decided: April 2, 1976; As Amended May 11, 1976.
Appeal from judgment of the United States District Court for the Southern District of New York, Lee P. Gagliardi, Judge, holding that investigative materials obtained by NLRB in preparation for proceedings on an unfair labor practice charge are not exempt from disclosure under the Freedom of Information Act, 5 U.S.C. §§ 552(b)(5), (7)(A), 7(B), 7(C). Judgment reversed.
Moore, Oakes and Meskill, Circuit Judges.
The National Labor Relations Board appeals from an order requiring disclosure under the Freedom of Information Act (FOIA)*fn1 of investigative statements obtained by the Board from employees (and their union representatives) prior to an unfair labor practice hearing on a charge against their employer for refusal to bargain.*fn2 The United States District Court for the Southern District of New York, Lee P. Gagliardi, Judge, held that such statements were not exempt from the disclosure requirements of the FOIA. He expressly rejected the Board's contention that these statements fell within Exemptions 5, 7(A), 7(C) or 7(D) of the Act, 5 U.S.C. § 552(b)(5), 7(A), 7(C), 7(D).*fn3 Following the district court's decision on the merits of the FOIA claim, the court directed the Board to produce the statements forthwith or stay the conduct of its administrative hearing. On the Board's appeal, we reverse.*fn4
On or about May 28, 1975, District 65 Wholesale, Retail, Office and Processing Union, Distributive Workers of America (hereinafter District 65), filed an unfair labor practice charge with Region 2 of the Board alleging that the Title Guarantee Co. had violated §§ 8(a)(3) and (1) of the National Labor Relations Act, 29 U.S.C. §§ 158(a)(3) and (1), by refusing to execute a collective bargaining agreement which had been previously agreed upon with District 65. Subsequent amendments to the charge alleged violation of § 8(a)(5) of the Act, 29 U.S.C. § 158(a)(5). The Board conducted an investigation in the course of which it took written statements and affidavits from representatives of District 65 and employees of the Title Guarantee Co. As a result of these investigations, the Board issued a complaint against Title Guarantee on or about June 30, 1975. The Company requested copies of all written statements, signed or unsigned, but the NLRB Regional Director denied them, asserting privilege from disclosure under the exemptions to the FOIA. This ruling was appealed to the Board's General Counsel pursuant to Agency Regulations, 29 C.F.R. § 102.117(c)(2)(ii) (1975), which was denied. Title Guarantee then filed this suit under the FOIA, claiming that the Board's failure and refusal to furnish the requested information is arbitrary and capricious and deprives it of public information, and that absent such information it will be wrongfully precluded from properly preparing its defense and will therefore suffer irreparable injury. Title Guarantee concededly has standing to bring this suit both as a member of the "public," 5 U.S.C. § 552(a), and as a "person" within the language of the statute, 5 U.S.C. § 552(a)(3), and the language of the Administrative Procedure Act, 5 U.S.C. § 551(2). The Board moved for dismissal under Fed. R. Civ. P. 12(b)(6) or alternatively for summary judgment under Fed. R. Civ. P. 56(c), and Title Guarantee cross-moved for summary judgment.
Following in camera review of the material in question, 5 U.S.C. § 552(a)(4)(B), the district court concluded that release of the information "would not block further information of the same type from similar sources nor would it stifle effective preparation of the case." The court additionally found that "it does not appear that the specific enforcement proceeding would be harmed," see Exemption 7(a), 5 U.S.C. § 552(b)(7)(A), going on to say that whatever value Title Guarantee might gain from the information would not be based "on the timing of such release but rather on its determination of whether any material contained in the released documents supports its contention." Additionally the court found that the material in question contained "no personal matters which should be protected under Exemption 7(C)" and that the Board had "not presented any evidence that the material which is sought was elicited after an express assurance of confidentiality [such as might bring it within Exemption 7(D) to FOIA]." In this connection the court reviewed the material and concluded that it was not "reasonable to infer that the statements were made under some understanding on the part of the deponent that his statements would be confidential." As the court said, "The nature of the material as well as the identity of the deponents indicates that an understanding of confidentiality or lack of it would be entirely irrelevant to whether the information would have been offered to the Board." The court concluded that the Board had failed to sustain its statutory burden of proof, 5 U.S.C. § 552(a)(4)(B), that there was an exemption from disclosure under FOIA for the investigative materials. The court directed the Board to turn over the materials sought for inspection and copying, failing which the Board would be enjoined from conducting any hearings on the unfair labor practice charge until such time as the Board were in compliance with the court order. The court did not consider that its injunction was barred in any way by Renegotiation Board v. Bannercraft Clothing Co., 415 U.S. 1, 20, 39 L. Ed. 2d 123, 94 S. Ct. 1028 (1974).*fn5 The Board appeals.
