with your request to make these lesson plans available to you, we regret that this is not possible on several counts.

First, the Compliance Safety and Health Officers training course is designed especially for our own OSHA personnel. At this time, the OSHA's are receiving priority consideration with respect to training spaces at the Institute. Second, the lesson plans are continually being updated in light of new information generated within OSHA and at the Institute. You, then, can appreciate the immense task we would be faced with by having to develop and distribute copies of the updated material to all interested parties.

However, we do offer a viable alternative. The basic material used in the OSHA lesson plans is readily available from two sources. One is the Compliance Operations Manual. The other is the May 29, 1971 and subsequent editions of the Federal Register which contains the Occupational Safety and Health Administration Standards. We are enclosing a copy of each of these publications for your use. Additional copies may be purchased from the Superintendent of Documents, U.S. Government Printing Office, Washington, D.C. 20402.

Thank you for writing. We trust the enclosed material will be helpful to you. Sincerely,

Enclosures.

CHARLES JEKOFSKY, Safety Officer, Office of Training and Education.

U.S. DEPARTMENT OF LABOR,

OCCUPATIONAL SAFETY AND HEALTH ADMINISTRATION,
Washington, D.C., June 16, 1972.

MCNEILL STOKES, Esq.,

Stokes, Boyd, & Shapiro,

Attorneys at Law, Atlanta, Ga.

DEAR MR. STOKES: This is in response to your request by letter dated June 7, 1972, addressed to Mr. Wallach for copies of "The Training Course for Compliance Safety and Health Officers", which is used to train inspectors of the Occupational Safety and Health Administration. Your request is made under the Freedom of Information Act (5 U.S.C. section 552).

Your request is hereby denied. The "Training Course" is not considered an administrative manual which must be disclosed under subsection (a)(2) (C) of the aforementioned Act because it is excepted as matter "related solely to the internal personnel and practices of an agency" within the meaning of subsection (b) (2) of the Act. See generally section 70.23 of Title 29, Code of Federal Regulations, (37 F.R. 5912, March 22, 1972), the relevant Department of Labor rule, which applies Exemption (2) to training materials.

Moreover, we are unconvinced that the "Training Course" is an administrative staff manual or an instruction to staff that would a"affect a member of the public" within the meaning of 5 U.S.C. section (a) (2) (C). All instructions provided to inspectors which do have an effect upon members of the public have already been published, and are offered for sale by the Government Printing Office. Here, reference is made to the Compliance Operations Manual (OSHA2006, January 1972).

In further support of our position see also Attorney General's Memorandum on the Public Information Section of the APA, p. 34 (June 1967). Pursuant to section 70.49 of the aforementioned rules of the Department of Labor, you are hereby advised that you may appeal this denial to the Solicitor of Labor within 90 days from the date of the denial. The decision of the Solicitor shall be the final action of the Department of Labor. Section 70.49 also requires that you be advised that the Freedom of Information Act provides for review in the Federal district courts of an agency's withholding of records under the Act. In any judicial proceeding, the court would determine the matter de novo. See generally 5 U.S.C. 552 (a) (3).

Sincerely,

PRESTON T. FARISH, Director, Office of Program Operations.

Certified Mail No. 918376, Return Receipt Requested.

Re Appeal of denial of the Director of the Office of Program Operations of the Occupational Safety and Health Review Commission to furnish McNeill Stokes and Lewis C. Barbee copies of the "Training Course for Compliance Safety and Health Officers".

SOLICITOR OF LABOR,
Department of Labor,
Washington, D.C.

GENTLEMEN: Pursuant to Section 70.49 of the Code of Federal Regulations (37 F.R. 5912, March 22, 1972), McNeill Stokes and Lewis C. Barbee hereby appeal the denial of their request and demand for copies of the Training Course for Compliance Safety and Health Officers made June 7, 1972. A copy of said request and demand under the provisions of the Freedom of Information Act, dated June 7, 1972, is attached hereto marked Exhibit "A" and incorporated by reference herein. A copy of the denial of said request by the Director of the Office of Program Operations, Occupational Safety and Health Administration, dated June 16. 1972, is attached hereto marked Exhibit "B" and incorporated herein by reference.

The above stated Training Course is used to train inspectors of the Occupational Safety and Health Administration, who, following the training course, inspect the workplaces of employers affecting commerce. The Training Course is clearly a staff manual and instructions to staff that affect members of the public. We again hereby tender the standard fees of the Department of Labor for copying said Training Course.

DEAR MR. STOKES: This will reply to your letter of July 26, 1972 appealing from the denial by the Occupational Safety and Health Administration of the request made by you and Mr. Lewis C. Barbe under the Freedom of Information Act (FIA) for copies of the Training Course for Compliance Safety and Health Officers.

Please be advised that the appeal is denied in the light of the FIA and the applicable Departmentof Labor regulations, 29 CFR Part 70. The reasons for my decision are as follows.

