charles Martin Inspectors of Petroleum, supra, another FLSA case, the Secretary refused to comply with a discovery request by the defendant employer for copies of written statements taken from present and former employees for whom claims were being made. The Secretary did, however, give the names of all employees who were the subject of claims and provided considerable other information concerning those claims. The trial court ordered disclosure of the statements involved, but was reversed. The court of appeals indicated that the statements might reveal such things as whether the persons involved had cooperated voluntarily or only reluctantly with the government and that their disclosure might increase the risk of reprisals by the defendant. The court concluded that the statements were still subject to the privilege except as to those employees who had been specifically identified by the Secretary as informers.

We agree with the reasoning of the Robinson & Stephens and Charles Martin cases. The judge certainly has the authority to require a witness list and a summary of the expected testimony of each witness before the hearing on the merits, in the interest of orderly hearing procedure. Wirtz v. Hooper-Holmes Bureau, Inc., 327 F.2d 939 (5th Cir. 1964); See Wirtz v. Robinson & Stephens, supra. The judge did so here. To the extent that the Bass or Julius Doochin Enterprises cases may be read to hold that submission of a witness list is a waiver of the informer’s privilege, we disagree. We hold that submission of a witness list or a summary of prospective witnesses’ testimony does not constitute a waiver of the confidentiality of the identities of informers or their statements.

III

On review, the Respondents argue that the Secretary, by his counsel’s statements, voluntarily revealed the identity of the employees involved as informers and thus waived any privilege. The Respondents apparently are referring to the reasons the Secretary gave for withholding the statements. For example, the Secretary’s counsel specifically stated that he would not comply with the Respondents’ motion for production to the extent that it requested ‘material relating to the identities and statements of informants . . ..’ This statement does not indicate that the Secretary voluntarily revealed the identity of any employees he seeks to protect as informers. Rather, it appears that such statements by the Secretary’s counsel were made merely in order to clearly assert the informer’s privilege.

On September 15, 1976, Judge Martin ordered the Secretary to turn over the factual statements obtained from the witnesses he had listed. The Respondents point out that the judge, at the time he ordered the production of the statements, disclosed the identities of the persons to whom the Secretary argued the privilege was applicable. Therefore, Respondents argue, there is no further need for confidentiality. In essence, they claim, the privilege has been waived. We disagree. The judge’s action on September 15, 1976, left the Secretary essentially no choice except to either turn over all of the statements or withhold them on the grounds that all persons involved were informers. Thus, for example, when the Secretary stated at the October 13, 1976 hearing that he contended all the prospective employee-witnesses were informers, the Respondents already knew that information because of the judge’s order of September 15, 1976. In the circumstances, the Secretary’s assertions following the judge’s disclosure on September 15, 1976, as well as those at the October 13, 1976 hearing cannot be construed as a voluntary waiver of the informer’s privilege.

IV

Since we find that the informer’s privilege applies to the statements in question and that there has been no general waiver of the privilege by the Secretary, we must determine whether the Respondents have shown ‘special circumstances which justify withdrawing the qualified privilege from the Secretary.’ Stephenson Enterprises, supra. As stated above, this determination involves balancing the public interest in protecting the free flow of information against the Respondents’ need to prepare their defense.

The application of the balancing test necessarily involves the exercise of discretion. Various approaches have been suggested by the U.S. Circuit Courts of Appeals. The Fourth Circuit, in an FLSA case, has stated:

the qualified privilege must give way shortly before and during trial of an actual enforcement proceeding to the extent that fairness requires the Secretary to furnish lists of prospective witnesses and written statements from them.

U.S. v. Hemphill, 369 F.2d 539, 542 (4th Cir. 1966). The court indicated that it would hold the government to the same disclosure requirements mandated for private litigants under the Federal Rules of Civil Procedure. The issue in that case, however, involved a discovery request by the employer, and the request was denied. The Fifth Circuit, as noted above, has held that it is error to require the Secretary to designate, ten days before trial, which prospective witnesses have given him written statements. Wirtz v. Robinson and Stephens, Inc., supra.

