Cooper Cameron Corp. v. United States Department of Labor, Occupational Safety & Health Administration

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

__________________________

No. 00-21077
__________________________

COOPER CAMERON CORPORATION,
Plaintiff-Appellant,

versus

UNITED STATES DEPARTMENT OF LABOR,
OCCUPATIONAL SAFETY AND HEALTH ADMINISTRATION,
Defendant-Appellee.

___________________________________________________

Appeal from the United States District Court
For the Southern District of Texas
___________________________________________________

January 21, 2002
Before GARWOOD and WIENER, Circuit Judges, and CLEMENT,* District

Judge.

WIENER, Circuit Judge:

Plaintiff-Appellant Cooper Cameron Corporation (“Cooper”)

appeals from the district court’s grant of summary judgment

sustaining the decision of the Department of Labor (“DOL”) to

withhold from public disclosure, under the Freedom of Information

Act (“FOIA”),1 documents related to an explosion and fire at a

petrochemical plant near Houston. Given the unusual circumstances

*
Chief Judge Clement participated by designation in the oral
argument of this case as a United States District Judge of the
Eastern District of Louisiana. Since that time she has been
appointed as a Fifth Circuit Judge.
1
5 U.S.C. § 552.
of this case, we have determined that most of the material that the

DOL wants to withhold does not qualify as exempt from disclosure.

We therefore affirm in part, reverse in part, and render.

I. FACTS AND PROCEEDINGS

On a Sunday in June of 1996, at the Lyondell Petrochemical

Company’s storage terminal in Mont Belvieu, Texas, ethylene and

propylene being pumped under high pressure escaped into the

atmosphere, roaring out of a pipeline in a forty-foot jet of gas,

then forming a low, white cloud which drifted across a public

highway, ignited, and exploded. The explosion touched off a fire

which, according to the Houston Chronicle, lasted ninety minutes

and was visible from an interstate highway three miles away. No

one was injured, but media coverage of the incident attracted the

attention of the Houston South Area Office of the Occupational

Safety and Health Administration (“OSHA”), which investigated.

The explosion also sparked litigation: Lyondell sued Cooper,

a valve manufacturer, for damages in state court. The parties

deposed the only three Lyondell employees who were at the plant

when the explosions took place: Jack Bass, Dennis Hutter, and Bobby

Squier (“the deponents”). Each stated his full name and home

address during his deposition, and Bass provided his Social

Security number as well. The deponents testified that they gave

statements about the explosion to an OSHA investigator, but that

they did not have copies of their statements. Counsel for Lyondell

represented the deponents, met with them to prepare their

2
testimony, and asserted the attorney-client privilege on their

behalf.

Early in February, 1999, Cooper asked OSHA’s investigating

office to release all of its records on the explosion pursuant to

the FOIA. Four days after receiving the request, OSHA furnished

Cooper with three partially-redacted pages of records —— standard

inspection forms —— but withheld 145 pages, citing FOIA’s exemption

7 as justification.2

The following month, Cooper appealed this withholding to the

Solicitor of the DOL, arguing that the tort case pending in state

court publicized the identity and testimony of witnesses to the

explosion, thereby negating privacy interests and revealing any

otherwise confidential identities. Cooper filed three supplemental

appeals letters which focused on the deponents’ statements to OSHA,

and bird-dogged the Solicitor’s office by phone. OSHA claims that

during these phone calls Cooper narrowed its FOIA request to

include only the three deponents’ statements. Consequently, when

the Solicitor’s office affirmed OSHA’s action in November 1999, it

stated that it understood the request to be confined to those three

statements and upheld OSHA’s withholding of them as proper under

FOIA exemptions 7(D) and 7(C), which —— to generalize —— permit

agencies to withhold private or confidential material.

Cooper sued the DOL in federal district court, seeking an

2
There are six exemptions within 5 U.S.C. § 552(b)(7).

3
order compelling OSHA to produce the entire file (with names and

addresses redacted), moving for summary judgment, and repeating its

arguments that the deponents’ privacy and confidentiality interests

were attenuated. The DOL cross-moved for summary judgment, relying

solely on an affidavit (the “Miller declaration”) by Miriam Miller,

who since 1987 has served the DOL as Co-Counsel for Administrative

Law, Division of Legislation and Legal Counsel, in the Office of

the Solicitor in Washington. Her declaration primarily attested

not to how OSHA investigated the Mont Belvieu explosion, but rather

to how OSHA depends on its ability to promise witnesses to

industrial accidents that it will treat their statements

confidentially. The declaration did not describe the requested

material, none of which was in the district court record. The

court thus lacked even an in camera affidavit describing what OSHA

withheld. The court nevertheless granted the government’s motion

and denied Cooper’s, holding that both exemptions 7(C) and 7(D)

applied and that OSHA need not have segregated exempt material from

disclosable material in the witness statements.3

Cooper timely appealed. It contests the district court’s (1)

narrow construction of the request, (2) application of exemptions

7(C) and 7(D), and (3) refusal to segregate out disclosable

material or conduct an in camera review.

