The opinion of the court was delivered by: TENNEY
The plaintiff, Associated Dry Goods Corporation, brings this action under the Freedom of Information Act ("the FOIA"), 5 U.S.C. § 552, seeking to compel defendant National Labor Relations Board ("NLRB") to make available for copying virtually the entire contents of a certain closed unfair-labor-practice-case file. The NLRB had refused to honor a good portion of the plaintiff's direct request, contending that the portions of the file not produced were exempt from disclosure under various provisions of 5 U.S.C. § 552(b). There being no material facts in issue, both parties have moved for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. The Court has reviewed the entire contents of the two folders which make up the case file. For the reasons stated below, the Court finds that certain portions of the file come within the FOIA's stated exemptions, while others do not so qualify and thus must be disclosed. Accordingly, both motions for summary judgment are granted in part and denied in part.
The Faulk/Pemberton Unfair Labor Practice Case
On December 20, 1972, Reeda Faulk and Shirley Pemberton filed identical unfair labor practice charges with the 25th Regional Office of the NLRB, located in Indianapolis, Indiana. Faulk and Pemberton contended that their employer, Local Union # 135 of the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America ("the Union"), had terminated their employment on November 17, 1972, in violation of their rights as employees protected under Section 8(a) of the National Labor Relations Act, 29 U.S.C. § 158(a), including their right to engage in concerted activity. An NLRB Field Examiner was assigned to investigate these charges. On January 8, 1973, the charging parties designated an attorney to serve as their representative, and, on the same day, that attorney, at the Board's request, filed with the Board and served on the Union a list of witnesses who could substantiate the allegations made by Faulk and Pemberton. As the Board had also requested, that list of witnesses included "a summary of what you expect each (witness) will testify (to)."
In late January and early February 1973 the NLRB agent collected the affidavits and statements of nine employees of the Union, including seven of the nine included on the list prepared by the charging parties' attorney. He also received the statements of six individuals who could be described as the management of the Union. Finally, incorporated into the investigative file were numerous statements and affidavits of the two charging parties themselves and a great deal of documentary evidence concerning employees of the Union, their wages, benefits and work histories. At the end of February, the Field Examiner submitted a lengthy "Final Investigation Report" summarizing the case from his perspective, commenting on the evidence, and recommending a course of action to the Regional Director. On February 28, 1973, the Regional Director issued a complaint alleging that the Union had violated Sections 8(a) (1) and (3) of the NLRA, 29 U.S.C. §§ 158(a)(1), (3). The Union denied the allegations.
At this point the clarity of the narrative must fade somewhat, obscured by the intricacies of NLRB internal procedure, the inherent opacity of which is further dimmed in this case by the Board's apparent failure to follow its own internal rules. Nevertheless, the narrative is vital, for, as the Supreme Court has noted, "an understanding of the function of the (requested) documents in issue in the context of the administrative process which generated them" is "crucial to the decision" of an FOIA case. NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 138, 95 S. Ct. 1504, 1510, 44 L. Ed. 2d 29, 40 (1975).
At some point early in May 1973, an "informal settlement agreement" was worked out between at least some of the parties involved in the by-now-pending unfair labor practice case. That agreement was signed on May 15, 1973, by a representative of the Union and by charging party Pemberton. Charging party Faulk, however, did not sign, and on May 16, 1973, was sent a letter by the Regional Director informing her that "the Proposed Settlement Agreement comprises substantially the same remedy as might be determined in the hearing" (I. e., a hearing upon the complaint, which was still in force, not having been withdrawn) and stating that "it is proposed to approve (the Settlement Agreement) unless you give good reason to the contrary." Complaint, Exh. H-1 (emphasis added). Faulk was given five days in which to respond; hence, the type of letter sent is known as a "five-day letter." This procedure complied fully with Board procedure. Section 10152.1(a) of the NLRB Casehandling Manual (Part One) Unfair Labor Practice Proceedings (April 1975) ("NLRB Manual "), which governs the "Effectuation, Performance, and Closing of (a) "Unilateral' Settlement Case," I. e., the "settlement" of a case "without the participation of the charging party," Id. § 10134.2(b), requires the Regional Director to send a "five-day letter" to the charging party. However, the Regional Director is without authority to Approve a postcomplaint unilateral settlement agreement without clearance from "Washington" (I. e., the General Counsel). Id. §§ 10124.4, 10148.1, 11751.2(d). Thus, steps were taken within the NLRB structure to secure "Washington" approval. Faulk filed the requested letter stating her objections to the settlement agreement.
