“UNITED STATES OF AMERICAOCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION \u00a0 SECRETARY OF LABOR, \u00a0 ???????????????????????????????????????????? Complainant, \u00a0 ???????????????????????? v. OSHRC DOCKET NO. 76-1481 MASSMAN-JOHNSON (LULING), A JOINT VENTURE, MASSMAN CONSTRUCTION CO., AND AL JOHNSON CONSTRUCTION CO., \u00a0 ????????????????????????????????????????????? Respondent. \u00a0 May 2, 1980DECISIONBefore: CLEARY, Chairman; BARNAKO and COTTINE,Commissioners.BY THE COMMISSION:??????????? Adecision of Administrative Law Judge Henry F. Martin, Jr., is before theCommission for review under section 12(j) of the Occupational Safety and HealthAct of 1970, 29 U.S.C. ??\u00a0651?678 (?the Act?). The issue is whether thejudge erred in dismissing the complaint based on the Secretary?s refusal todisclose to the Respondents statements taken by the Secretary from certainprospective witnesses in the case.??????????? OnMarch 10, 1976, Respondent Massman-Johnson (Luling) (hereinafter ?the jointventure?) was issued a citation alleging a ?willful-serious? violation of theAct 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 ?. . . employeeswalking or working on the unguarded decks of barges shall be protected withU.S. Coast Guard-approved work vests or buoyant vests.? The pleadings indicatethat the citation was issued following an investigation of a fatal accident atthe Respondents? worksite on the Mississippi River in Louisiana, in which oneof 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 ConstructionCo. and Al Johnson Construction Co. individually as Respondents.[1] The case was assigned toJudge Martin for hearing. He requested witness lists and a brief summary ofeach witness?s testimony from the parties and set a date for the hearing on themerits, which subsequently was rescheduled for September 30, 1976. TheSecretary submitted his response to the judge?s requests on August 6, and theRespondents submitted their response on August 27. Included on the Secretary?switness list were five persons who apparently had been employees of the jointventure at the time of the accident.??????????? Alsoon August 6, 1976, the joint venture moved for the Secretary?s production ofvarious documents including the compliance officer?s report and notes. OnAugust 16, 1976, the Secretary filed his response, indicating that he would notproduce certain of the materials requested, including ?any material relating tothe identities and statements of informants on the grounds that such identitiesand statements are privileged.? The same day, and before receiving theSecretary?s response, Judge Martin by letter stated: ?Respondent?s request forthe production of documents is reasonable and complainant is directed to complywith it by August 20, 1976.? On August 20, the Secretary turned over therequested material with the exceptions he had previously noted.??????????? Thejoint venture moved to dismiss the complaint based on the Secretary?s failureto produce certain of the materials. On September 2, 1976, the Secretary movedfor a protective order to prevent inquiry into the material withheld. At ahearing on the motions on September 15, 1976, Judge Martin, based on an incamera inspection of the documents, ordered that the Secretary turn over to theRespondents three days before the hearing the factual statements obtained fromhis prospective witnesses. The Judge named the individuals involved. Thehearing on the merits later was continued to October 13, 1976, and the judge onOctober 5 again ordered disclosure of the statements four days before the newhearing date.1a??????????? Atthe hearing on the merits on October 13, the judge held a further in camerainspection of the witness statements. The Secretary admitted that two of thealleged informers, Fowler and Englehart, were management personnel. Fowler wasthe ironworker superintendent and Englehart was the project manager. TheSecretary?s counsel stated that copies of their statements had been released tothose two employees the day before the hearing, and the Respondents? counselacknowledged that those statements were available to the Respondents by thetime 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 ofthe hearing. At the hearing, the Secretary argued that the statements withheldwere covered by the informer?s privilege and that they should not be requiredto be disclosed until after the witness actually had testified on directexamination.2 When asked by the judgewhich of the prospective employee-witnesses he contended were informers, theSecretary?s counsel answered, ?We contend they all are.???????????? OnNovember 15, 1976, Judge Martin filed his decision dismissing the case forfailure of the Secretary to comply with his second disclosure order, entered onOctober 5. He rejected the Secretary?s argument that he had no duty to turnover the statements until the witnesses involved had testified on directexamination at the hearing. The judge found that there was no contention thatany prospective witness who had given a signed statement to the Secretary hadinstigated the investigation, filed a complaint with OSHA officials, informedthe Secretary that the Respondents had violated on OSHA standard, or was aconfidential informer. He also concluded, based on an in camera inspection,that none of the statements contained any confidential information and that thestatements revealed no reason why they should be withheld until after thewitnesses testified.??????????? Thejudge further held that, even if the witnesses were informers, their names hadbeen disclosed in the list of potential witnesses submitted by the Secretaryand there remained no need for preserving the confidentiality of theirstatements. The judge also concluded that the Respondents had shown a need forthe statements.??????????? Onreview, the Secretary argues that none of the witness statements should havebeen ordered disclosed until the witness involved had testified on directexamination, absent a particularized showing by Respondents of a need for thestatements in advance. He argues that the Respondents have made no such showingof need for any of the statements and that his submission of a witness list didnot constitute a waiver of the privilege. The Secretary also argues that thejudge should not have revealed which of the Secretary?s prospective witnesseshad submitted written statements. In any event, the Secretary urges thatdismissal of the case is too severe a sanction, even assuming that he was notjustified in withholding the statements.??????????? TheRespondents urge the Commission to affirm the judge?s decision for the reasonsgiven by him. They also argue that the informer?s privilege does not apply tomanagement