Given the gaps in the record, we attempted to clarify at oral

3
Cooper Cameron Corp. v. United States Dep’t of Labor, 118 F.
Supp. 2d 757, 763–64 (S.D. Tex. 2000).

4
argument what kinds of documents OSHA had withheld and which of

those documents Cooper had already obtained through discovery in

the tort case. Counsel for the DOL, to his credit, conceded that

the withheld material included some newspaper articles. The

ensuing exchange spurred the parties to advocate further filings.

Cooper sought to supplement the record with all the material in

OSHA’s file, urging that we examine this material in camera. The

DOL expressed opposition but voluntarily released to Cooper

everything in the OSHA file on the explosion except for eighteen

pages that the DOL believes truly merit withholding and seventeen

other pages that are subject to a protective order in the tort

case. We denied Cooper’s effort to supplement the record but

agreed to conduct an in camera review of the eighteen pages, a

review that our precedents permit4 and that we have now concluded.

II. ANALYSIS

We begin our analysis by noting several aspects of the FOIA

and the litigation it has engendered.

A. Standard of Review

We generally review a grant of summary judgment de novo,

applying the same standard as the district court.5 In most

litigation, a motion for summary judgment is properly granted only

4
See McCorstin v. United States Dep’t of Labor, 630 F.2d 242,
243 (5th Cir. 1980); Pope v. United States, 599 F.2d 1383, 1386
(5th Cir. 1979).
5
Morris v. Covan World Wide Moving, Inc., 144 F.3d 377, 380
(5th Cir. 1998).

5
if there is no genuine issue as to any material fact.6

The FOIA context is unusual, however, because the threshold

question in any FOIA suit is whether the requester can even see the

documents the character of which determines whether they can be

released. The requester would thus face an evidentiary Catch-22 if

the statute and the case law did not make allowances. The statute

“expressly places the burden ‘on the agency to sustain its action’

and directs the district courts to ‘determine the matter de

novo,’”7 giving no deference to the agency’s determinations.

Courts generally will grant an agency’s motion for summary judgment

only if the agency identifies the documents at issue and explains

why they fall under exemptions.8 The agency often makes this

explanation in an affidavit, but the affidavit “will not suffice if

the agency’s claims are conclusory, merely reciting statutory

standards, or if they are too vague or sweeping.”9 The D.C.

Circuit, the federal appellate court with the most experience in

this field, has held that because the burden to establish an

exemption remains with the agency, the district court should not

6
FED. R. CIV. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317,
322 (1986).
7
United States Dep’t of Justice v. Reporters Committee for
Freedom of the Press, 489 U.S. 749, 755 (quoting 5 U.S.C.
§ 552(a)(4)(B)).
8
See Summers v. Dep’t of Justice, 140 F.3d 1077 (D.C. Cir.
1998).
9
Hayden v. National Security Agency/Central Security Service,
608 F.2d 1381, 1387 (D.C. Cir. 1979).

6
grant summary judgment based on a “conclusory and generalized”

assertion, even if the FOIA requester has not controverted that

assertion.10 We view this rule as an appropriate way of

implementing the FOIA’s burden-of-proof allocation on summary

judgment.

B. Categorical or Fact-Specific

Summary judgment resolves most FOIA cases, but there are two

varieties of such judgment for FOIA purposes. Disposition of the

instant appeal turns on this distinction.

As the Supreme Court has advised, “for an appropriate class of

law enforcement records or information[,] a categorical balance may

be undertaken” in determining whether the records should be exempt

from disclosure; and in ruling categorically, the district court

need not examine each document in particular.11 This categorical

approach eases judicial review of FOIA cases, permitting swifter

administration and disposition of requests for records that fall

10
Niagara Mohawk Power Corp. v. United States Dep’t of Energy,
169 F.3d 16, 18 (D.C. Cir. 1999).
11
Reporters Committee, 489 U.S. at 777:
The [1986] amendment was originally proposed by the Senate[,]
which intended to replace a focus on the effect of a
particular disclosure ‘with a standard of reasonableness . .
. based on an objective test.’ S.Rep. No. 98-221, 24 (1983).
This reasonableness standard, focusing on whether disclosure
of a particular type of document would tend to cause an
unwarranted invasion of privacy, amply supports a categorical
approach to the balance of private and public interests in
Exemption 7(C).

7
into categories. Cases outside the “appropriate class,” however,

do not receive categorical treatment, depend on the specific

content of the records sought, and require closer examination of

the evidence. It is this residuum of cases that we refer to as

“fact-specific.”