Since the substantive effect of acceptance of appellee's disclosure contentions would be tantamount to the issuance of new, broader discovery rules for NLRB proceedings, it is desirable to consider, as preliminary matter, the Board's authority to promulgate rules for the conduct of proceedings before it, 29 U.S.C. § 156, as well as its responsibility to conduct such proceedings "in accordance with the rules of evidence applicable in the district courts of the United States under the rules of civil procedure for the district courts of the United States . . . ." 29 U.S.C. § 160(b). This court has held, in NLRB v. Interboro Contractors, Inc., 432 F.2d 854 (2d Cir. 1970), cert. denied, 402 U.S. 915, 28 L. Ed. 2d 661, 91 S. Ct. 1375 (1971), that the Labor-Management Relations Act does not specifically authorize or require the Board to adopt discovery procedures.*fn6 See also NLRB v. Globe Wireless, Ltd., 193 F.2d 748, 751 (9th Cir. 1951). The matter of discovery in enforcement proceedings is a matter committed to the Board's rule-making power. See NLRB v. Interboro Contractors, Inc., supra, 432 F.2d at 858; Electromec Design and Development Co. v. NLRB, 409 F.2d 631, 635 (9th Cir. 1969). Since 1935 the Board rule pertaining to an enforcement proceeding, now contained in 29 C.F.R. § 102.30 (1975), has not provided for the taking of depositions for the purposes of discovery as in the case of the Federal Rules of Civil Procedure. Instead, it has permitted limited discovery only for the purpose of obtaining and preserving evidence for trial. NLRB v. Interboro Contractors, Inc., supra, 432 F.2d at 858. The policy has been said to be a "logical one," id., followed by other administrative agencies and in no way affected by the Administrative Procedure Act. Id. at 858-59. Under the Board rules, however, affidavits become available to a litigant "after a witness called by the general counsel or by the charging party has testified in a hearing upon a complaint . . . ." 29 C.F.R. § 102.118(b)(1) (1975). The rules provide that the administrative law judge shall "order the production of any statement . . . of such witness in the possession of the general counsel which relates to the subject matter as to which the witness has testified [for] examination and use for the purpose of cross-examination." Id. In other words, the only discovery available to the party charged with an unfair labor practice under the National Labor Relations Act, absent the requirements of the Freedom of Information Act, is equivalent to that available to a criminal defendant under the Jencks Act, 18 U.S.C. § 3500. Neither the liberal provisions of the Federal Rules of Civil Procedure pertaining to pretrial discovery nor the liberalized rules of the Federal Rules of Criminal Procedure have any bearing on Board discovery procedures. The Board rules prohibit anyone, including any employee of the Board, regional director or administrative law judge, from producing any "files, documents, reports, memoranda, or records of the Board or of the general counsel, whether in response to a subpoena duces tecum or otherwise" except as might be required under the Freedom of Information Act or upon the written consent of the Board or the chairman of the Board. 29 C.F.R. § 102.118(a) (1975). Accordingly, if pre-hearing discovery is to be obtained as a matter of right by a party charged under 29 U.S.C. § 160 with an unfair labor practice, the source for the right must be found within the Freedom of Information Act.*fn7