personnel. The Respondents contend that the Secretary waived theprivilege by disclosing his prospective witnesses and by claiming that they areall informers. Respondents further argue that waiver was effected in that theSecretary refused to give one employee a copy of his statement despite theemployee?s request. They also contend that there is no further need forconfidentiality as to the witness statements because the judge identified thepersons who had given them in his September 15, 1976 order. They argue that twoof the Respondents, Massman Construction Co. and Al Johnson Construction Co.,never employed the alleged informers and therefore no protection is neededagainst retaliation by these Respondents. Finally, Respondents argue that theywould be prejudiced if the case were remanded for hearing at this time. Theycontend, essentially, that the job in question has been completed and that thepersons who would testify for them are no longer in their employ and havedispersed throughout the country. In short, Respondents claim that certainwitnesses are no longer available to testify. For these reasons, theRespondents urge the Commission to uphold the judge?s dismissal of the case.3I??????????? Theinformer?s privilege is the well-established right of the government to withholdfrom disclosure the identity of persons furnishing information of violations ofthe law to law-enforcement officers. The privilege applies to proceedingsbefore the Commission. Quality Stamping Products Co., 79 OSAHRC 28\/F11,7 BNA OSHC 1285, 1979 CCH OSHD ?23,520 (No. 78?235, 1979); StephesonEnterprises, 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 theprivilege is the public interest in the free flow of information to thegovernment concerning violations of law and the protection of informants fromretaliation. The privilege is qualified, however, and where the disclosure isessential to the fair determination of a case, the privilege must yield or thecase will be dismissed. Quality Stamping, supra; StephensonEnterprises, supra.??????????? In QualityStamping, the Respondent sought the name and relationship to Respondent ofa person who had given a statement to the Secretary concerning allegedlyhazardous conditions in the Respondent?s plant. We held that the qualifiedprivilege applied to that information. In the case before us, however, theissue is whether the Respondents are entitled to the actual statements given tothe government by prospective witnesses in the case. The Respondents contendthat the informer?s privilege does not protect the contents of statementsthemselves. The Secretary argues that the privilege protects the contents ofstatements to the extent they would tend to reveal the persons giving them asinformers, by virtue of whether the information was given reluctantly orvoluntarily, whether the tone or manner of the statements was friendly orunfriendly to the Respondent, and whether the information was accusatory orfavorable. See Hodgson v. Charles Martin Inspectors of Petroleum, Inc.,459 F.2d 303 (5th Cir. 1972); Wirtz v. B.A.C. Steel Products, Inc., 312F.2d 14, 16 (4th Cir. 1962).??????????? Theinformation sought by the Respondents must be relevant to the subject matter ofthe case before the question of privilege is reached. Quality Stamping,supra; Stephenson Enterprises, supra. The scope of discovery inCommission proceedings is governed by Rule 26(b)(1) of the Federal Rules ofCivil Procedure (?Fed. R. Civ. P.?), 28 U.S.C., which provides that, ingeneral, parties may obtain discovery regarding any matter, not privileged,which is relevant to the subject matter of the pending action. Here, there isno dispute that the information contained in the witness statements is relevantto the events surrounding the alleged violation. Thus, we proceed to determinewhether the qualified informer?s privilege applies.4??????????? Theburden of proving the facts in support of the privilege rests with theSecretary. Stephenson Enterprises, Inc., supra. The privilege isapplicable to any person furnishing information to government officialsconcerning violations of the Act or its implementing standards and regulations,regardless of the informant?s employment relationship to the cited employer. QualityStamping, supra. Here, the Respondents seek statements given to thegovernment by certain prospective witnesses concerning the case. Under ourholding in Quality Stamping, the qualified privilege clearly applies to protectthe identity of persons giving such statements. Thus, the fact that theindividual companies, as opposed to the joint venture, did not employ the personsinvolved does not make the privilege inapplicable.??????????? Noris the privilege applicable only to those persons who actually instigateinvestigations or act as confidential accusers in the criminal sense. It is theduty of every citizen to cooperate in the enforcement of the law and theprivilege encourages the fulfillment of that obligation by preserving theanonymity of government sources generally. Quality Stamping, supra.??????????? Thefact that two of the prospective witnesses are management personnel likewisedoes not render the privilege inapplicable. Supervisory and managerialpersonnel in some cases may be the only persons who could be aware of theexistence of violations. They are entitled to the protection of the informer?sprivilege when communicating information concerning workplace hazards to thegovernment.5II??????????? Becausethe informer?s privilege applies to the prospective witnesses in this case, wemust determine the propriety of the judge?s action in ordering disclosure oftheir statements before the hearing. We hold that he erred in so doing.??????????? Thejudge found that the employees involved were not ?confidential informants.? Asnoted above, however, the mere fact that they supplied information relevant tothe investigation of alleged OSHA violations makes the privilege applicable.The judge also found that none of the statements contained any privileged orconfidential information. The essence of the informer?s privilege, however, isthe protection of the informer?s identity, and the confidential information ina statement is that which tends to indicate that the person giving it hascooperated with the government against the employer. As the Secretary pointsout, the identity of an informer might be revealed from the disclosure of evena basically factual statement relevant to an investigation, for example, if thetone and manner of the statement were accusatory or unfriendly to therespondent. See Hodgson v. Charles Martin Inspectors of Petroleum, Inc.,supra; Wirtz v. B.A.C. Steel Products, Inc., supra. .the judge shouldhave centered his analysis on the issue of protecting of the