Whether the district court ruled categorically or fact-

specifically here is not readily apparent. Its opinion is probably

best viewed as a categorical holding, because the court had little

detail on the requested material available to it: The 145 withheld

pages were not in the record, were not described in the Miller

declaration, and were not summarized in a Vaughn index or an

equivalently detailed affidavit.12 Furthermore, as the district

court noted, “the essential facts of this case are not in

dispute,”13 giving additional support for the conclusion that the

district court ruled categorically.14

12
A Vaughn index is a common FOIA procedural device that lists
the documents responsive to the request and explains why portions
have been withheld. See Vaughn v. Rosen, 484 F.2d 820 (D.C. Cir.
1973).
13
Cooper, 118 F. Supp. 2d at 759.
14
See Avondale Indus., Inc. v. NLRB, 90 F.3d 955, 958 (5th Cir.
1996) (“In the instant case, the parties do not dispute the
relevant facts. What the parties do dispute is whether particular
documents categorically fit within one of FOIA's prescribed
exemptions. . . . [T]his is a question of law to which the district
court is not entitled deference.”); Voinche v. Federal Bureau of
Investigation, 999 F.2d 962 (5th Cir. 1993) (holding in Freedom of
Information Act suit that “[s]ummary judgment is reviewed de novo,
under the same standards the district court applies to determine
whether summary judgment is appropriate”); Halloran v. Veterans
Admin., 874 F.2d 315, 320 (5th Cir. 1989) (“Because the district

8
 We do not view the district court’s lack of information on the

requested material as necessarily dooming a fact-specific ruling.

But such a holding requires a strong awareness that general

procedural principles and the evidentiary realities of FOIA

litigation interact to allocate the burden of persuasion unusually.

C. FOIA’s Purpose

That allocation attempts to effectuate FOIA’s “general

philosophy of full agency disclosure”15 and its purpose of

facilitating public access to agency documents.16 FOIA’s drafters

intended it to “pierce the veil of administrative secrecy and to

open agency action to the light of public scrutiny.”17 Therefore,

in judging agencies’ attempts to withhold information, courts use

a “strong presumption in favor of disclosure.”18

The statute, however, does not carry this philosophy to the

point of impracticality. Congress recognized that disclosure of

some types of information would be unwise, and therefore wrote in

court based its decision not upon the unique facts of this case,
but upon categorical rules regarding what does and does not
constitute an invasion of privacy for FOIA purposes, we treat its
conclusions as conclusions of law, and thus review them de novo.”).
15
Dep’t of the Air Force v. Rose, 425 U.S. 352, 360 (1976)
(quoting S. REP. NO. 813, 89th Cong., 1st Sess., 3 (1965)).
16
John Doe Agency v. John Doe Corp., 493 U.S. 146, 151 (1989).
17
Rose, 425 U.S. at 361.
18
United States Dep’t of State v. Ray, 502 U.S. 164, 173
(1991). See also Reporters Committee, 489 U.S. at 762; Halloran,
874 F.2d at 318–19.

9
statutory exemptions that enable agencies to overcome the general

presumption. Two such exemptions are at issue here.

D. Applicable Exemptions

1. Exemption 7(C): Unwarranted Invasion of Personal Privacy

FOIA’s exemption 7(C) provides that an agency’s duty to

disclose records shall not apply to

records or information compiled for law enforcement purposes,
but only to the extent that the production of such law
enforcement records or information . . . (C) could reasonably
be expected to constitute an unwarranted invasion of personal
privacy.19

To determine whether this exemption applies, we must first

determine whether the records were compiled for law-enforcement

purposes; if they were, then we must weigh the public’s interest in

disclosure against the individual’s right to privacy.20

a. Law-Enforcement Purpose

Although Cooper contends that OSHA’s records were not

“compiled for law enforcement purposes,”21 this contention is feeble

at best. Congress obviously intended OSHA inspections to be part

of an enforcement program,22 and in this case OSHA acted pursuant

19
5 U.S.C. § 552(b)(7)(C).
20
See Ray, 502 U.S. at 175.
21
5 U.S.C. § 552(b)(7).
22
See 29 U.S.C. § 651(b), which declares a congressional
“purpose and policy” to
assure . . . safe and healthful working conditions and to
preserve our human resources--
. . .
(10) by providing an effective enforcement program which shall

10
to its statutory mandate to inspect workplaces, question employees,

and cite employers that violate safety and health regulations.23

Although the specific OSHA context is new for this Circuit, we have

previously held that other agencies’ civil law–enforcement records

fall under exemption 7.24

In its effort to overcome that holding, Cooper asserts that

OSHA has not met its burden of showing a law-enforcement purpose in

this case.25 Even if we assume without granting that OSHA is a

“mixed function” agency which has both law-enforcement and other

missions, OSHA need only show that it actually assembled the

requested records for a law-enforcement purpose,26 that is, in a

include a prohibition against giving advance notice of any
inspection and sanctions for any individual violating this
prohibition.
23
See 29 U.S.C. § 657–58. Section 659, entitled “Enforcement
procedures,” enables OSHA to assess penalties against employers
found in violation of occupational safety standards. Section 666
permits civil penalties of up to $70,000 and, for a willful or
repeated violation, criminal penalties of up to a year in prison.
24
See Pope, 599 F.2d at 1386 (holding that enforcing regulation
of legal practice before the IRS was a “law enforcement purpose”
under exemption 7, which covers “civil and regulatory proceedings
as well as [ ] criminal matters”); Evans v. Dep’t of
Transportation, 446 F.2d 821, 823 (5th Cir. 1971) (applying
exemption 7 to investigative records of the Federal Aviation
Administration).
25
See Avondale, 90 F.3d at 962 (“[T]he Government has the
burden of proving the existence of such a compilation for such a
purpose.”).
26
See Pratt v. Webster, 673 F.2d 408, 420–21 (D.C. Cir. 1982).