In a comprehensive consideration of the balancing test and the timing of disclosure of witness statements, the Eighth Circuit Court of Appeals, in another FLSA case, left to the trial court’s discretion the choice of an appropriate time for their disclosure. Brennan v. Engineered Products, Inc., 506 F.2d 299 (8th Cir. 1974). The court suggested three possible courses of action. One alternative would be to allow the defendant to examine a witness statement only after the witness has taken the stand at the hearing and completed testifying on direct examination. This is essentially the rule in federal criminal cases under the Jencks Act, 18 U.S.C. § 3500 (1970). The court suggested that this approach might be adequate where the only possible use of the statement would be for impeachment purposes. A second suggested alternative would be to order pretrial disclosure of only a summary of the evidence that will be presented by each witness the parties propose to call, and not the statements themselves. See Wirtz v. Robinson & Stephens, Inc., supra; Wirtz v. Hooper-Holmes Bureau, Inc., supra. Such pretrial disclosure would not include designation of which potential witnesses gave statements to the government or the statements themselves. A third alternative would be to order production of the statements themselves either at the same time a witness list is ordered, see U.S. v. Julius Doochin Enterprises, Inc., supra, or at a shorter time before the witness’s appearance. See, e.g., U.S. v. Kelsey-Hayes Wheel Co., 15 F.R.D. 461 (D. Mich. 1954) (twenty-four hours in advance of testimony). The court suggested that if the third alternative were followed, the trial court should consider making appropriate deletions of material tending to identify statement-givers who would not be witnesses.6 The Eighth Circuit also said:

[W]e urge the [trial] court to take seriously the government’s reasons for desiring to withhold the statements as long as possible. The government’s counsel has asserted that the Secretary is constantly losing witnesses in FLSA actions, and that he wishes to limit the period of potential or even imagined harassment.

506 F.2d at 305.7

The United States Supreme Court has voiced a similar concern over possible witness harassment due to premature disclosure of witness statements in NLRB v. Robbins Tire and Rubber Co., 437 U.S. 214 (1978). The Court upheld the refusal by the National Labor Relations Board (NLRB) to turn over witness statements before trial pursuant to the Respondent’s request under the Freedom of Information Act (FOIA), 5 U.S.C. § 552 (1978). The Court ruled that the statements were protected from disclosure under Exemption 7(A) of FOIA, which provides that disclosure is not required of ‘matters that are . . . investigatory records compiled for law enforcement purposes, but only to the extent that the production of such records would . . . interfere with enforcement proceedings;’ 5 U.S.C. § 552(b)(7)(A).8 The Court noted that the most obvious risk of interference from pretrial disclosure of the statements would be pressure by the employer or union involved on the employees or others to change their testimony or discourage them from testifying. It noted that the danger of witness intimidation was particularly acute with respect to current employees, and stated that Congress, in drafting the current version of the exemption, specifically intended to avoid giving a party litigant earlier and greater access to the NLRB’s case than the party otherwise would have.9

As noted above, the scope of prehearing discovery in Commission proceedings is governed by Rule 26(b)(1) of the Federal Rules of Civil Procedure. Discovery under that rule is subject to certain limitations including the provisions of Federal Rule of Civil Procedure 26(b)(3).10

Even where there is no question of the informer’s privilege involved, witness statements may be subject to the provisions of Federal Rule of Civil Procedure 26(b)(3). That Rule provides that documents prepared by or for a party’s representative in anticipation of litigation or for trial are not discoverable except upon a showing that the party seeking discovery has substantial need for the materials in the preparation of its case and that it is unable without undue hardship to obtain the substantial equivalent of the materials by other means. Rule 26 defines the scope of discovery for all discovery devices. 9 Wright & Miller, Federal Practice and Procedure, § 2452. Thus, if materials are not discoverable under Federal Rule 26, they would not be subject to prehearing disclosure under the prehearing conference provisions of Federal Rule of Civil Procedure 16, 6 Id., § 1528, and would not be subject to a subpena duces tecum under Federal Rule of Civil Procedure 45(d)(1). 9 Id., § 2452.