At the same time, however, another process began. On May 30, 1973, the Regional Director sent Faulk a letter stating that he was "refusing to issue complaint in this matter" and informing Faulk of her right to appeal this "action" to the General Counsel of the NLRB. Complaint Exh. I. This correspondence was in error. The complaint issued in February was still in effect in the case, no order withdrawing it having been entered. Thus, it was not possible for the Regional Director to "issue" or even to "reissue" a complaint. Furthermore, the withdrawal of the complaint would not be accomplished until the settlement agreement was approved, and that step could not be taken until the Regional Director had secured clearance from Washington. Simply stated, the Regional Director jumped the gun on the issuance of the "13-day letter" sent on May 30. It appears from the file, however, that this momentary lapse was overlooked in this case, and the two processes approval of the Proposed settlement agreement and appeal from the "approval" of that agreement were amalgamated into a single review by the General Counsel of the settlement agreement and Faulk's objections to it.
That review resulted in a letter to Faulk from the General Counsel dated July 10, 1973, in which the "appeal" was denied. The two-page letter discussed Faulk's contentions in some detail and gave reasons why each of them would not suffice to upset the settlement agreement. Complaint Exh. L. It is apparent that the Regional Director took this "denial of the appeal" to also constitute clearance by "Washington" of the settlement agreement, for the Regional Director "approved" the agreement on July 13. On August 3, 1973, a letter was sent to all parties stating that the agreement had been approved. There follows in the file correspondence, mostly between the Union and the Board, concerning compliance with the settlement agreement, including the posting of notices and the payment of backpay. On March 13, 1974, the case was officially closed and the parties were so informed. Complaint Exh. M.
The Associated Dry Goods FOIA Request
On July 27, 1976, almost two-and-a-half years after the closing of the case, attorneys representing the plaintiff wrote to the Regional Director requesting
the complete file in the closed case . . . including, but not limited to the following:
1. The charge as filed and any amendments thereto.
2. The Complaint as issued and any amendments thereto.
3. All statements taken by the Board from anyone having knowledge of the facts.
4. Copies of all documentary evidence other than statements obtained during the course of the Board's investigation.
5. The answer filed by the Respondent and any amendments filed thereto.
6. The field investigative report or reports made by the Board Agent charged with the responsibility for investigating this case.
7. All correspondence between the Region and the parties regarding this case.
8. The settlement agreement and notice, if any, signed by the parties.
9. All other documents in the file used by the Board in connection with the investigation and disposition of this matter.
Complaint Exh. N. The Assistant Regional Director wrote back on August 4, agreeing to furnish 22 separate documents from the file, but denying the request with respect to all other documents on the ground that they were "privileged from disclosure pursuant to Section 552(b)(5) and 552(b)(7)(A), (C), and (D) of the FOIA." Complaint Exh. O. The plaintiff obtained the documents to which it had been granted access and simultaneously filed an appeal from the denial of complete access. Id. Exhs. P-R. The appeal was denied by the Board's General Counsel by letter dated August 31, 1976, which relied on the confidentiality inherent in the Board's relationship to witnesses and on Exemption 5 with respect to internal memoranda of the Board. Id. Exh. S.
The instant action was filed in September. Both parties moved for summary judgment and argument was heard on January 20, 1977. Because it was apparent that applicability of the various exemptions claimed under the FOIA could be determined only after a careful examination of the documents in question, the Court directed the Board to produce the entire case file in camera. 5 U.S.C. § 552(a)(4)(B). Thereafter, the parties continued to provide the Court with recently decided cases and letters arguing therefrom, the latest and most important of which was the Supreme Court's decision in NLRB v. Robbins Tire & Rubber Co., 437 U.S. 214, 98 S. Ct. 2311, 57 L. Ed. 2d 159 (1978).
Documents in the Case File
The case file contains a great many documents. In some measure, the categorization of these documents will be helpful to a determination of the applicability of the various exemptions. To a certain degree, however, those determinations must be made with respect to various parts of individual documents, with redaction of the exempt portions of these documents following where necessary. Since the documents are not given any logical sequence in the file, either chronological or categorical, the Court's summary of the contents, based on the Court's own examination of the file, may not be absolutely correct in every particular. This examination reveals the following categories, with a brief description of the contents of each:
1. Documents prepared by Board staff. This category may be broken down further:
a. Formal and routine communications to the parties. This category includes documents such as "Orders Rescheduling Hearing."
b. Handwritten notes. Two sets of such notes appear to be present; it also appears that they were the work of an ...