11
focused inquiry on specific violations of the law.27 Here, evidence

of such a focused inquiry pervades the record: OSHA inspected the

Mont Belvieu plant to determine whether Lyondell violated safety

standards.

We reject out of hand Cooper’s contentions on this point and

move on to the crux of exemption 7(C): determining and weighing

the privacy and public interests.

b. Privacy Interest: Preventing Employer Retaliation

To analyze privacy interests here, we distinguish among three

types of information in OSHA’s file. We shall refer to these types

of information as (1) identity, (2) linking, and (3) substantive.

Identity information includes basic personal data such as the

witness’s name, address, telephone number, and Social Security

number. This type of information is not at issue in this case.

Ever since the administrative appeal before the DOL, Cooper has

consistently emphasized that it does not seek any identity

information in the deponents’ statements. In any event, the case

law consistently supports agency redactions of identity

information.28

Substantive information here would be the bare facts about the

27
See Church of Scientology v. Dep’t of the Army, 611 F.2d 738,
748 (9th Cir. 1980); Rural Housing Alliance v. United States Dep’t
of Agriculture, 498 F.2d 73, 81–82 (D.C. Cir. 1974).
28
See, e.g., SafeCard Services, Inc. v. S.E.C., 926 F.2d 1197,
1206 (D.C. Cir. 1991) (holding identity information about
individuals categorically nondisclosable) (collecting cases).

12
explosion. OSHA does not allege any privacy interest with respect

to substantive information.

Linking information lies at the core of OSHA’s argument. If

disclosed, linking information, in combination with data from other

sources (including the depositions), could enable Lyondell to

determine which deponent told OSHA what. This possibility caused

the district court to find that the deponents “face[d] a myriad of

possible adverse consequences [to] themselves, their families, and

their jobs if their statements are disclosed.”29 Left unstated by

the district court, but emphasized by OSHA, is the possibility

that, even though OSHA has closed its investigation, Lyondell could

retaliate against witnesses who gave OSHA information that would

damage Lyondell in the tort case.

The cases generally support a privacy interest in preventing

employer retaliation. The Supreme Court has held that a fairly

analogous interest against retaliation —— by the Haitian government

against persons who had attempted to enter the United States ——

“must be given great weight” in a FOIA case, and on that basis

upheld the State Department’s redaction of identity information

from interview summaries that it released.30 In the OSHA context,

even before an amendment in 1986 eased agencies’ burden in

withholding records under exemption 7(C), other courts acknowledged

29
Cooper, 188 F. Supp. 2d at 762.
30
Ray, 502 U.S. at 177.

13
that workers have a privacy interest in OSHA’s records. The

district court relied on these cases for the proposition that

“courts protect identities of employee-witnesses in the course of

an OSHA investigation with respect to information that was given to

the agency.”31 These cases do not, however, support OSHA’s refusal

to disclose entire witness statements. Rather, two of these

opinions upheld OSHA’s redaction only of witnesses’ names,

addresses, and other identity information.32 The third affirmed

OSHA’s refusal to release “any statement that might reveal

[employee-witnesses’] identities,” —— linking information —— but it

did so under exemption 7(D).33

Whether a privacy interest against employer retaliation exists

in this case depends on whether we treat this case categorically or

fact-specifically. Because this dichotomy affects two other

31
Cooper, 118 F. Supp. 2d at 761.
32
See Cuccaro v. Secretary of Labor, 770 F.2d 355, 359–60 (3d
Cir. 1985) (“OSHA withheld those portions of documents which
contained the home addresses and names of employees and employee
representatives and names of employees contacted during the
investigations.”); Miles v. United States Dep’t of Labor, 546 F.
Supp. 437, 440–41 (M.D. Pa. 1982) (“In this case, the names and, in
some instances, addresses and telephone numbers of persons
contacted during OSHA's investigation or otherwise identified in
the file were deleted pursuant to this exemption.”).
33
Lloyd and Henniger v. Marshall, 526 F. Supp. 485, 487 (M.D.
Fla. 1981) (emphasis added). “The material plaintiff seeks in this
action is of three types: certain opinions and recommendations of
the compliance officer that investigated the accident, the home
addresses of certain witnesses to the accident and of several
employees, and those portions of certain witnesses’ statements that
would reveal the identities of the witnesses.” Id. (emphasis
added).

14
aspects of this case, we will resolve it after we discuss them.

c. Public Interests: Monitoring OSHA’s Activities and
Effective OSHA Enforcement

The public interest militating against FOIA exemption 7(C) is

the interest of the general public in monitoring its government.

Justice Douglas famously described this underlying rationale as

“the principle that a democracy cannot function unless the people

are permitted to know what their government is up to.”34 More

recently, the Supreme Court stated:

FOIA’s central purpose is to ensure that the Government’s
activities be opened to the sharp eye of public scrutiny, not
that information about private citizens that happens to be in
the warehouse of the Government be so disclosed.35

We have recognized, as a corollary of these democratic

principles, that the “specific motives of the party making the FOIA

request are irrelevant.”36 Importantly for this case, the rights

of the requester “are no different from those that might be

asserted by any other third party, such as a neighbor or

prospective employer.”37 Justice Ginsberg has noted that this “main

rule serves as a check against selection among requesters, by

agencies and reviewing courts, according to idiosyncratic

34
Environmental Protection Agency v. Mink, 410 U.S. 73, 105
(1973) (Douglas, J., dissenting) (internal citation omitted).
35
Reporters Committee, 489 U.S. at 774.
36
Halloran, 874 F.2d at 323.
37
Reporters Committee, 489 U.S. at 771.