Where the Secretary’s representatives take statements from persons in connection with an ongoing investigation of alleged violations of the Act, they do so in anticipation of litigation or for trial. Thus, such statements are not subject to disclosure without a showing of need and inability to obtain the information by other means without undue hardship, regardless of whether the informer’s privilege applies. U.S. v. Chatham City Corp., 72 F.R.D. 640 (S.D. Ga. 1976); See Alltmont v. U.S., 177 F.2d 971, 976 (3d Cir. 1950), cert. denied, 339 U.S. 967 (1950); 8 Wright & Miller, Federal Practice and Procedure, § 2024, at 204–206 (1970); But see Ft. Howard Paper Co. v. Affiliated F. M. Ins. Co., 64 F.R.D. 694 (D.C. Wis. 1974).

V

Considering the possibilities for identification and intimidation of prospective witnesses based on pretrial disclosure of their statements, the limits on disclosure under Federal Rule of Civil Procedure 26(b)(3), and the practices in NLRB and FLSA cases, we conclude that on balance the identities of persons who have given the government statements regarding alleged OSHA violations that are the subject of an ongoing investigation along with the contents of the statements themselves should not be required to be disclosed before the hearing unless the respondent shows that the information is essential to prepare adequately for the hearing and that it is unable to obtain the information by other means.11

Generally, the respondent is entitled through discovery to all the relevant facts, not privileged, regarding the issues in the case. Fed. R. Civ. P. 26(b)(1). In the usual case, the identity of government informers will be irrelevant to the issues, and the facts contained in statements may be obtained by other means. In such cases, no disclosure of the informers’ identities or the prospective witnesses’ statements should be permitted. In the unusual case where the informer’s identity is somehow relevant to the issues, e.g. Quality Stamping, supra, or where a respondent is unsuccessful in obtaining the facts contained in statements by other means, the respondent is entitled to the information requested to the extent necessary to prepare adequately for the hearing on the merits.

During the hearing itself, different considerations come into play. The respondent is entitled to an opportunity for full and effective cross-examination of each witness. This includes an opportunity to test the veracity and accuracy of a witness’s testimony against prior statements by that witness on the same subject. The Jencks Act approach suggested as an alternative in Brennan v. Engineered Products, supra, recognizes this need by permitting the respondent access, upon request, to all of a witness’s prior statements in the government’s possession that relate to the subject matter of the witness’s testimony, after the witness has testified on direct examination. See also U.S. v. Bostic, 336 F. Supp. 1312 (D.S.C. 1972), aff’d, 473 F.2d 1388 (4th Cir. 1972), cert. denied, 411 U.S. 966 (1973). As noted above, the NLRB has a rule essentially similar to the Jencks Act. 29 C.F.R. § 102.118 (1976). We hold that respondents in proceedings before the Commission are to be accorded the same opportunity.

Thus, when a witness has completed testifying for the Secretary on direct examination, the Secretary shall, upon motion by a respondent, turn over to it all the witness’s prior statements that are in the government’s possession and that relate to the subject matter of the witness’s testimony. If the Secretary claims that a statement contains material that does not relate to the subject matter of the witness’s testimony, the judge shall order the Secretary to deliver the statement for the judge’s inspection in camera. The judge shall excise the portions of the statement that do not relate to the subject matter of the witness’s testimony, with one exception: The judge may, in his discretion, decline to excise any portion that is relevant to other matters raised by the pleadings. After making the appropriate excisions, the judge shall direct delivery of the statement to the respondent and, if the respondent objects to any excisions, the portions involved shall be preserved by the Secretary pending possible review by the Commission or appeal to the courts of the judge’s decision.

The Respondent shall be entitled to a recess for such reasonable time as is necessary to evaluate a statement and prepare to use it in the hearing. In the event that a statement disclosed at the hearing contains material that the respondent could not have discovered previously and that bears on the issues in the case, the respondent shall be entitled upon request to a recess or continuance for such time as is reasonably necessary to meet or take advantage of the new evidence.

VI

The Respondents urge that in accident cases such as this, where eye-witness testimony is crucial, it is of overriding importance that all witnesses’ statements be turned over before trial. The crucial nature of that testimony also points out, however, the importance of encouraging eye-witnesses to come forward and of preserving their confidential relationship with the Secretary, unless sufficient need for the statements themselves is shown by the Respondents.12

The Respondents also argue that where a statement is inaccurate or incomplete, the employer more time to marshal a defense against it than is possible when the statement is withheld until the informer takes the stand. Since the Respondents have the right to discover the facts known by each person regarding the alleged violation, the problem of surprise at trial due to the contents of a witness statement may not arise. If it does, any unfair surprise may be cured by a recess or continuance.