Exemption (2) of the Act, 5 USC 552(b) (2), provides that the FIA's disclosure requirements are not applicable to matters related solely to the internal personnel rules and practices of any agency. The Training Course, which as you say in your appeal is a manual used to train inspectors of the Occupational Safety and Health Administration, is a document of the type covered by exemption (2). Although, as you also state, subsection (a) (2) (C) of the FIA provides for public availability of administrative staff manuals and instructions to staff that affect a member of the public, the word "administrative" limits the kinds of manuals covered by this provision to those which pertain to administrative matters rather than to law enforcement matters. City of Concord v. Ambrose, 333 F. Supp. 958.959 (N.D. Calif.). As the Court of Appeals for the Second Circuit has said, subsection (a)(2)(C) is subject to the limitations on disclosure imposed by exemption (2). Polymers v. NLRB, 414 F.2d 999, 1005-1006 (CA 2), cert. den. 39 US 1010.

§ 70.23 (a) of the Department's regulations provides, in part, that matters falling within exemption (2) as being solely related to internal personnel rules and internal practices include "staffing policies and procedures for the * * * training * * * of employees. Also included are records concerning operating rules, practices, guidelines, and procedures for Departmental investigators, inspectors, compliance officers, examiners, and attorneys ***." Hence the training Course is, under the express language of the regulations, a record of the type which the Department may refuse to disclose.

$ 70.23 as a whole is. generally speaking, designed to state the well recognized proposition that "[o]perating rules, guidelines, and manuals of procedure for Government investigators or examiners would be exempt from disclosure" as matters related solely to the internal personnel rules and practices of an agency. H. Rept. No. 1497, 89th Cong., p. 10. See also S. Rept. No. 813, 89th Cong., p. 2;

Attorney General's Memorandum on the Public Information Section of the Administrative Procedure Act, pp. 30-31.

The courts have agreed with this view. For example, in the Polymers case, supra, the court upheld the refusal of the NLRB to produce a document, “Guide to the Conduct of Elections", which was "said to be an internal advisory docu ment for the use of Board personnel ***." 414 F. 2d at p. 1006. As such, the court felt that the Guide fell within both exemptions (2) and (5) (inter-agency memoranda) of the FIA.

To the same effect is Cuneo v. Laird, 40 LW 2543 (DC Colo.). There the court held that the non-public portions of the Contract Audit Manual prescribing techniques for use by Defense Contract Audit Agency auditors in examining books and records of Government contractors was exempt from disclosure under FIA exemptions (2) and (5). As the court said, giving the exempt material to defense contractors "would be comparable to requiring one football team to give its 'play book' to the opposing team before a game."

A training manual for Government compliance and enforcement personnel of course falls in the same category as the manuals in the Polymers and Cuneo cases. The previously mentioned City of Concord case involved texts used by the Bureau of Customs to train law enforcement agents. Preliminary to reaching its conclusion, the court made the pertinent observation that it "takes no peculiar ability in crime detection nor any imagination to conclude that the nature of instruction that the Government gives to its law enforcement agents could be of interest to those against whom such techniques are used, and that disclosure of that information would tend to materially lessen the effectiveness of the techniques described and taught." 333 F. Supp. at p. 959. The court then held, for reasons detailed at length on p. 960, that the manual in question constituted instructions to law enforcement personnel and was not an administrative staff manual required to be made publicly available by subsection (a) (2) (C). The court also plainly indicated, although stating that it did not need to reach the issue because of its holding under subsection (a), that it could have held subsection (b)(2), which is exemption (2), to cover the training texts.

$$ 70.11 and 70.22(b) of the regulations provide, briefly, that even though a particular record is not required by the Act to be disclosed, records falling within the categories covered by several exemptions including (2) may be made available to the extent, but only to the extent, that the appropriate Departmental official determines that such disclosure will further the public interest and will not impede the discharge of any of the Department's functions. $70.23 deals specifically with exemption (2). Subsection (c) provides that a discretionary determination (under §§ 70.11 and 70.22(b)) to release documents protected by this exemption ordinarily cannot be made in the case of internal rules and instructions relating to investigations and enforcement activities concerned with questions of compliance with or violations of law.

As shown above, there are two categories of staff manuals, first, administrative staff manuals and instructions to staff affecting a member of the public which are disclosed under FIA subsection (a) (2) (C) and § 70.15 of the regulations, and second, law enforcement manuals which are protected from disclosure by subsection (b)(2) (exemption (2)) and section 70.23 of the regulations since they are related solely to the internal personnel rules and practices of an agency. An example of the first category is the Compliance Operations Manual (OSHA2006) which, as the Occupational Safety and Health Administration stated in its letter denying your request, contains all instructions provided to inspectors which do have an effect on members of the public. This Manual may be purchased from the Government Printing Office. The Training Course, on the other hand, falls within the second category since it is a law enforcement manual within the express language of § 70.23 (a) of the regulations quoted in the first paragraph of page 2 of this letter.