15
estimations of the request’s or requester’s worthiness.”38

Therefore, although we suspect that Cooper seeks the deponents’

statements to impeach testimony in the tort suit, our suspicion

counts neither in favor of nor against Cooper’s FOIA request.

(This said, it is also settled law that FOIA was not intended to be

a substitute for discovery.39)

Cooper asserts that the public has an interest in determining

whether OSHA inquired into employee training standards, early

warning systems, failure of controls, and development of safe work

practices, each of which is governed by OSHA regulations. Cooper

has also described the public interest here as one in knowing

whether the government adequately ensured that Lyondell safely

stored millions of barrels of volatile petrochemicals. (The record

certainly indicates that the gas release and explosion threatened

38
United States Dep’t of Defense v. Federal Labor Relations
Authority, 510 U.S. 487, 508 (1994) (Ginsburg, J., concurring).
39
See John Doe Agency, 493 U.S. at 153 (“In deciding whether
Exemption 7 applies, moreover, a court must be mindful of this
Court’s observations that the FOIA was not intended to supplement
or displace rules of discovery.”); NLRB v. Sears, Roebuck & Co.,
421 U.S. 132, 143 (1975) (stating that FOIA’s primary purpose was
not to benefit private litigants or to substitute for civil
discovery); Columbia Packing Co. v. United States Dep’t of
Agriculture, 563 F.2d 495 (1st Cir. 1977) (“(T)he disclosure
provisions of FOIA are not a substitute for discovery and a party’s
asserted need for documents in connection with litigation will not
affect, one way or the other, a determination of whether disclosure
is warranted under FOIA.”).
Neither is FOIA the employees’ only shield against employer
retaliation. OSHA forbids employers from discriminating against
employees who have exercised their rights under the statute. 29
U.S.C. § 660(c).

16
the general public: passers-by on a nearby highway actually drove

through the hydrocarbon cloud before it ignited.)

On balance, the cases suggest that there is a cognizable

public interest in monitoring agencies’ enforcement of the law in

specific instances. The Supreme Court found a public interest in

the release of witness interviews that would show whether the State

Department was adequately monitoring Haiti’s compliance with its

commitment not to persecute refugees.40 Those interviews, the Court

noted, would “reveal how many returnees were interviewed, when the

interviews took place, [and] the contents of individual

interviews.”41 Similarly, the Court has also held that redacted

summaries of disciplinary hearings at the United States Air Force

Academy “would explain how the disciplinary procedures actually

functioned and therefore were an appropriate subject of a FOIA

request.”42

We have reached the same conclusion in similar cases. We

recently held that the public had an interest in knowing the

content of award orders issued by the Army during the Vietnam War,

both as historical records and as means by which watchdog groups

could root out fraudulent claims to military decorations.43 More

40
Ray, 502 U.S. 164 at 178.
41
Id.
42
Reporters Committee, 489 U.S. at 773.
43
Sherman v. United States Dep’t of the Army, 24 F.3d 357, 366
(5th Cir. 2001).

17
analogously to this case, we held that voting lists in a union

election gave the requester “information which it needs to

determine whether the NLRB is properly conducting its elections,”

because the requester alleged instances of vote fraud.44 And

perhaps most on point, because we were considering an agency’s

investigation of a single possible violation, we have held that

“the public has an interest in learning about the nature, scope,

and results of the [Veterans Administration’s] investigation of,

and its relationship with, one of its contractors.”45

The DOL offers a line of cases from the D.C. Circuit to

suggest that Cooper must bolster the general public interest in

monitoring official actions with a showing of agency irregularity

or illegality, which concededly is absent here. Those cases,

however, are inapposite. One involved a highly tenuous public

interest: The court upheld the National Park Service’s refusal to

release photographs of Vincent Foster’s suicide wounds because the

requester had not shown any evidence that four investigating

agencies had falsified the cause of death.46 The public interest

at stake here is much broader and more substantial and could be

asserted by environmental watchdog groups, researchers into OSHA’s

enforcement practices, neighbors of the Mont Belvieu plant, or

44
Avondale, 90 F.3d at 955.
45
Halloran, 874 F.2d at 324.
46
Accuracy in Media, Inc. v. National Park Service, 194 F.3d
120, 122, 124 (D.C. Cir. 1999).

18
drivers on the beclouded highway. The other cases relied on by

OSHA upheld agency redaction of names and addresses from released

documents, not the withholding of entire records, because the

requester had not shown agency illegality or wrongdoing that would

justify following up with individuals mentioned in the records.47

As Cooper does not seek identity information, no showing of agency

irregularity or illegality is required here.