informers?identities rather than the nature of the information itself.??????????? Thejudge further ruled that even if the prospective witnesses are informers, theSecretary waived the confidentiality of their statements when he submittedtheir names on his witness list. It is generally held that where the governmentvoluntarily reveals the identity of informers, the privilege ceases to exist. Mitchellv. Bass, 252 F.2d 513 (8th Cir. 1958); Hodgson v. Charles MartinInspectors of Petroleum, Inc., supra. It also has been held that submissionof a witness list is a waiver of the confidentiality of statements taken fromthe witnesses involved, at least as to material that does not identify the statement-giveras an informer. See, e.g., U.S. v. Julius Doochin Enterprises, Inc., 370F. Supp. 942 (M.D. Tenn. 1973); See also Mitchell v. Bass, supra.??????????? Somecases, however, have distinguished between furnishing a list of witnesses, onthe one hand, and disclosing who among those witnesses had given the governmentstatements, on the other. In Wirtz v. Robinson & Stephens, Inc., 368F.2d 114 (5th Cir. 1966), a case under the Fair Labor Standards Act (FLSA, 29U.S.C. ?? 201?219, the Court held that it was error to require the Secretary todesignate, ten days before trial, which of his prospective witnesses had givenwritten statements concerning the alleged violations. The court held that suchan order went beyond the mere requirement of a witness list or a pretrialdescription of the subject matter of each witness?s testimony. It held thatsuch an order tended toward disclosure of informers and that there would belittle, if any, facilitation of the trial as a result of such disclosure.??????????? In Hodgsonv. Charles Martin Inspectors of Petroleum, supra, another FLSA case, theSecretary refused to comply with a discovery request by the defendant employerfor copies of written statements taken from present and former employees forwhom claims were being made. The Secretary did, however, give the names of allemployees who were the subject of claims and provided considerable otherinformation concerning those claims. The trial court ordered disclosure of thestatements involved, but was reversed. The court of appeals indicated that thestatements might reveal such things as whether the persons involved hadcooperated voluntarily or only reluctantly with the government and that theirdisclosure might increase the risk of reprisals by the defendant. The courtconcluded that the statements were still subject to the privilege except as tothose employees who had been specifically identified by the Secretary asinformers.??????????? Weagree with the reasoning of the Robinson & Stephens and CharlesMartin cases. The judge certainly has the authority to require a witnesslist and a summary of the expected testimony of each witness before the hearingon 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 Bassor Julius Doochin Enterprises cases may be read to hold that submission of awitness list is a waiver of the informer?s privilege, we disagree. We hold thatsubmission of a witness list or a summary of prospective witnesses? testimonydoes not constitute a waiver of the confidentiality of the identities ofinformers or their statements.III??????????? Onreview, the Respondents argue that the Secretary, by his counsel?s statements,voluntarily revealed the identity of the employees involved as informers andthus waived any privilege. The Respondents apparently are referring to thereasons the Secretary gave for withholding the statements. For example, theSecretary?s counsel specifically stated that he would not comply with theRespondents? motion for production to the extent that it requested ?materialrelating to the identities and statements of informants . . ..? This statementdoes not indicate that the Secretary voluntarily revealed the identity of anyemployees he seeks to protect as informers. Rather, it appears that suchstatements by the Secretary?s counsel were made merely in order to clearlyassert the informer?s privilege.??????????? OnSeptember 15, 1976, Judge Martin ordered the Secretary to turn over the factualstatements obtained from the witnesses he had listed. The Respondents point outthat the judge, at the time he ordered the production of the statements,disclosed the identities of the persons to whom the Secretary argued the privilegewas applicable. Therefore, Respondents argue, there is no further need forconfidentiality. In essence, they claim, the privilege has been waived. Wedisagree. The judge?s action on September 15, 1976, left the Secretaryessentially no choice except to either turn over all of the statements orwithhold them on the grounds that all persons involved were informers. Thus,for example, when the Secretary stated at the October 13, 1976 hearing that hecontended all the prospective employee-witnesses were informers, theRespondents already knew that information because of the judge?s order ofSeptember 15, 1976. In the circumstances, the Secretary?s assertions followingthe judge?s disclosure on September 15, 1976, as well as those at the October13, 1976 hearing cannot be construed as a voluntary waiver of the informer?sprivilege.IV??????????? Sincewe find that the informer?s privilege applies to the statements in question andthat there has been no general waiver of the privilege by the Secretary, wemust determine whether the Respondents have shown ?special circumstances whichjustify withdrawing the qualified privilege from the Secretary.? StephensonEnterprises, supra. As stated above, this determination involves balancingthe public interest in protecting the free flow of information against theRespondents? need to prepare their defense.??????????? Theapplication of the balancing test necessarily involves the exercise ofdiscretion. Various approaches have been suggested by the U.S. Circuit Courtsof Appeals. The Fourth Circuit, in an FLSA case, has stated:the qualified privilege must give wayshortly before and during trial of an actual enforcement proceeding to theextent that fairness requires the Secretary to furnish lists of prospectivewitnesses and written statements from them.?U.S. v. Hemphill,369 F.2d 539, 542 (4th Cir. 1966). The court indicated that it would hold thegovernment to the same disclosure requirements mandated for private litigantsunder the Federal Rules of Civil Procedure. The issue in that case, however,involved a discovery request by the employer, and the request was denied. TheFifth Circuit, as noted above, has held that it is error to require theSecretary to designate, ten days before trial, which prospective witnesses havegiven him written statements. Wirtz v. Robinson and Stephens, Inc.,supra.??????????? In acomprehensive consideration of the balancing test and the timing of disclosureof witness statements, the Eighth Circuit Court of Appeals, in another FLSAcase, left to the trial court?s discretion the choice of an appropriate timefor their disclosure. Brennan v. Engineered Products, Inc., 506 F.2d 299(8th Cir. 1974). The court suggested three possible courses of action. Onealternative would be to allow the defendant to examine a witness statement onlyafter the witness has taken the stand at the hearing and completed testifyingon direct examination. This is essentially the rule in federal criminal casesunder the Jencks Act, 18 U.S.C. ? 