BB gun maker cannot stop safety commission from releasing records

ARKANSAS–Daisy Manufacturing Co. of Benton, Ark., cannot stop the Consumer Product Safety Commission from releasing any information in its files on the Daisy Powerline Model 880 Airgun to Capitol Cities/ABC, the U.S. Court of Appeals in St. Louis, Mo. (8th Cir.), ruled in late January.

Noting that “[B]road disclosure is the dominant objective” of the FOI Act, the panel ruled that the agency’s plan to release information from complaint files on confirmed accidents with the BB guns met the requirements of a CPSC statute to be fair in making disclosures, especially since the agency planned to include a disclaimer that it had not determined the cause of the accidents independently.

The decision affirmed a February 1996 ruling by the federal District Court in Fayetteville, Ark.

ABC News requested the CPSC’s investigatory files on the BB gun after the agency closed its investigation in late 1995. The agency said in a press release that BB guns are not toys and should only be used with adult supervision, but it concluded that Daisy’s Model 880 was not defective and met the safety standards of the industry.

The CPSC refused to give ABC most of the information. It withheld data that would cause competitive harm under the FOI Act’s Exemption 4. It withheld other information provided directly by Daisy under a law that requires certain investigatory information to be withheld, which is considered to be an FOI Act Exemption 3 statute.

But the agency did not immediately object to release of other information in file and, attempting to comply with an Executive Order on business notification, the agency sought Daisy’s views on its release.

Daisy strenuously objected, saying that providing the media with any information in its file would be unfair. The CPSC law requires the agency to consider what is fair “under the circumstances” before disclosing any information, it said.

After addressing appeals from both the network and the company, CPSC agreed to disclose certain investigation reports and consumer complaints accompanied by verifiable reports of accidents.

The company brought a “reverse-FOI Act” lawsuit, seeking to prevent disclosure. ABC intervened arguing for the disclosures.

At the federal District Court, the company succeeded in delaying release of the information from February 1996 until the appeals panel made its ruling in January. The trial judge rejected ABC’s argument that delaying the disclosures might affect safety. The judge said it is CPSC’s job, not ABC’s, to protect public safety and, absent an objection to the delay by CPSC, he would allow Daisy’s request for delay. (Daisy Manufacturing Co. v. Consumer Products Safety Commission; Media Counsel: Patrick Carome, Washington, D.C.)