The district court did not state whether Cooper had succeeded

in making out a public interest.48 Rather, the court agreed with

OSHA that there was a public interest in nondisclosure because

“disclosure of private witness information would undermine [OSHA’s]

investigative powers” by chilling future cooperation.49 For

evidentiary support of this proposition, OSHA cited the Miller

declaration, which broadly stated the agency’s policy position on

this point. We view the declaration as supporting a categorical

holding, but not a fact-specific one.

47
See McCutchen v. United States Dep’t of Health and Human
Services, 30 F.3d 183, 184, 188–89 (D.C. Cir. 1994) (explaining
that “A mere desire to review how an agency is doing its job . . .
does not create a public interest sufficient to override the
privacy interests protected by Exemption 7(C)” and on that basis
affirming redaction of names of investigated scientists and
complainants against them); SafeCard Services, 926 F.2d at 1206
(“We now hold categorically that, unless access to the names and
addresses of private individuals appearing in files within the
ambit of Exemption 7(C) is necessary in order to confirm or refute
compelling evidence that the agency is engaged in illegal activity,
such information is exempt from disclosure.”).
48
Cooper, 118 F. Supp. 2d at 762–63.
49
Id.

19
 In two ways, therefore, our 7(C) analysis turns on how we

resolve the categorical/fact-specific dichotomy. Our analysis of

the confidentiality exemption raises this dichotomy for the third

and final time.

2. Exemption 7(D): Disclosure of Identity of a Confidential
Source

OSHA also relied on exemption 7(D), which provides that FOIA

does not apply to

records or information compiled for law enforcement
purposes, but only to the extent that the production of
such...records or information...(D) could reasonably be
expected to disclose the identity of a confidential
source..., and, in the case of a record or information
compiled by criminal law enforcement authority in the
course of a criminal investigation or by an agency
conducting a lawful national security intelligence
investigation, information furnished by a confidential
source.

It is readily apparent from exemption 7(D)’s language, unlike that

of exemption 7(C), that Congress distinguished between the identity

of the source and the information imparted by that source. Under

7(D), the government has clear statutory authority to withhold both

the source and the information with respect to criminal

investigations; but neither OSHA nor the district court

characterizes the Mont Belvieu investigation as criminal.50 Thus

the criminal cases that OSHA and the district court cite with

respect to exemption 7(D) do not control here. Neither is national

50
OSHA can impose criminal penalties only in cases of (1)
employee death; (2) advance notice of an inspection, or (3) a false
statement. 29 U.S.C. § 666.

20
security involved here. We are therefore dealing with only the

first prong of 7(D), disclosure of the identity of a confidential

source.

The Supreme Court has emphasized that the issue under

exemption 7(D) is “not whether the requested document is of the

type that the agency usually treats as confidential, but whether

the particular source spoke with an understanding that the

communication would remain confidential.”51 Such an understanding

can arise either explicitly, through the government’s assurances to

the source, or implicitly, through the facts or circumstances

surrounding the source’s statement.52

a. Express Confidentiality

Regarding explicit confidentiality, one portion of the Miller

declaration —— the sole affidavit supporting OSHA’a nondisclosure

—— vaguely states that according to standard procedure, OSHA

assured the deponents that their statements would remain

confidential.53 The district court seems to have accepted this bald

conclusion when it held that “[t]he record indicates that all

employee-witnesses. . .were explicitly. . .assured the utmost

51
United States Dep’t of Justice v. Landano, 508 U.S. 165, 172
(1993).
52
Id. at 172.
53
Miller declaration at 4 (“[T]he government has expressly
assured the statement-givers that their identities would be held in
confidence with respect to what they told the agency.”).

21
confidentiality.”54 This was error, for another passage of the

Miller declaration reflects that Ms. Miller had no idea whether the

OSHA inspector provided explicit assurances.55 The government

cannot meet its burden with an internally inconsistent, self-

contradictory affidavit.

OSHA nevertheless urges that, because it is its established

policy explicitly to assure employee-witnesses of confidentiality,

we should presume regularity in the inspector’s actions in this

case. Regardless of whether this argument accurately depicts

OSHA’s standard procedures,56 the sole case from this Circuit that

OSHA cites for this presumption is a wholly inapposite habeas

corpus case in which we presumed that a district attorney, “as an

officer of the court,” acted constitutionally in interviewing a

criminal defendant.57 OSHA inspectors are not officers of the

court, and there is no constitutional question here.

54
Cooper, 118 F. Supp. 2d at 763.
55
Miller declaration at 2:
It is established procedure for OSHA Compliance Safety and
Health Officers [ ] to assure all employee-witnesses
interviewed that their identities will be protected with
respect to what they relate to the agency. There is no reason
to believe this case was any exception.
56
See OSHA Field Inspection Reference Manual CPL 2.103 § 6 ch.
IIA.4.e(5)(a) (emphasis added):
Interviews shall normally be reduced to writing, and the
individual shall be encouraged to sign and date the statement.
The [OSHA investigator] shall assure the individual that the
statement will be held confidential to the extent allowed by
law, but they may be used in court/hearings.
57
See Nash v. Estelle, 597 F.2d 513, 518 (5th Cir. 1979).