3500 (1970). The court suggested that thisapproach might be adequate where the only possible use of the statement wouldbe for impeachment purposes. A second suggested alternative would be to orderpretrial disclosure of only a summary of the evidence that will be presented byeach 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 notinclude designation of which potential witnesses gave statements to thegovernment or the statements themselves. A third alternative would be to orderproduction of the statements themselves either at the same time a witness listis ordered, see U.S. v. Julius Doochin Enterprises, Inc., supra, or at ashorter 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 inadvance of testimony). The court suggested that if the third alternative werefollowed, the trial court should consider making appropriate deletions ofmaterial tending to identify statement-givers who would not be witnesses.6 The Eighth Circuit also said:[W]e urge the [trial] court to takeseriously the government?s reasons for desiring to withhold the statements aslong as possible. The government?s counsel has asserted that the Secretary isconstantly losing witnesses in FLSA actions, and that he wishes to limit theperiod of potential or even imagined harassment.?506 F.2d at 305.7??????????? TheUnited States Supreme Court has voiced a similar concern over possible witnessharassment due to premature disclosure of witness statements in NLRB v.Robbins Tire and Rubber Co., 437 U.S. 214 (1978). The Court upheld therefusal by the National Labor Relations Board (NLRB) to turn over witnessstatements before trial pursuant to the Respondent?s request under the Freedomof Information Act (FOIA), 5 U.S.C. ? 552 (1978). The Court ruled that thestatements were protected from disclosure under Exemption 7(A) of FOIA, whichprovides that disclosure is not required of ?matters that are . . .investigatory records compiled for law enforcement purposes, but only to theextent that the production of such records would . . . interfere withenforcement proceedings;? 5 U.S.C. ? 552(b)(7)(A).8The Court noted that the most obvious risk of interference from pretrialdisclosure of the statements would be pressure by the employer or unioninvolved on the employees or others to change their testimony or discouragethem from testifying. It noted that the danger of witness intimidation wasparticularly acute with respect to current employees, and stated that Congress,in drafting the current version of the exemption, specifically intended toavoid giving a party litigant earlier and greater access to the NLRB?s casethan the party otherwise would have.9??????????? Asnoted above, the scope of prehearing discovery in Commission proceedings isgoverned by Rule 26(b)(1) of the Federal Rules of Civil Procedure. Discoveryunder that rule is subject to certain limitations including the provisions ofFederal Rule of Civil Procedure 26(b)(3).10??????????? Evenwhere there is no question of the informer?s privilege involved, witnessstatements may be subject to the provisions of Federal Rule of Civil Procedure26(b)(3). That Rule provides that documents prepared by or for a party?srepresentative in anticipation of litigation or for trial are not discoverableexcept upon a showing that the party seeking discovery has substantial need forthe materials in the preparation of its case and that it is unable withoutundue hardship to obtain the substantial equivalent of the materials by othermeans. Rule 26 defines the scope of discovery for all discovery devices. 9Wright & Miller, Federal Practice and Procedure, ? 2452. Thus, ifmaterials are not discoverable under Federal Rule 26, they would not be subjectto prehearing disclosure under the prehearing conference provisions of FederalRule of Civil Procedure 16, 6 Id., ? 1528, and would not be subject to asubpena duces tecum under Federal Rule of Civil Procedure 45(d)(1). 9 Id., ?2452.??????????? Wherethe Secretary?s representatives take statements from persons in connection withan ongoing investigation of alleged violations of the Act, they do so inanticipation of litigation or for trial. Thus, such statements are not subjectto disclosure without a showing of need and inability to obtain the informationby other means without undue hardship, regardless of whether the informer?sprivilege 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 andProcedure, ? 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??????????? Consideringthe possibilities for identification and intimidation of prospective witnessesbased on pretrial disclosure of their statements, the limits on disclosureunder Federal Rule of Civil Procedure 26(b)(3), and the practices in NLRB andFLSA cases, we conclude that on balance the identities of persons who havegiven the government statements regarding alleged OSHA violations that are thesubject of an ongoing investigation along with the contents of the statementsthemselves should not be required to be disclosed before the hearing unless therespondent shows that the information is essential to prepare adequately forthe 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, notprivileged, regarding the issues in the case. Fed. R. Civ. P. 26(b)(1). In theusual case, the identity of government informers will be irrelevant to theissues, and the facts contained in statements may be obtained by other means.In such cases, no disclosure of the informers? identities or the prospectivewitnesses? statements should be permitted. In the unusual case where theinformer?s identity is somehow relevant to the issues, e.g. Quality Stamping, supra,or where a respondent is unsuccessful in obtaining the facts contained instatements by other means, the respondent is entitled to the informationrequested to the extent necessary to prepare adequately for the hearing on themerits.??????????? Duringthe hearing itself, different considerations come into play. The respondent isentitled to an opportunity for full and effective cross-examination of eachwitness. This includes an opportunity to test the veracity and accuracy of awitness?s