421 U.S. 132 (1975), 73-1233, National Labor Relations Board v. Sears, Roebuck & Co.

Docket Nº:No. 73-1233
Citation:421 U.S. 132, 95 S.Ct. 1504, 44 L.Ed.2d 29
Party Name:National Labor Relations Board v. Sears, Roebuck & Co.
Case Date:April 28, 1975
Court:United States Supreme Court

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421 U.S. 132 (1975)

95 S.Ct. 1504, 44 L.Ed.2d 29

National Labor Relations Board


Sears, Roebuck & Co.

No. 73-1233

United States Supreme Court

April 28, 1975

Argued January 14, 1975




Under the procedure for adjudicating unfair labor practice cases under the National Labor Relations Act, if a National Labor Relations Board (NLRB) Regional Director, with whom unfair labor practice charges are filed in the first instance and to whom the NLRB's General Counsel has delegated the initial power to decide whether or not to issue a complaint, believes that the charge has no merit, the charging party has a right to appeal to the General Counsel. If this right is exercised, the file is sent to the Office of Appeals in the General Counsel's Office, and the Appeals Committee then decides either to sustain or overrule the Regional Director, and sets forth the decision and supporting reasons in an Appeals Memorandum, which is cleared through the General Counsel and sent to the Regional Director, who must follow its instructions. In addition to this appeals process, the General Counsel requires the Regional Director, before reaching an initial decision in connection with unfair labor practice charges raising certain issues, to submit the matter to the General Counsel's Advice Branch, and, in other kinds of unfair labor practice cases, the Regional Directors are permitted to seek the Advice Branch's advice. The Advice Branch, after studying the matter, makes a recommendation to the General Counsel, who then makes a "final determination" which is communicated to the Regional Director by way of an Advice Memorandum. Depending upon the conclusion reached in such memorandum, the Regional Director will either file a complaint or notify the complaining party of the decision not to proceed and of his right to appeal. Respondent, after the General Counsel had declined to disclose all Advice and Appeals Memoranda pertaining to certain matters issued within a certain number of years, filed suit to require disclosure of such memoranda, alleging violations of the Freedom of Information Act, 5 U.S.C. § 552. The District Court granted respondent's motion for a summary judgment, holding that the Advice Memoranda were "instructions to staff that affect a member of the public" required

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to be disclosed under § 552(a)(2)(C), that the Appeals Memoranda were "final opinions" required to be disclosed under § 552(a)(2)(A), and that both kinds of memoranda were not exempt from disclosure as "intra-agency memorandums"under § 552(b)(5) (Exemption 5). The Court of Appeals affirmed without opinion.


1. Exemption 5 can never apply to "final opinions," which not only invariably explain agency action already taken or an agency decision already made, but also constitute "final dispositions" of matters by an agency. Pp. 150-154.

[95 S.Ct. 1508] 2. Exemption 5 covers the attorney work-product rule, which clearly applies to memoranda prepared by an attorney in contemplation of litigation and setting forth the attorney's theory of the case and his litigation strategy. Pp. 154-155.

3. Those Advice and Appeals Memoranda that explain decisions by the General Counsel not to file a complaint are "final opinions" made in the "adjudication of cases" within the meaning of § 552(a)(2)(A), and hence fall outside the scope of Exemption 5 and must be disclosed. Pp. 155-159.

(a) In the case of decisions not to file a complaint, each of such memoranda effects as "final" a "disposition" as an administrative decision can, and disclosure of these memoranda would not intrude on pre-decisional processes, nor would protecting them improve the quality of agency decisions within the purposes of the "executive privilege" embodied in Exemption 5, since when the memoranda are communicated to the Regional Director, the General Counsel has already reached his decision, and the Regional Director has no decision to make, but is bound to dismiss the charge. P. 155.

(b) Moreover, the General Counsel's decisions not to file complaints, together with the Advice and Appeals Memoranda explaining them, are precisely the kind of agency law in which the public is so vitally interested, and which Congress sought to prevent the agency from keeping secret. Pp. 155-157.

4. Those Advice and Appeals Memoranda that explain decisions by the General Counsel to file a complaint and commence litigation before the NLRB are not "final opinions" made in the "adjudication of cases" within the meaning of § 552(a)(2)(A), and do fall within the scope of Exemption 5. Pp. 159-160.