22
 Furthermore, recent cases from the D.C. Circuit strongly

suggest that a presumption of regular explicit confidentiality

should not arise in the FOIA context. For example, in a FOIA case

that grew out of a criminal investigation, that court rejected the

FBI’s similarly conclusional assertions of obvious express

confidentiality:

This may be obvious to the affiant, but it is not obvious
to us. This bald assertion that express assurances were
given amounts to little more than recitation of the
statutory standard, which we have held is insufficient.
. . .
At the very least the government must indicate where
these assurances of confidentiality are memorialized.58

We agree with this standard.

Here, OSHA has given us no such indication, and our in camera

review of the requested material unearthed no evidence of express

assurances. (One statement was even signed by two Lyondell

superintendents in addition to the interviewed employee.) Its

inspector may have given explicit assurances of confidentiality,

but OSHA has not proven this.

b. Implied Confidentiality

The government can establish implied confidentiality in two

ways: by specifically showing that circumstances surrounding the

investigation support an inference of confidentiality or by

58
Billington v. United States Dep’t of Justice, 233 F.3d 581,
585 (D.C. Cir. 2000) (citing Campbell v. United States Dep’t of
Justice, 164 F.3d 20, 30 (D.C. Cir. 1998) (“[T]he affidavits must
show, with reasonable specificity, why the documents fall within
the exemption.”)).

23
categorically establishing that a class of records merits a

presumption of confidentiality.

To determine whether to presume that employee-witnesses’

statements to OSHA generally are categorically confidential gives

us our first chance to interpret United States v. Landano.59 There,

an inmate convicted of murdering a police officer sought the FBI’s

files on the case, and the Bureau responded with an affidavit

asserting that those sources it redacted should be presumed

confidential.60 The Supreme Court held that the FBI’s files were

not entitled to a presumption of inferred confidentiality, although

“more narrowly defined circumstances” can support an inference, and

“when circumstances such as the nature of the crime investigated

and the witness’ [sic] relation to it support an inference of

confidentiality, the Government is entitled to a presumption.”61

Such circumstances would include cases in which an informant has

witnessed a gang-related murder or is paid to squeal.62

An authoritative survey of post-Landano cases concludes that

other courts have found a categorical presumption of implied

confidentiality in investigations of

organized crime, murder, drug trafficking, extortion,

59
United States Dep’t of Justice v. Landano, 508 U.S. 165
(1993).
60
Id. at 167–68.
61
Id. at 181.
62
Id. at 179.

24
 illegal possession of firearms, domestic terrorism,
national security, loan sharking and gambling, armed bank
robbery, bribery, interstate transportation of stolen
property, and passport fraud and contempt of Congress.63

No stretch of the ejusdem generis maxim can shoe-horn the instant

investigation into the class illustrated by that list. For us to

hold on the strength of that survey that OSHA’s investigative

records, as a category, are implicitly confidential would be

unwarranted and would plow new ground.

The second way implied confidentiality can arise is through

the specific circumstances of a particular investigation. Once

again, the record is bare on this point. The Miller declaration

makes a strong categorical case, but its assertions with respect to

the deponents’ statements here are baldly conclusional.

OHSA cites a case from the Eleventh Circuit, L & C Marine, for

the principle that such conclusional statements can establish

implied confidentiality in particular instances. In that case,

however, OSHA released “most of the file” on a maritime accident,

deleting “names, addresses and other identifying information”; and

the government filed an affidavit from the OSHA inspection officer

who had interviewed the four witnesses to the accident.64 Language

from L & C Marine supporting a “presumption” refers not to the

presumption that OSHA would have us apply here, but rather to the

63
U.S. Department of Justice, FREEDOM OF INFORMATION ACT GUIDE &
PRIVACY ACT OVERVIEW 416–18 (GPO 2000) (collecting cases).
64
L & C Marine Transport, Ltd. v. United States, 740 F.2d 919,
921–22 (11th Cir. 1984).

25
presumption that OSHA may offer confidentiality to witnesses

without waiting for them to ask for it.65 Indeed, L & C Marine

suggests that no presumption of implied confidentiality should

exist in the OSHA context, and that OSHA must show specific facts

to justify it. Such specifics being absent from this record, we

find no implied confidentiality here.

c. Summary

To summarize, OSHA has not made a sufficient factual showing

in this case with respect to either explicit or implied

confidentiality. Exemption 7(D) therefore does not protect the

material at issue —— unless we treat this case categorically.

E. Framing the Case

Three issues, and therefore both exemptions, turn on whether

we treat this case categorically or fact-specifically. As general

propositions, (1) the privacy interest against employer

retaliation, (2) the public interest in effective OSHA enforcement,

and (3) the rationale for implied confidentiality for workers who

give statements, are all categorically valid; but they have little

purchase here because of the specific facts of this case. Thus, a

categorical treatment would tip in OSHA’s favor; a fact-specific

treatment would swing the case Cooper’s way. We must, therefore,

resolve this dichotomy.