testimony against prior statements by that witness on the samesubject. The Jencks Act approach suggested as an alternative in Brennan v.Engineered Products, supra, recognizes this need by permitting the respondentaccess, upon request, to all of a witness?s prior statements in thegovernment?s possession that relate to the subject matter of the witness?stestimony, 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, theNLRB 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 beaccorded the same opportunity.??????????? Thus,when a witness has completed testifying for the Secretary on directexamination, the Secretary shall, upon motion by a respondent, turn over to itall the witness?s prior statements that are in the government?s possession andthat relate to the subject matter of the witness?s testimony. If the Secretaryclaims that a statement contains material that does not relate to the subjectmatter of the witness?s testimony, the judge shall order the Secretary todeliver the statement for the judge?s inspection in camera. The judge shall excisethe portions of the statement that do not relate to the subject matter of thewitness?s testimony, with one exception: The judge may, in his discretion,decline to excise any portion that is relevant to other matters raised by thepleadings. After making the appropriate excisions, the judge shall directdelivery of the statement to the respondent and, if the respondent objects toany excisions, the portions involved shall be preserved by the Secretarypending possible review by the Commission or appeal to the courts of thejudge?s decision.??????????? TheRespondent shall be entitled to a recess for such reasonable time as isnecessary to evaluate a statement and prepare to use it in the hearing. In theevent that a statement disclosed at the hearing contains material that therespondent could not have discovered previously and that bears on the issues inthe case, the respondent shall be entitled upon request to a recess orcontinuance for such time as is reasonably necessary to meet or take advantageof the new evidence.VI??????????? TheRespondents urge that in accident cases such as this, where eye-witnesstestimony is crucial, it is of overriding importance that all witnesses?statements be turned over before trial. The crucial nature of that testimonyalso points out, however, the importance of encouraging eye-witnesses to comeforward and of preserving their confidential relationship with the Secretary,unless sufficient need for the statements themselves is shown by theRespondents.12??????????? TheRespondents also argue that where a statement is inaccurate or incomplete, theemployer more time to marshal a defense against it than is possible when thestatement is withheld until the informer takes the stand. Since the Respondentshave the right to discover the facts known by each person regarding the allegedviolation, the problem of surprise at trial due to the contents of a witnessstatement may not arise. If it does, any unfair surprise may be cured by arecess or continuance.??????????? TheRespondents contend that the sounder policy generally is to require disclosureof witness statements before the hearing. They point out that if the Secretarybelieves that certain portions of the statement should be deleted, an in cameraproceeding can be held so that the judge, not the Secretary, may make thedetermination. The in camera procedure is useful in resolving sensitivequestions of privilege, but a rule requiring pretrial disclosure of witnessstatements generally, even with deletions, may result in unnecessary disclosureof informers? identities. It also would be inconsistent in many cases withFederal Rule of Civil Procedure 26(b)(3). Finally, such a prehearing disclosurerule might lead to extensive in camera proceedings and place an unwarrantedadministrative burden upon judges.??????????? Atthe October 13, 1976 hearing, the Respondents mentioned for the first time thatone prospective witness had been unable to remember the facts when interviewedby 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?sdeposition or otherwise interrogate him pursuant to the appropriate discoverychannels.??????????? Generally,a respondent is not entitled to relief on the grounds of inability to gaindiscovery from a witness unless proper discovery has first been attempted fromthat witness through one of the methods prescribed in the Federal Rules ofCivil 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 Respondentsattempted discovery of the witness?s statement pursuant to those rules. Theywere not, however, entitled to discovery of the statement unless they wereunable to gain the relevant facts through the witness himself by appropriatediscovery channels. This they did not attempt to do, although they knew theSecretary opposed any disclosure of the statement.13Furthermore, the Respondents did notraise the issue until the hearing. A discovery matter such as inability toobtain discovery of a witness should be raised at the discovery stage. There isno indication that the issue could not have been raised at that stage. In thecircumstances, the Respondents are not entitled to relief based on the failureof a prospective witness to remember the facts when interviewed. See Wirtzv. B.A.C. Steel Products, Inc., supra.??????????? TheRespondents also claim that one witness (apparently the same one who did notremember the facts) requested a copy of his statement and that the Secretaryrefused to comply with the request. Such a request might constitute a waiver ofthe confidentiality of the statement, depending on the circumstances. Theinformer?s privilege belongs to the government, but it is waived if theinformer 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 tothe opportunity to prove a voluntary waiver by the employee. If it is shownthat the employee voluntarily wished to let the Respondents see his statement,knowing of his right of confidentiality, the statement should be ordereddisclosed. See generally 92 C.J.S. Waiver (1955). If the Secretary stillrefuses to turn over the statement, the judge may take appropriate action underCommission Rule 54, 29 C.F.R. ? 