The Respondents contend that the sounder policy generally is to require disclosure of witness statements before the hearing. They point out that if the Secretary believes that certain portions of the statement should be deleted, an in camera proceeding can be held so that the judge, not the Secretary, may make the determination. The in camera procedure is useful in resolving sensitive questions of privilege, but a rule requiring pretrial disclosure of witness statements generally, even with deletions, may result in unnecessary disclosure of informers’ identities. It also would be inconsistent in many cases with Federal Rule of Civil Procedure 26(b)(3). Finally, such a prehearing disclosure rule might lead to extensive in camera proceedings and place an unwarranted administrative burden upon judges.

At the October 13, 1976 hearing, the Respondents mentioned for the first time that one prospective witness had been unable to remember the facts when interviewed by them. They asserted that they were entitled to his statement on that basis. There is no indication, however, that they attempted to take the witness’s deposition or otherwise interrogate him pursuant to the appropriate discovery channels.

Generally, a respondent is not entitled to relief on the grounds of inability to gain discovery from a witness unless proper discovery has first been attempted from that witness through one of the methods prescribed in the Federal Rules of Civil Procedure or the Commission’s Rules of Procedure, 29 C.F.R. Part 2200. See Wirtz v. B.A.C. Steel Products, Inc., supra. The Respondents attempted discovery of the witness’s statement pursuant to those rules. They were not, however, entitled to discovery of the statement unless they were unable to gain the relevant facts through the witness himself by appropriate discovery channels. This they did not attempt to do, although they knew the Secretary opposed any disclosure of the statement.13Furthermore, the Respondents did not raise the issue until the hearing. A discovery matter such as inability to obtain discovery of a witness should be raised at the discovery stage. There is no indication that the issue could not have been raised at that stage. In the circumstances, the Respondents are not entitled to relief based on the failure of a prospective witness to remember the facts when interviewed. See Wirtz v. B.A.C. Steel Products, Inc., supra.

The Respondents also claim that one witness (apparently the same one who did not remember the facts) requested a copy of his statement and that the Secretary refused to comply with the request. Such a request might constitute a waiver of the confidentiality of the statement, depending on the circumstances. The informer’s privilege belongs to the government, but it is waived if the informer has voluntarily disclosed his identity. Westinghouse Electric Corp. v. City of Burlington, Vt., 351 F.2d 762, 771 (D.C. Cir. 1965); Clark v. Pearson. 238 F. Supp. 495 (D.C.D.C. 1965). The Respondents are entitled to the opportunity to prove a voluntary waiver by the employee. If it is shown that the employee voluntarily wished to let the Respondents see his statement, knowing of his right of confidentiality, the statement should be ordered disclosed. See generally 92 C.J.S. Waiver (1955). If the Secretary still refuses to turn over the statement, the judge may take appropriate action under Commission Rule 54, 29 C.F.R. § 2200.54.14

The Respondents argue that they would be gravely prejudiced if the judge’s decision is reversed and the case remanded for a hearing on the merits of the violation. More than three years have elapsed from the time of the first hearing. The Respondents indicate that construction at the jobsite in question has been completed, that the Respondents have no work in the area, and that all their employees at the old site have been terminated and are dispersed throughout the country. In short, Respondents believe these former employees may be unavailable to testify. Of course, the Secretary presumably would have no less difficulty obtaining witnesses than the Respondents. In any event, the Respondents have not suffered legal prejudice in this case. The Respondents knew they were still subject to suit even when the case was on appeal. If they feared losing witnesses, they could have proffered the witnesses’ testimony at the original hearing or requested leave to take depositions to preserve the testimony pursuant to Commission Rule 53. See Federal Rule of Civil Procedure, 30(a). Having not acted to preserve the testimony earlier, the Respondents may not new have the case dismissed because of the possible unavailability of the testimony. This case will be ordered expedited on remand, however.