Before analyzing the specific exemptions claimed under and by virtue of the Act as it now reads, it is well to recall that the thrust of the FOIA since its initial enactment has been to provide for disclosure of governmental files unless an exemption is established. See Center for National Policy Review on Race and Urban Issues v. Weinberger, 163 U.S. App. D.C. 368, 502 F.2d 370, 374 (1974). At the same time the courts have gone far prior to the 1974 amendments to protect the executive branch against disclosure. Executive security classification decisions have been held nonreviewable. Environmental Protection Agency v. Mink, 410 U.S. 73, 84, 35 L. Ed. 2d 119, 93 S. Ct. 827 (1973). A number of decisions held that agencies were not even required to submit material to the court for in camera inspection to determine whether a claim to a given exemption was factually correct. Frankel v. SEC, 460 F.2d 813 (2d Cir.), cert. denied, 409 U.S. 889, 34 L. Ed. 2d 146, 93 S. Ct. 125 (1972); Center for National Policy Review on Race and Urban Issues v. Weinberger, supra; Ditlow v. Brinegar, 161 U.S. App. D.C. 154, 494 F.2d 1073 (per curiam), cert. denied, 419 U.S. 974, 42 L. Ed. 2d 188, 95 S. Ct. 238 (1974); Aspin v. Department of Defense, 160 U.S. App. D.C. 231, 491 F.2d 24 (1973); Weisberg v. Department of Justice, 160 U.S. App. D.C. 71, 489 F.2d 1195 (1973) (en banc), cert. denied, 416 U.S. 993, 40 L. Ed. 2d 772, 94 S. Ct. 2405 (1974).*fn8 The courts had, in at least some cases, construed the statutory exemptions from disclosure to their literal limits, reflecting no doubt the agencies' historical bias against such disclosure. The Report of the Senate Committee on the Judiciary accompanying S. 2543, which covered the basic amendments made in 1974, other than the amendments to Exemption 7 which we will discuss below, made it very clear that it was not the congressional intention that the FOIA exemptions be read broadly "either to prohibit disclosure of information or to justify automatic withholding of information." S. Rep. No. 93-854, 93d Cong., 2d Sess. (1974); Freedom of Information Act and Amendments of 1974 (P. L. 93-502) Sourcebook: Legislative History, Texts and Other Documents 151, 158 (1975) (hereinafter "Sourcebook").*fn9 Rather, the exemptions "are only permissive " and "mark the outer limits of information that may be withheld where the agency makes a specific affirmative determination that the public interest and the specific circumstances presented dictate . . . that the information should be withheld." Id. We turn to the Board's claim of exemption.
Exemption 7 originally covered "investigatory files compiled for law enforcement purposes except to the extent available by law to a party other than an agency." Under the amended Exemption 7, adopted in 1974, "investigatory reports compiled for law enforcement purposes" are exempt from the FOIA to the extent that disclosure would "interfere with enforcement proceedings," "constitute an unwarranted invasion of personal privacy," "disclose the identity of a confidential source." 5 U.S.C. § 552(b)(7)(A), (C), (D); note 3 supra. The Board claims that each of these rationales supports an exemption from disclosure for employee statements obtained in investigation of a pending unfair labor practice charge. Since we agree with the Board that such disclosure would "interfere with enforcement proceedings" and is therefore not required under the statute, we need not decide whether disclosure in this context invades the personal privacy,*fn10 or destroys the confidentiality,*fn11 of the Board's sources.