2200.54.14??????????? TheRespondents argue that they would be gravely prejudiced if the judge?s decisionis 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. TheRespondents indicate that construction at the jobsite in question has beencompleted, that the Respondents have no work in the area, and that all theiremployees at the old site have been terminated and are dispersed throughout thecountry. In short, Respondents believe these former employees may beunavailable to testify. Of course, the Secretary presumably would have no lessdifficulty obtaining witnesses than the Respondents. In any event, theRespondents have not suffered legal prejudice in this case. The Respondentsknew they were still subject to suit even when the case was on appeal. If theyfeared losing witnesses, they could have proffered the witnesses? testimony atthe original hearing or requested leave to take depositions to preserve thetestimony pursuant to Commission Rule 53. See Federal Rule of Civil Procedure,30(a). Having not acted to preserve the testimony earlier, the Respondents maynot new have the case dismissed because of the possible unavailability of thetestimony. This case will be ordered expedited on remand, however.VII??????????? Insummary, we hold that the public interest in keeping confidential both theidentities of persons who have given the government statements regardingalleged OSHA violations that are the subject of an ongoing investigation andthe contents of those statements outweighs the respondent?s interest inprehearing disclosure unless the respondent shows that the information isessential to its preparation for the hearing and that it is unable to obtainthe information by other means. The need to effectively cross-examine a witnessis not sufficient justification in and of itself for prehearing disclosure ofsuch a witness?s statement. After a witness has completed testifying on directexamination, however, respondents are entitled, upon request, to obtain copiesof all statements in the government?s possession relating to the subject matterof the witness?s testimony.??????????? Underno circumstances should the judge reveal the identities of persons who havegiven such statements to the government, or the contents of any suchstatements, over the Secretary?s objection. The judge may make appropriateorders, however, in the event of unjustified refusal to comply with disclosurerequirements, including dismissal of the action if necessary.??????????? Inthis case, there has been no particularized showing of need for any of thestatements themselves before the hearing sufficient to outweigh the strongpublic interest in protecting the confidentiality of government sources. TheRespondents will have an opportunity on remand, however, to show a waiver ofthe privilege by one employee on the grounds that he requested a copy of hisstatement, as discussed above.??????????? Accordingly,the judge?s decision is reversed and remanded for proceedings consistent withthis 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 SecretaryDATED: MAY 2, 1980\u00a0\u00a0UNITED STATES OF AMERICAOCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION \u00a0 SECRETARY OF LABOR, \u00a0 ???????????????????????????????????????????? Complainant, \u00a0 ???????????????????????? v. OSHRC DOCKET NO. 76-1481 MASSMAN-JOHNSON (LULING), A JOINT VENTURE, MASSMAN CONSTRUCTION CO., AND AL JOHNSON CONSTRUCTION CO., \u00a0 ????????????????????????????????????????????? Respondent. \u00a0 \u00a0November 15, 1976ORDERDISMISSING PROCEEDINGMARTIN, Judge:??????????? This proceeding was brought pursuant to section 10 of theOccupational Safety and Health Act of 1970, contesting an alleged?willful-serious? citation issued by complainant against respondent under theauthority vested in complainant by section 9(a) of that Act. The citation, issuedon March 10, 1976, alleged that an inspection of a work place under the controlof respondent revealed the existence of a work place condition violative ofsection 5(a)(2) of the Act by reason of its failure to comply with section 29CFR 1926.605(d)(3).[2]??????????? The citation described the alleged violation as follows:The employerMassman-johnson (Luling)?A Joint Venture?failed to assure that employeeswalking or working on the unguarded decks of a barge were protected with U.S.Coast Guard approved work vests or buoyant vests in that:\u00a0(a) The materialbarge secured north of Pier #2, West Bank of Mississippi River, JV?120 LulingBridge Project, I?410, on February 12, 1976, at approximately 9:30 a.m., hademployees working on the unguarded deck of the material barge, not protectedwith U.S. Coast Guard approved work vests or buoyant vests. \u00a0??????????? After a formal complaint was filed and issue was joinedthis matter was assigned to the undersigned Judge for a hearing. Prior to theassigned hearing date the parties were directed to exchange witness lists andto furnish a resume of the testimony to be elicited from the witnesses. Eachsaid prepared a list of the prospective witnesses; however, no summary of thetestimony was forthcoming. After several settings and postponements for variousreasons this matter finally came on for hearing in New Orleans, Louisiana, onOctober 13, 1976.??????????? At the outset of the hearing respondent moved to dismissthe proceeding arguing that the U. S. Coast Guard had jurisdiction over thismatter rather than the Occupational Safety and Health Administration. Thismotion was taken under advisement. Respondent then moved to dismiss theproceeding because complainant had not complied with the Judge?s order issuedunder the date of October 5, 1976, whereby the parties were ordered to furnisheach other copies of all statements obtained from the witnesses previouslyidentified. This requirement was to be accomplished prior to the hearing date.Instead of complying with this pre-trial order complainant filed a secondpetition for interlocutory appeal with the Review Commission.[3]??????????? Complainant contended that the statements were obtainedfrom confidential informants and that he could not release the witnessstatements until after the witnesses had testified on direct examination.Respondent, on the other hand, contended that he needed these statements toproperly prepare his case and that complainant?s actions had prejudiced hispreparation of the case; that the aforementioned witnesses were not informersand that the proceeding should be dismissed because of complainant?s failure tocomply with the Judge?s order, pursuant to Rule 54 of the Commission?s Rules ofProcedure.??????????? After careful consideration it is concluded that there ismerit to the position taken by respondent. The argument presented bycomplainant that any worker at the work place, who is interviewed by acompliance 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 asigned statement was taken instigated this investigation, filed a complaintwith the Occupational Safety and Health Administration representatives, or?informed? and government representative that respondent had committed aviolation of a safety or health standard.