1. Categorical Approach

65
Id. at 924 n.5.

26
 The Supreme Court teaches that “categorical decisions may be

appropriate and individual circumstances disregarded when a case

fits into a genus in which the balance characteristically tips in

one direction.”66 As OSHA contends, employees who consent to

interviews may want and expect the agency to keep their statements

private and their identities confidential. Framed thus, on the

categorical plane, there is no issue of material fact with respect

to either exemption. Cooper has presented no evidence to counter

OSHA’s general assertion that, to obtain the information that it

needs to enforce the law, the agency must safeguard the anonymity

of employee-witnesses. Therefore, under exemption 7(D), implied

confidentiality exists; and under exemption 7(C), the combination

of the privacy interest against employer retaliation and the

public interest in effective enforcement trumps the public’s

interest in monitoring OSHA’s investigation into the explosion and

fire. We could hold, therefore, that statements to OSHA by

employee-witnesses are a characteristic genus suitable for

categorical treatment. Generally, the context of many OSHA

investigations, in which employee informants alert the agency to

workplace violations that might otherwise go unnoticed, would

support that holding. Even if potentially justifiable in another

case, however, such an outcome strikes us as unsustainable here.

As the following fact-specific discussion will show, applying such

66
Reporters Committee, 489 U.S. at 776.

27
a general rule to the instant case, much less announcing it here,

would be imprudent if not just plain wrong, and might require us

concomitantly to create an exception. We therefore decline to view

this case categorically, analyzing it fact-specifically instead.

2. Fact-Specific Approach

With respect to the three issues to which a categorical

holding might be possible, the operable facts before us are so

unsupportive of categorical treatment that they mandate resolution

of this case on its own merits. The fire and explosions were

widely publicized. OSHA learned of the explosion from the news

media, not from an informant. Bass, Hutter, and Squier were the

only employees on duty when the explosion occurred and the fire

began, so common sense would have OSHA interview them as soon as it

learned about the explosion. The fact that those individuals gave

statements to OSHA is known to Lyondell, which also possesses their

very detailed depositions. Nothing in the record even suggests

that Lyondell has threatened retaliation against the deponents,

whom the district court’s opinion named.

The Miller declaration does not describe why release of

linking information in the requested material would impede

effective OSHA investigations, threaten the privacy of persons

mentioned in that material, or reveal confidential identities.67

67
See Alirez v. NLRB, 676 F.2d 423, 428 (10th Cir. 1982) (“The
problems in undertaking to decide which portions of an employee’s
statement may be released to his employer without revealing that
employee’s identity are enormous, if, indeed, not insoluble.

28
The declaration simply does not address the unusual circumstances

before us. On a fact-specific approach, the Miller declaration

simply does not carry the government’s burden of proof.

Furthermore, our thorough in camera review confirms our belief

that —— with the exception of one page of material —— linking

information in the requested material is not exempt from

disclosure. Compared to the depositions, the deponents’ statements

give fresher accounts of the explosion and fire, more specifics on

the witnesses’ impressions and emotional reactions, and better

descriptions of what the deponents did to help put out the fire.

As far as we can tell, none of this detail contradicts the

depositions sufficiently to further substantiate the possibility of

employer retaliation; neither is any of it personally private. The

fourth statement, of which we only became aware as a result of our

in camera review, has already been seen by two Lyondell

supervisors, who signed it. (To describe the one page that we

conclude is exempt would threaten that which the exemptions

protect; this we decline to do.)

On the fact-specific level, therefore, the evidence does not

support summary judgment for OSHA. On the contrary, it supports

summary judgment for Cooper. Under these facts, in the context of

Merely deleting the name from the statement would not insure
against identification, since the employee’s narrative, or part of
it, may be such that the employer could identify the employee
involved, or could narrow the group down to two or three
employees.”) (emphasis added). Here, of course, the group is
already narrowed down.

29
exemption 7(C), the public interest in monitoring OSHA’s

investigation outweighs any possible interest in effective

enforcement or protection of employees from retaliation, neither of

which has sway here. Similarly, under exemption 7(D), the record

is essentially devoid of evidence to support a finding of implicit

confidentiality. In closing, we emphasize that each fact-specific

analysis depends on the discrete facts before the court that

conducts the review.

III. CONCLUSION

The identity information in the requested material is exempt

from disclosure under FOIA, but the linking information is not.68

We affirm the district court with respect to the identity

information but reverse with respect to the linking information.

To avoid the waste of judicial resources, time, and money, we shall

not remand to the district court to repeat the same in camera

review that we have undertaken ourselves. Instead, we render

judgment for Cooper, ordering OSHA to furnish Cooper forthwith

copies of the three deponents’ statements and the fourth statement

as well, after redacting all identity information (i.e., names and

addresses, including those of other witnesses and of the OSHA

68
Our result here accords with the view of two justices in Ray,
who urged in the exemption 6 context that courts should focus
“solely upon what the requested information reveals, not upon what
it might lead to.” Ray, 502 U.S. at 180 (Scalia, J., concurring).
See also Sherman, 244 F.3d at 366 n.10 (noting that the Supreme
Court has reserved judgment on this “derivative use” issue).
Because we conclude that OSHA should release linking information
here, our holding does not implicate the “derivative use” theory.

30
inspector) but redacting no other information. OSHA may

nevertheless continue to withhold page number 19 in the agency’s

sealed filing.

AFFIRMED in part, REVERSED in part, and RENDERED.

31