VII

In summary, we hold that the public interest in keeping confidential both the identities of persons who have given the government statements regarding alleged OSHA violations that are the subject of an ongoing investigation and the contents of those statements outweighs the respondent’s interest in prehearing disclosure unless the respondent shows that the information is essential to its preparation for the hearing and that it is unable to obtain the information by other means. The need to effectively cross-examine a witness is not sufficient justification in and of itself for prehearing disclosure of such a witness’s statement. After a witness has completed testifying on direct examination, however, respondents are entitled, upon request, to obtain copies of all statements in the government’s possession relating to the subject matter of the witness’s testimony.

Under no circumstances should the judge reveal the identities of persons who have given such statements to the government, or the contents of any such statements, over the Secretary’s objection. The judge may make appropriate orders, however, in the event of unjustified refusal to comply with disclosure requirements, including dismissal of the action if necessary.

In this case, there has been no particularized showing of need for any of the statements themselves before the hearing sufficient to outweigh the strong public interest in protecting the confidentiality of government sources. The Respondents will have an opportunity on remand, however, to show a waiver of the privilege by one employee on the grounds that he requested a copy of his statement, as discussed above.

Accordingly, the judge’s decision is reversed and remanded for proceedings consistent with this decision. This case is ordered for expedited proceedings on remand, pursuant to 29 C.F.R. § 2200.101.

It is so ORDERED.

FOR THE COMMISSION:

Ray H. Darling, Jr.

Executive Secretary

DATED: MAY 2, 1980

UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

SECRETARY OF LABOR,
Complainant,
v.	OSHRC DOCKET NO. 76-1481
MASSMAN-JOHNSON (LULING), A JOINT VENTURE, MASSMAN CONSTRUCTION CO., AND AL JOHNSON CONSTRUCTION CO.,
Respondent.

November 15, 1976

ORDER DISMISSING PROCEEDING

MARTIN, Judge:

This proceeding was brought pursuant to section 10 of the Occupational Safety and Health Act of 1970, contesting an alleged ‘willful-serious’ citation issued by complainant against respondent under the authority vested in complainant by section 9(a) of that Act. The citation, issued on March 10, 1976, alleged that an inspection of a work place under the control of respondent revealed the existence of a work place condition violative of section 5(a)(2) of the Act by reason of its failure to comply with section 29 CFR 1926.605(d)(3).[2]

The citation described the alleged violation as follows:

The employer Massman-johnson (Luling)—A Joint Venture—failed to assure that employees walking or working on the unguarded decks of a barge were protected with U.S. Coast Guard approved work vests or buoyant vests in that:

(a) The material barge secured north of Pier #2, West Bank of Mississippi River, JV–120 Luling Bridge Project, I–410, on February 12, 1976, at approximately 9:30 a.m., had employees working on the unguarded deck of the material barge, not protected with U.S. Coast Guard approved work vests or buoyant vests.

After a formal complaint was filed and issue was joined this matter was assigned to the undersigned Judge for a hearing. Prior to the assigned hearing date the parties were directed to exchange witness lists and to furnish a resume of the testimony to be elicited from the witnesses. Each said prepared a list of the prospective witnesses; however, no summary of the testimony was forthcoming. After several settings and postponements for various reasons this matter finally came on for hearing in New Orleans, Louisiana, on October 13, 1976.

At the outset of the hearing respondent moved to dismiss the proceeding arguing that the U. S. Coast Guard had jurisdiction over this matter rather than the Occupational Safety and Health Administration. This motion was taken under advisement. Respondent then moved to dismiss the proceeding because complainant had not complied with the Judge’s order issued under the date of October 5, 1976, whereby the parties were ordered to furnish each other copies of all statements obtained from the witnesses previously identified. This requirement was to be accomplished prior to the hearing date. Instead of complying with this pre-trial order complainant filed a second petition for interlocutory appeal with the Review Commission.[3]

Complainant contended that the statements were obtained from confidential informants and that he could not release the witness statements until after the witnesses had testified on direct examination. Respondent, on the other hand, contended that he needed these statements to properly prepare his case and that complainant’s actions had prejudiced his preparation of the case; that the aforementioned witnesses were not informers and that the proceeding should be dismissed because of complainant’s failure to comply with the Judge’s order, pursuant to Rule 54 of the Commission’s Rules of Procedure.

