DATE: NOVEMBER 24, 1997

CASE NO. 97-STA-31

IN THE MATTER OF

ASSISTANT SECRETARY OF LABOR FOR
OCCUPATIONAL SAFETY AND HEALTH,
    Prosecuting Party,

    and

DENNY PARENT,
    Complainant,

    v.

ALBERTSON'S, INC.,
    Respondent.

Jay Williamson, Esq.
Office of the Solicitor
1111 Third Avenue, Suite 945
Seattle, WA 98101-3212
    For the Prosecuting Party

Kirk S. Peterson, Esq.
1000 SW Broadway, Suite 1900
Seattle, WA 97205
    For the Respondent

Before: Henry B. Lasky
    Administrative Law Judge

   The above entitled matter arises under the Surface Transportation and Assistance Act of 1982, 49 USC §§31101 et seq., and the applicable regulations thereunder. A hearing regarding this matter was scheduled in Portland, Oregon on October 23, 1997. On the day of the hearing, after negotiations, the parties represented that a settlement had been reached. A written application for approval of the settlement was

subsequently forwarded to the undersigned for approval and received on November 17, 1997.

   Based upon the joint request for approval of the settlement and dismissal of the matter, and a review of the settlement agreement, it is abundantly clear that the settlement is in the best interest of all parties herein and that it is reasonable and fair under the precise circumstances and issues involved in this proceeding. The parties have negotiated in good faith and have agreed to resolve the outstanding and difficult issues in this matter by entering into the proposed settlement, thereby bringing the proceeding to a fair and equitable disposition. I find that the settlement agreement is fair, adequate and reasonable.

   Paragraph 4 provides that the complainant shall keep the terms of the settlement confidential and not to disclose to any other person or organization the contents of the settlement agreement including, but not limited to, the amount of compensation provided. With respect to confidentiality provisions in settlement agreements, the Freedom of Information Act, 5 USC §552 (1988) (FOIA), requires agencies to disclose requested documents unless they're exempt from disclosure. The records in this case are agency records which must be made available for public inspection and copying under the FOIA. In the event a request for inspection and copying of the record of this case is made by a member of the public, that request must be responded to as provided in the FOIA. If an exemption is applicable to the record in this case or any specific document in it, the Department of Labor will determine at the time a request is made whether to exercise its discretion to claim the exemption and withhold the document. If no exemption were applicable, the document will have to be disclosed. Since no FOIA request has been made, it will be premature to determine whether any of the exemptions in the FOIA would be applicable and whether the Department of Labor will exercise its authority to claim such an exemption and withhold the requested information. It would also be inappropriate to decide such questions in this proceeding. Timmons v. Mattingly Testing Services, ARB Case No. 97-082, 95-ERA-40 (April 13, 1997). The Department of Labor regulations provide specific procedures for responding to FOIA requests, for appeals by requesters from denials of such requests, and for protecting the interest of submitters of confidential commercial information. See 29 CFR Part 70 (1995). Pursuant to 29 CFR §70.26(b), submitters may designate specific information as confidential commercial information to be handled as provided in the regulations. When FOIA requests are received for such information, the Department of Labor shall notify the submitter promptly, 29 CFR §70.26(e); and the submitter will be given a reasonable period of time to state its objections to disclosure, 29 CFR §70.26(e); and the submitter will be notified if a decision is made to disclose the information, 29 CFR §70.26(f). If the information is withheld and suit is filed by the requested to compel disclosure, the submitter will be notified, 29 CFR §70.26(h).

   It is noted that paragraph 6 of the settlement agreement represents and essentially certifies that no other such settlement agreements were entered into between the parties. Accordingly, the agreement constitutes the entire and only settlement agreement with respect to the Complainant's claims.

   I therefore find that the agreement, incorporated herein by reference and made a part of this order, is approved and the complaint herein is dismissed.

       HENRY B. LASKY
       Administrative Law Judge

HBL:mw