The distinction between the two categories of manuals is clearly explained in the City of Concord case, supra. The court said at 333 F. Supp. pp. 959-960 (as indicated on page 1 of this letter) that the purpose of the word "administrative" in subsection (a) (2) (C) is to limit that provision to those materials "which pertain to administrative matters rather than law enforcement matters," in order to protect "the traditional confidential nature of instructions to Government personnel prosecuting violations in court"; and the court then quoted from H. Rept. No. 1497 the statement that "an agency may not be required to make available those portions of its staff manuals and instructions which set forth crieria or guidelines in auditing and inspection procedures, or *** operational tacties***"

On appeal to me under §§ 70.50-70.52 of the regulations I have accordingly determined de novo that the Training Course in question is not an administrative manual or other document under FIA subsecttion (a)(2) (C) but instead is a law enforcement manual protected from disclosure by FIA exemption (2) because it is designed for the guidance of Department personnel and comprises solely internal rules and instructions relating to investigations and enforcement activities concerned with questions of compliance with or violations of provisions of law. I have further determined that disclosure of the Training Course would not serve the public interest and would impede the discharge of the Department's compliance and enforcement functions under the Occupational Safety and Health Act.

Your appeal is therefore denied.

Sincerely,

RICHARD F. SCHUBERT,
Solicitor of Labor.

Mr. HUNGATE. This will conclude my testimony.

If I may, I would like to be dismissed. I would like to compliment Mr. Steiger; he appeared in our hearings on this act.

I thank you, Mr. Chairman, and all the members for holding these hearings.

Mr. STEIGER. May I ask a question before he is excused, the distinguished chairman of the Small Business Committee?

Perhaps I missed it, but have you had an opportunity to look at H.R. 16508, which is the consultation bill?

Mr. HUNGATE. Are you referring to the legislation you introduced and forwarded to me some while back?

Mr. STEIGER. Yes.

Mr. HUNGATE. I have but I have not given it the extensive study it deserves.

Mr. STEIGER. You have not yet undertaken to decide whether it is a good idea or not a good idea?

Mr. HUNGATE. That is correct.

Mr. STEIGER. I must say in all honesty I have one disagreement with my chairman as to whether or not 21 (c) gives the Secretary of Labor the flexibility he perhaps reads into it.

I do not see that, it is not in my judgment intended to allow a free ride. The first time citation is a fundamental part of the act.

Any effort to read into 21 (c) such a flexibility is not accurate. Mr. HUNGATE. I think probably between the Department and different witnesses of our committee perhaps different members of the committee would agree with that.

I would hope it would be made crystal clear in the act that there is discretion.

We would support that.

Mr. STEIGER. I guess my problem with the use of the word "discretion" is there is a tendency on the part of the legislative branch to grant more discretion than we should to the executive branch.

I am not sure that is a proper approach to a problem like this. The legitimate criticism by the small business people is "can you help me to comply"?

That seems to imply a specific authorization to separate compliance with consultation, not to confuse the two because of the problems that will arise should you do so.

Mr. HUNGATE. You have found an area on which we agree.
Mr. STEIGER. Thank you for coming this morning.

Mr. HUNGATE. Mr. Chairman, may I be excused?

Mr. DANIELS. Our two other members may wish to ask you questions.
Mr. Gaydos?

Mr. GAYDOS. I would like to compliment the chairman for taking time out of his busy schedule to appear and assist us.

Recalling Mr. Steiger's observation, we have a sterling example of a situation where a small businessman was cooperating with our development agencies in our county whereby he did seek consultation, did receive it, expended substantial funds, and ended up being in violation in 60 or 70 instances.

I think that is what my colleague was referring to, a good, meaningful consultation so he could rely on the conclusions and results of this meeting.

I think our other agencies do it but I don't see any provisions in the existing act.

We are in our infancy as far as enforcement but I don't see why it can't be done. I insist on consultations in my own industrial area and I think this is a glaring error, the enforcement. Confusion abounds. Mr. HUNGATE. The gentleman states something that recurred frequently in the testimony before our subcommittee. It is almost at the point now where as many businesses as there are in the country, I guess they are all covered, if you call up and want to know if you are in compliance you say, "Come on out and take a look," and you will get lots of penalties.

The odds are overwhelming in favor of our competitor's business; they won't get too many for quite some time.

You may go to the trouble to comply with all this, make certain expenditures to comply, and later it is found to be unrelated to the hazard; they changed the rule so you didn't have to do it.

That still renders a competitive advantage to your competitor who never tried to comply.

Mr. Steiger was here before when I expressed my agreement on this, I don't know whether you call it investigative or educational compliance. I think that is an important thing to do.

In line with what you state, Mr. Gaydos, my statement was perhaps something like a certificate of compliance. There should be something if the man gets along with the first fellow and makes the changes recommended by the educational officer.

He should have some protection when the next man comes along and files a complaint. The certificate should be prima facie evidence, it should show good faith.

Mr. DANIELS. I have lived with this legislation for a long time and have given considerable amount of thought and consideration to it. I think seven drafts were drawn before we sat down to mark up the bill in subcommittee.

I believe there is authority in the present law to do exactly what you recommend here today. If you will look at page 12 of the act, I believe it is section 9, the very last sentence of that section 9 (a) states that the Secretary may in lieu of issuing a citation prescribe the procedures for the issuance of a notice in lieu of a citation with respect to a de minimis violation which has no direct or immediate relationship with respect to safety or health.