After careful consideration it is concluded that there is merit to the position taken by respondent. The argument presented by complainant that any worker at the work place, who is interviewed by a compliance officer and gives a written statement as to facts in his possession, is an informer or a confidential informant who must be protected at all costs, has a hollow ring. Complainant does not contend that any witness from whom a signed statement was taken instigated this investigation, filed a complaint with the Occupational Safety and Health Administration representatives, or ‘informed’ and government representative that respondent had committed a violation of a safety or health standard.[4] Complainant admits that these previously named witnesses were interviewed by the compliance officer a day after one of their co-workers had drowned after falling from a barge.

An in camera inspection was conducted relative to the witness statements in question and it was concluded that none of them contained any privileged or confidential information. Further, there is nothing in the statements from which it could be determined that any witness was an actual informer or confidential informant who was ‘informing’ on his employer. It ill behooves the U. S. Government or the Department of Labor to try to hide or withhold from an opposing litigant information which might be helpful to his defense.

Memoranda and statements compiled during an inspection are not to be clothed in secrecy unless an in camera inspection reveals some portion of which might be confidential or privileged. In the latter event any privileged matter could be deleted or excluded. Neither did the in camera examination of the statements reveal and reason why complainant should not release the statements prior to the hearing rather than wait until after the witnesses have testified.

Even if it could by any stretch of the imagination be concluded that the employees who signed statements were ‘informers’, their names were disclosed by complainant as persons who would testify at the trial, and, therefore, there no longer remained any need for privilege or confidentiality. See U.S. of America v. Julius Doochin Enterprises, Inc., 370 F. Sup. 942 (1973), Brennan v. Engineered Products, Inc., 506 F. (2d) 302 (8th Cir. 1974), and Secretary v. Frazee, 4 OSAHRC 188, (1973).[5]

It is here noted that respondent sought injunctive relief in the U.S. District Court for the Eastern District of Louisiana (Docket No. 76–2970) which matter was heard before the Honorable Charles Schwartz, Jr., on October 4, 1976. The injunction was denied on October 12, 1976. A transcript of that hearing was received into evidence and marked as respondent’s R–1. At pages 42 and 43 of the transcript the following appears:

THE COURT: I find it rather difficult to understand the government’s position in this particular regard. I know if you were trying this case before me you would be disclosing all this information, and apparently the Administrative Law Judge is of the same opinion. And I just find it hard to understand the government’s position. I find it very hard to understand why the government who should be more interested in arriving at the ultimate truth of the situation than anyone else wants to prevent a litigant from obtaining this type of information. I find it a very, very bad, and what appears to me a very sharp practice on the part of the government in this case. Apparently you have two Judges who disagree with you. But if you want to take that intransigent position that you are about to assume, and it is very, very hard for me to understand, and frankly speaking, I don’t think the record thus far really shows irreparable injury so far as the injunction is concerned, but when you combine this with it, perhaps this taints the first demand to such an extent that I should grant a T.R.O. as to both.

MR. FITZ: Your Honor, the problem with witness statements, and particularly where the witnesses are employees of the—.

THE COURT: That argument left me when I read your brief, because that argument goes out the minute that you put the first witness on the stand, that argument goes. If that is the reason you won’t give the statements, he is going to find out the minute you put him on the stand. Now, they have said take the part out so that they can’t identify the witness. Let me ask you this. Are those statements necessary to your defense of this case?

WITNESS: Very definitely, your Honor.

THE COURT: Will you be irreparably injured in your defense in this matter if you don’t receive those statements timely?

WITNESS: Your Honor, in my opinion we will be. Your Honor, if I could express in one or two instances we have been * * *.

As the court stated in Bristol-Myers Co. v. F.T.C., 424 F. 2d 935 (D.C. Cir. 1970), a bare claim of confidentiality will not immunize files of a government agency from scrutiny. It is the responsibility of the court to determine the validity and extent of the claim after consideration of the documents in question and of insuring that the exemption is strictly construed. Details as to confidential or secret matter can be deleted so as to render the material subject to disclosure.

