Moore-Mccormack Lines, Inc. v. I.T.O. Corporation of Baltimore, Secretary of Labor, Amicus Curiae , 508 F.2d 945 ( 1974 )

FIELD, Circuit Judge

(concurring and dissenting):

While I agree with the views expressed in parts III and IV of Judge Butzner’s opinion, I think the district judge was correct in ruling that the portion of the compliance officer’s report entitled “Conclusions” fell within the in-tra-agency exemption of the Freedom of Information Act.¹

To some degree my disagreement with the majority stems from my reading of the report. The purpose of the investigation by the compliance officer was to determine whether Wodzenski’s injury had resulted from the violation of any of the regulations which had been promulgated by the Department of Labor to protect the health and safety of longshoremen. The officer’s report was prepared for the use of the Department and contained the six factual observations upon which it reached the conclusion that the operation had been carried out in a safe and reasonable manner. Upon request the Department disclosed all of the officer’s factual findings and in addition thereto the shipowner received the full investigatory report. This latter report included the following:

“WHAT REMAINS TO BE DONE?— INVESTIGATOR’S COMMENT.

The operation was and is done in a safe, reasonable manner; but a possible sudden load surge must be guarded against. Retrain winch operator.” (Emphasis added).

It would reasonably appear that the compliance officer, having failed to find any regulatory violation, was pointing out to his superiors a possible explanation for the accident with a recommendation that winch operators be retrained to guard against such a contingency in the future.² To me this would not reflect the conclusion of the compliance officer that such a load surge did, in fact, cause the wire to part; rather, it was his individual opinion with respect to a possible hazard which he relayed to his superiors in the course of the administrative process.

I am also concerned that implicit in the majority decision is the suggestion that the Freedom of Information Act not only entitles one in the position of the shipowner to opinions appearing in the investigatory file, but requires the official investigator to appear as an expert witness in a private civil action. Such a requirement would effect an unwarranted and disruptive intrusion upon the official duties and responsibilities of these investigators and involve them in private controversies unrelated to official business.³ Additionally, while it is not too significant in the present case which was tried to the court, it would be most unfair to the opposing party to have such an investigator, bearing the apparent imprimatur of the Department of Labor, testify before a jury with respect to his administrative opinions.

1 . 5 U.S.C. § 552(b)(5).

2 . The use of the phrase “in lieu of the above” by the compliance officer is consistent with this interpretation, and I find no reason to assume that the officer intended to say “in view of the above” as suggested by the majority.

3 . Pilar v. SS Hess Petrol, 55 F.R.D. 159 (D.C.Md.1972); see 29 C.F.R. 1906.5(a) and 1906.6.