(a) The filing of a complaint does not finally dispose even of the General Counsel's responsibility with respect to the case, since the case will be litigated before and decided by the NLRB,

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and the General Counsel will be responsible for advocating the charging party's position before the NLRB. P. 159.

(b) Since the memoranda will also have been prepared in contemplation of the upcoming litigation, they fall squarely within Exemption 5's protection of an attorney's work product, and, at the same time, the public's interest in disclosure is substantially reduced by the fact that the basis for the General Counsel's decision to file a complaint will develop in the course of litigation before the NLRB, and that the "law" with respect to these cases will ultimately be made not by the General Counsel, but by the NLRB or the courts. Pp. 159-160.

5. The documents incorporated by reference in nonexempt Advice and Appeals Memoranda lose any exemption they might previously have held as "intra-agency" memoranda under Exemption 5, and if an agency chooses expressly to adopt or incorporate by reference an intra-agency memorandum previously covered by Exemption 5 in what would otherwise be a final opinion, that memorandum may be withheld only on the ground that it is covered by some exemption other than Exemption 5. P. 161.

6. Petitioners are not required to produce or create explanatory material in those instances in which an Appeals Memorandum refers to the "circumstances of the case," nor are they required to identify, after the fact, those preexisting documents that contain the "circumstances of a case" to which an opinion may have referred, and which are not identified by the party seeking disclosure. Pp. 161-162.

7. This Court will not adjudicate petitioners' claim that the Advice and Appeals Memoranda are exempt from disclosure under 5 U.S.C. § 552(b)(7) (Exemption 7) as "investigatory files compiled for law enforcement purposes." That claim was not made in the District Court and, although it was made in the Court of Appeals, that court affirmed without opinion on the basis of its prior decision in another case not involving Exemption 7, and it is therefore not clear whether that court passed on the claim. Moreover, Congress passed a limiting amendment to Exemption 7 after petitioners filed their brief, and thus any decision of the Exemption 7 issue in this case would have to be made under the exemption as amended, which could not have been done by the courts below. Pp. 162-165.

8. Nor will this Court reach petitioners' claim that the Advice and Appeals Memoranda are exempt from disclosure under § 552(b)(2) (Exemption 2) as documents "related solely to the

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internal personnel rules and practices of an agency," that claim not having been raised below. P. 165.

9. Petitioners' claim that the documents incorporated by reference in Advice and Appeals Memoranda, which were previously protected from disclosure by Exemption 7, should not lose their exempt status by reason of incorporation has merit, since a document protected by Exemption 7 does not become disclosable solely because it is referred to in a "final opinion," and, accordingly, the case must be remanded to the District Court for a determination whether such documents are protected by Exemption 7, as amended. Pp. 165-167.

156 U.S.App.D.C. 303, 480 F.2d 1195, affirmed in part, reversed in part, and remanded.

WHITE, J., delivered the opinion of the Court, in which DOUGLAS, BRENNAN, STEWART, MARSHALL, BLACKMUN, and REHNQUIST JJ., joined. BURGER, C.J., concurred in the judgment. POWELL, J., took no part in the consideration or decision of the case.

WHITE, J., lead opinion

MR. JUSTICE WHITE delivered the opinion of the Court.

The National Labor Relations Board (the Board) and its General Counsel seek to set aside an order of the United States District Court directing disclosure to respondent, Sears, Roebuck & Co. (Sears), pursuant to

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the Freedom of Information Act, 5 U.S.C. § 552 (Act), of certain memoranda, known as "Advice Memoranda" and "Appeals Memoranda," and related documents generated by the Office of the General Counsel in the course of deciding whether or not to permit the filing with the Board of unfair labor practice complaints.

The Act's background and its principal objectives are described in EPA v. Mink, 410 U.S. 73, 79-80 (1973), and will not be repeated here. It is sufficient to note for present purposes that the Act seeks "to establish a general philosophy of full agency disclosure unless information is exempted under clearly delineated statutory language." S.Rep. No. 813, 89th Cong., 1st Sess., 3 (1965) (hereinafter S.Rep. No. 813); EPA v. Mink, supra at 80. As the Act is structured, virtually every document generated by an agency is available to the public in one form or another unless it falls within one of the Act's nine exemptions. Certain documents described in 5 U.S.C. § 552(a)(1), such as "rules of procedure," must be published in the Federal Register; others, including "final opinions . . . made in the adjudication of cases," "statements of policy and interpretations which have been adopted by the agency," and "instructions to staff that affect a...

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