It should be noted that this Judge has previously ruled against respondent’s request for access to certain evaluations, instructions, or advice given by the solicitor, opinions, legal theories or interoffice communications between the solicitor and the area office.

After carefully considering the pleadings, arguments of counsel, and after an in camera examination of the documents in question it is concluded that complainant has failed to show that the witness statements were obtained from confidential informants or that the information contained in the statements was privileged. It is also concluded that respondent has shown a need for the requested documents.

The record herein discloses that complainant did not comply with this Judge’s order of October 5, 1976, and further that complainant failed to supply respondent with copies of the signed statements after having been directed to do so at the hearing on October 13, 1976.

In the view of the foregoing, it is ORDERED:

That the complaint be dismissed and that the citation and accompanying notification of proposed penalty be and the same are hereby vacated.

HENRY F. MARTIN, JR.

JUDGE

DATED: November 15, 1976

Dallas, Texas

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[1] In their submissions in response to the Commission’s briefing order the individual Respondents, Massman Construction Co. and Al Johnson Construction Co., take the position that they are not proper parties to this proceeding since they were not issued citations. This issue was neither raised in response to Commissioner Moran’s general direction for review of November 29, 1976, nor is it included in the Commission’s briefing order of November 17, 1978. Accordingly, the issue is not before us on review at this time.

1a The Secretary petitioned the Commission for an interlocutory appeal from the judge’s September 15 ruling, and the Commission denied the petition on September 29. The Secretary also petitioned for interlocutory review by the Commission of the judge’s second disclosure order (entered on October 5), and the Commission denied the petition on October 19.

2 This is the practice in federal criminal cases under the Jencks Act, 18 U.S.C. § 3500 (1970). The National Labor Relations Board has a similar rule. See note 8, infra. Also, it has been held that the principle of the Supreme Court’s decision in Jencks v. United States, 353 U.S. 657 (1957), preserved in the Jencks Act, is applicable to administrative proceedings. Harvey Aluminum, Inc. v. NLRB, 335 F.2d 749 (9th Cir. 1964); Great Lakes Airlines, Inc. v. CAB, 291 F.2d 354 (9th Cir. 1961); Communist Party of United States v. subversive Activities Control Board, 254 F.2d 314 (D.C. Cir. 1958); See Blakeslee-Midwest Prestressed Concrete Co., 77 OSAHRC 191/A2, 5 BNA OSHC 2036, 1977–78 CCH OSHD ¶ 22,284 (No. 76–2552, 1977).

3 The Respondents also argue that the only direction for review in this case, a general direction by former Commissioner Moran, is not a sufficient basis for review. The Commission rejected this contention in its order of January 27, 1977, denying the Respondents’ Motion to Dismiss Direction for Review.

4 The Respondents contend that the Secretary failed to object in timely fashion to the joint venture’s motion for production of documents. They apparently would have us find that the Secretary waived any right to object to revealing information concerning the alleged informers on this basis. The respondents contend that the objections had to be filed within five days of the filing of the motion itself. They further assert that the judge’s order of August 16, 1976, requiring compliance with the motion was based on the lack of a timely government response. The Respondents’ argument apparently is based on Rule 55(b) of the Commission’s Rules of Procedure, 29 C.F.R. § 2200.55(b), which requires that a person served with a subpoena, shall state any objections within five days of service. The motion here was not a subpoena request and was not treated as such. Commission Rule 37, 29 C.F.R. § 2200.37, provides that a party has ten days following service to file a response to a motion. Under that rule, the Secretary’s response of August 16, 1976, was timely. The judge’s order of August 16, 1976, was not properly a determination on the merits of the request for production because it was made before the time permitted for the Secretary’s response. The order was similar to an order permitting discovery and setting time limits for responses under Commission Rule 53, 29 C.F.R. § 2200.53, although that rule relates only to depositions and interrogatories. On August 20, 1976, in compliance with the time limit set by the judge, the Secretary forwarded the documents requested with the exceptions previously noted in his response of August 16. The sequence of discovery in this case reveals no lack of timely objection to revealing the identity of informers, no disobedience by the Secretary of any order prior to September 15, 1976, and thus, no waiver of the informer’s privilege on these grounds.