[4] Complainant admits thatthese previously named witnesses were interviewed by the compliance officer aday after one of their co-workers had drowned after falling from a barge.??????????? An in camera inspection was conducted relative to thewitness statements in question and it was concluded that none of them containedany privileged or confidential information. Further, there is nothing in thestatements from which it could be determined that any witness was an actualinformer or confidential informant who was ?informing? on his employer. It illbehooves the U. S. Government or the Department of Labor to try to hide orwithhold from an opposing litigant information which might be helpful to hisdefense.??????????? Memoranda and statements compiled during an inspectionare not to be clothed in secrecy unless an in camera inspection reveals someportion of which might be confidential or privileged. In the latter event anyprivileged matter could be deleted or excluded. Neither did the in cameraexamination of the statements reveal and reason why complainant should notrelease the statements prior to the hearing rather than wait until after thewitnesses have testified.??????????? Even if it could by any stretch of the imagination beconcluded that the employees who signed statements were ?informers?, theirnames were disclosed by complainant as persons who would testify at the trial,and, therefore, there no longer remained any need for privilege orconfidentiality. 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 reliefin 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., onOctober 4, 1976. The injunction was denied on October 12, 1976. A transcript ofthat hearing was received into evidence and marked as respondent?s R?1. Atpages 42 and 43 of the transcript the following appears:THE COURT: I findit rather difficult to understand the government?s position in this particularregard. I know if you were trying this case before me you would be disclosingall this information, and apparently the Administrative Law Judge is of thesame 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 moreinterested in arriving at the ultimate truth of the situation than anyone elsewants to prevent a litigant from obtaining this type of information. I find ita very, very bad, and what appears to me a very sharp practice on the part ofthe government in this case. Apparently you have two Judges who disagree withyou. But if you want to take that intransigent position that you are about toassume, and it is very, very hard for me to understand, and frankly speaking, Idon?t think the record thus far really shows irreparable injury so far as theinjunction is concerned, but when you combine this with it, perhaps this taintsthe first demand to such an extent that I should grant a T.R.O. as to both.?MR. FITZ: YourHonor, the problem with witness statements, and particularly where thewitnesses are employees of the?.?THE COURT: Thatargument left me when I read your brief, because that argument goes out the minutethat you put the first witness on the stand, that argument goes. If that is thereason you won?t give the statements, he is going to find out the minute youput him on the stand. Now, they have said take the part out so that they can?tidentify the witness. Let me ask you this. Are those statements necessary to yourdefense of this case??WITNESS: Verydefinitely, your Honor.?THE COURT: Willyou be irreparably injured in your defense in this matter if you don?t receivethose statements timely??WITNESS: YourHonor, in my opinion we will be. Your Honor, if I could express in one or twoinstances we have been * * *.?As the court stated in Bristol-MyersCo. v. F.T.C., 424 F. 2d 935 (D.C. Cir. 1970), a bare claim ofconfidentiality will not immunize files of a government agency from scrutiny.It is the responsibility of the court to determine the validity and extent ofthe claim after consideration of the documents in question and of insuring thatthe exemption is strictly construed. Details as to confidential or secretmatter can be deleted so as to render the material subject to disclosure.??????????? It should be noted that this Judge has previously ruledagainst respondent?s request for access to certain evaluations, instructions,or advice given by the solicitor, opinions, legal theories or interofficecommunications between the solicitor and the area office.??????????? After carefully considering the pleadings, arguments ofcounsel, and after an in camera examination of the documents in question it isconcluded that complainant has failed to show that the witness statements were obtainedfrom confidential informants or that the information contained in thestatements was privileged. It is also concluded that respondent has shown aneed for the requested documents.??????????? The record herein discloses that complainant did notcomply with this Judge?s order of October 5, 1976, and further that complainantfailed to supply respondent with copies of the signed statements after havingbeen directed to do so at the hearing on October 13, 1976.?In the view of theforegoing, it is ORDERED:?That the complaint bedismissed and that the citation and accompanying notification of proposedpenalty be and the same are hereby vacated.?HENRY F. MARTIN, JR.JUDGEDATED: November 15, 1976?Dallas, Texas\u00a0[1] In theirsubmissions in response to the Commission?s briefing order the individualRespondents, Massman Construction Co. and Al Johnson Construction Co., take theposition that they are not proper parties to this proceeding since they werenot issued citations. This issue was neither raised in response to CommissionerMoran?s general direction for review of November 29, 1976, nor is it includedin the Commission?s briefing order of November 17, 1978. Accordingly, the issueis not before us on review at this time.1a The Secretarypetitioned the Commission for an interlocutory appeal from the judge?sSeptember 15 ruling, and the Commission denied the petition on September 29.The Secretary also petitioned for interlocutory review by the Commission of thejudge?s second disclosure order (entered on October 5), and the Commissiondenied the petition on October 19.2 This is thepractice 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?sdecision in Jencks v. United States, 353 U.S. 657 (1957), preserved in theJencks 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 Statesv. subversive Activities Control Board, 254 F.2d 314 (D.C. Cir. 1958); See Blakeslee-MidwestPrestressed Concrete Co., 77 OSAHRC 191\/A2, 5 BNA OSHC 2036, 1977?78 CCHOSHD ? 22,284 (No. 76?2552, 1977). 