The Board argues that Exemption 7(A) continues the prior law with respect to the disclosure of investigatory records in "open" cases, in other words, that any disclosure of information as to a pending enforcement proceeding would constitute interference with that proceeding. In Wellman Industries, Inc. v. NLRB, 490 F.2d 427, 430-31 (4th Cir.), cert. denied, 419 U.S. 834, 95 S. Ct. 61, 42 L. Ed. 2d 61 (1974), the Fourth Circuit relied on both H.R. Rep. No. 1497, 89th Cong., 2d Sess. 11 (1966), and S. Rep. No. 813, 89th Cong., 1st Sess. 9 (1965), to support the conclusion that, prior to the 1974 amendments, the statute did not permit disclosure of statements compiled as ongoing investigative material in connection with pending unfair labor practice proceedings. See also Wellford v. Hardin, 444 F.2d 21, 23 (4th Cir. 1971) (purpose of exemption "to prevent premature discovery by a defendant in an enforcement proceeding"). Cf. Williams v. IRS, 345 F. Supp. 591, 594 (D. Del. 1972), aff'd per curiam, 479 F.2d 317 (3d Cir.), cert. denied, 414 U.S. 1024, 94 S. Ct. 448, 38 L. Ed. 2d 315 (1973). This reading -- that Exemption 7(A) requires nondisclosure in any pending enforcement proceeding -- finds additional support in some of Senator Hart's language in connection with the introduction of his amendment before Congress in 1974. Senator Hart stated that the original purpose of Congress in enacting the seventh exemption to FOIA in 1966 had been "to prevent harm to the Government's case in court by not allowing an opposing litigant earlier or greater access to investigative files than he would otherwise have." Sourcebook at 332. Senator Hart pointed out that
recently, the courts have interpreted the seventh exception to the Freedom of Information Act to be applied whenever an agency can show that the document sought is an investigatory file compiled for law enforcement purposes -- a stone wall at that point. The court would have the exemption applied without the need of the agency to show why the disclosure of the particular document should not be made.
Id. That, he went on to suggest, was "not consistent with the intent of Congress when it passed this basic act in 1966." Id. at 333. Senator Hart's amendment was suggested by the Administrative Law Section of the American Bar Association following upon the report of the Committee on Federal Legislation of the Association of the Bar of the City of New York, which had criticized specifically the Second Circuit decision in Frankel v. SEC, supra. The Association of the Bar's Committee Report pointed out that Frankel held that investigatory files are exempt from disclosure forever, but that "other jurists" had "reached the conclusion that Exemption 7 was intended only to protect against premature disclosure in a pending investigation, and that once the investigation is completed and all reasonably foreseeable administrative and judicial proceedings concluded, the files must be disclosed."*fn12 Sourcebook at 334. It was with this particular problem of unavailability of closed files in mind that the 1974 amendments to Exemption 7 were adopted.
But appellee argues not without force, and the district court held, that it is not enough to defeat disclosure merely to assert that an enforcement proceeding is pending and that the material has been gathered in connection with that proceeding; rather the exemption must be read complementarily to the in camera inspection amendment, 5 U.S.C. § 552(a)(4)(B), and the Board must show to the satisfaction of the court that there would be interference with the particular proceeding for which the investigative materials were gathered, a showing which the district court found was not made here. The Board asserts contrarily that there would necessarily be interference both with the pending charge and with the Board's ability to investigate other charges in three ways: first, suspected violators might be able to use disclosure to learn the Board's case in advance and frustrate the proceedings or construct defenses which would permit violations to go unremedied; second, employees who are interviewed may be reluctant, for fear of incurring employer displeasure, to have it known that they have given information, see Surprenant Manufacturing Co. v. NLRB, 341 F.2d 756, 763 (6th Cir.1965), or union officials might not want to volunteer information for fear of compromising the union's position in negotiations and, third, because these affidavits constitute attorney "work product," revealing investigative and prosecutorial strategy.
We feel it unnecessary to make the broad determination that any investigative information obtained in connection with a pending enforcement proceeding is per se nondisclosable. But we do think that if statements obtained by the NLRB from employees, or their representatives, in connection with unfair labor practice proceedings against an employer were required to be disclosed, interference with the proceedings could well result in the first two ways suggested by the Board. Absent a clearer indication of contrary congressional intent, we are not prepared to hold that disclosure may be required under the FOIA in connection with an ongoing unfair labor practice enforcement proceeding. There is a very large body of law, alluded to only the other day in our NLRB v. Martin A. Gleason, Inc., 534 F.2d 466, 479 (2d Cir. 1976), and exemplified in our Henry L. Siegel Co. v. NLRB, 328 F.2d 25, 27 (2d Cir. 1964), that an employer request to an employee for his ...