5 Of course, the nature of the employment relationship between the alleged informer and the respondent, or the lack of such a relationship, may be relevant in balancing the interests the respective parties have in the information. Quality Stamping, supra, at n. 10. Also, we note that in this case the informer’s privilege was waived as to the two managerial employees involved. Respondents’ counsel acknowledged that those employees received copies of their statements from the Secretary the day before the October 13, 1976, hearing, and that the statements were available to the Respondents by the time of that hearing. Thus, the question whether the Secretary could refuse at this time to withhold those particular statements is not before use.

6 The Respondents point out that the court stated that access to witness statements from alleged informers for purposes of impeachment must be handled at the pretrial stage. But the court did not indicate that the statements must actually be disclosed before trial. It merely indicated that the decision as to when such statements ought to be disclosed should be dealt with at the pretrial stage rather than the discovery stage. 506 F.2d at 304.

7 We note that no need for the statements other than for impeachment purposes was shown in either the Robinson & Stephens or Engineered Products cases.

8 The NLRB’s procedural rules provide that statements of government witnesses need not be disclosed in its proceedings until after the witness has testified for the government. 29 C.F.R. § 102.118(a), (b)(1) (1976).

9 Justice Stevens, joined by the Chief Justice and Justice Rehnquist, concurred, noting that they would apply the Court’s rationale to any enforcement proceeding, not merely NLRB proceedings.

10 In the absence of a specific provision in the Commission’s Rules of Procedure, Commission proceedings follow the Federal Rules of Civil Procedure. 28 U.S.C. § 661(f); 29 C.F.R. § 2200.2(b).

11 Of course, where an employee or an employee representative requests an inspection by notifying the Secretary in writing that a standard has been violated or that an imminent danger exists, the Act provides that a copy of the notice shall be given to the employer no later than the time of the inspection. Upon request of the person signing the notice, that person’s name and those of the individual employees referred to therein shall not appear on any copies released. 29 U.S.C. § 657(f)(1). Our ruling in no way affects this statutory provision.

12 The Respondents also contend that there is less need for confidentiality in OSHA proceedings than FLSA proceedings (from which many of the informer’s privilege cases discussed above arise) because the benefit to employees in FLSA cases is a direct pecuniary benefit, whereas in OSHA cases the benefit is indirect. Thus, Respondents contend, the likelihood of retaliation by employers is much lower in OSHA proceedings. The Commission has recognized that the threat of employer retaliation against employee-informers is nonetheless very real in OSHA cases. Stephenson Enterprises, supra. Indeed, the public interest in the free flow of information regarding OSHA violations requires protecting all informers unless the requisite need for their identities is shown. Quality Stamping, supra.

13 If the Respondents had pursued discovery of the witness by the prescribed discovery procedures, including giving the requisite notice to the Secretary, the Secretary would have had an opportunity to cure the lack of recollection by showing the witness his statement before he was deposed by the Respondents.

14 If the employee is unavailable to testify, however, and the proof of voluntary waiver thus is indirect, the maximum sanction that should be imposed would be foreclosing the Secretary from relying in any way on the contents of the statement at the hearing. If the employee’s request was not actually voluntary, having been obtained as a result of duress, for example, disclosure should not be ordered. See 92 C.J.S., supra.

[2] Section 29 CFR 1926.605(d)(3) provides as follows: ‘First-aid and Lifesaving Equipment. * * * Employees walking or working on the unguarded decks of barges shall be protected with U. S. Coast Guard-approved work vests or buoyant vests.’

[3] The exact date of filing is unknown. Inasmuch as the Judge was not furnished a copy of complainant’s petition, it can only be assumed that it was based upon ‘informers privilege’. Previously, both sides had requested the Review Commission to consider this same matter on an interlocutory appeal. These requests were denied by the Review Commission on September 29, 1976.

[4] Section 8(f) of the Act provides that employees may give notice in writing to the Secretary when they feel that a safety standard is being violated.

[5] In Moore’s Federal Practice, Vol. 4, at page 304, it was stated that once the Government has furnished the names of its informers to a defendant, the justification for withholding the statements of such informers disappears.