3 The Respondentsalso argue that the only direction for review in this case, a general directionby former Commissioner Moran, is not a sufficient basis for review. TheCommission rejected this contention in its order of January 27, 1977, denyingthe Respondents? Motion to Dismiss Direction for Review.4 The Respondentscontend that the Secretary failed to object in timely fashion to the jointventure?s motion for production of documents. They apparently would have usfind that the Secretary waived any right to object to revealing informationconcerning the alleged informers on this basis. The respondents contend thatthe objections had to be filed within five days of the filing of the motionitself. They further assert that the judge?s order of August 16, 1976,requiring compliance with the motion was based on the lack of a timelygovernment response. The Respondents? argument apparently is based on Rule55(b) of the Commission?s Rules of Procedure, 29 C.F.R. ? 2200.55(b), whichrequires that a person served with a subpoena, shall state any objectionswithin five days of service. The motion here was not a subpoena request and wasnot treated as such. Commission Rule 37, 29 C.F.R. ? 2200.37, provides that aparty has ten days following service to file a response to a motion. Under thatrule, the Secretary?s response of August 16, 1976, was timely. The judge?sorder of August 16, 1976, was not properly a determination on the merits of therequest for production because it was made before the time permitted for theSecretary?s response. The order was similar to an order permitting discoveryand setting time limits for responses under Commission Rule 53, 29 C.F.R. ?2200.53, although that rule relates only to depositions and interrogatories. OnAugust 20, 1976, in compliance with the time limit set by the judge, theSecretary forwarded the documents requested with the exceptions previouslynoted in his response of August 16. The sequence of discovery in this casereveals no lack of timely objection to revealing the identity of informers, nodisobedience by the Secretary of any order prior to September 15, 1976, andthus, no waiver of the informer?s privilege on these grounds.5 Of course, thenature of the employment relationship between the alleged informer and therespondent, or the lack of such a relationship, may be relevant in balancingthe interests the respective parties have in the information. QualityStamping, supra, at n. 10. Also, we note that in this case the informer?sprivilege was waived as to the two managerial employees involved. Respondents?counsel acknowledged that those employees received copies of their statementsfrom the Secretary the day before the October 13, 1976, hearing, and that thestatements were available to the Respondents by the time of that hearing. Thus,the question whether the Secretary could refuse at this time to withhold thoseparticular statements is not before use.6 The Respondentspoint out that the court stated that access to witness statements from allegedinformers for purposes of impeachment must be handled at the pretrial stage.But the court did not indicate that the statements must actually be disclosedbefore trial. It merely indicated that the decision as to when such statementsought to be disclosed should be dealt with at the pretrial stage rather than thediscovery stage. 506 F.2d at 304.7 We note that noneed for the statements other than for impeachment purposes was shown in eitherthe Robinson & Stephens or Engineered Products cases.8 The NLRB?sprocedural rules provide that statements of government witnesses need not bedisclosed in its proceedings until after the witness has testified for thegovernment. 29 C.F.R. ? 102.118(a), (b)(1) (1976).9 Justice Stevens,joined by the Chief Justice and Justice Rehnquist, concurred, noting that theywould apply the Court?s rationale to any enforcement proceeding, not merelyNLRB proceedings.10 In the absence ofa specific provision in the Commission?s Rules of Procedure, Commissionproceedings follow the Federal Rules of Civil Procedure. 28 U.S.C. ? 661(f); 29C.F.R. ?\u00a02200.2(b).11 Of course, wherean employee or an employee representative requests an inspection by notifyingthe Secretary in writing that a standard has been violated or that an imminentdanger exists, the Act provides that a copy of the notice shall be given to theemployer no later than the time of the inspection. Upon request of the personsigning the notice, that person?s name and those of the individual employeesreferred 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 Respondentsalso contend that there is less need for confidentiality in OSHA proceedingsthan FLSA proceedings (from which many of the informer?s privilege casesdiscussed above arise) because the benefit to employees in FLSA cases is adirect pecuniary benefit, whereas in OSHA cases the benefit is indirect. Thus,Respondents contend, the likelihood of retaliation by employers is much lowerin OSHA proceedings. The Commission has recognized that the threat of employerretaliation against employee-informers is nonetheless very real in OSHA cases.Stephenson Enterprises, supra. Indeed, the public interest in the free flow ofinformation regarding OSHA violations requires protecting all informers unlessthe requisite need for their identities is shown. Quality Stamping,supra.13 If theRespondents had pursued discovery of the witness by the prescribed discoveryprocedures, including giving the requisite notice to the Secretary, theSecretary would have had an opportunity to cure the lack of recollection byshowing the witness his statement before he was deposed by the Respondents.14 If the employeeis unavailable to testify, however, and the proof of voluntary waiver thus isindirect, the maximum sanction that should be imposed would be foreclosing theSecretary from relying in any way on the contents of the statement at thehearing. If the employee?s request was not actually voluntary, having beenobtained as a result of duress, for example, disclosure should not be ordered.See 92 C.J.S., supra. [2] Section 29 CFR1926.605(d)(3) provides as follows: ?First-aid and Lifesaving Equipment. * * *Employees walking or working on the unguarded decks of barges shall beprotected with U. S. Coast Guard-approved work vests or buoyant vests.?[3] The exact date offiling is unknown. Inasmuch as the Judge was not furnished a copy ofcomplainant?s petition, it can only be assumed that it was based upon?informers privilege?. Previously, both sides had requested the ReviewCommission to consider this same matter on an interlocutory appeal. Theserequests were denied by the Review Commission on September 29, 1976.[4] Section 8(f) ofthe Act provides that employees may give notice in writing to the Secretary whenthey feel that a safety standard is being violated.[5] In Moore?sFederal Practice, Vol. 4, at page 304, it was stated that once theGovernment has furnished the names of its informers to a defendant, thejustification for withholding the statements of such informers disappears.”