437 U.S. 214 (1978), 77-911, National Labor Relations Board v. Robbins Tire & Rubber Co.

Docket Nº:No. 77-911
Citation:437 U.S. 214, 98 S.Ct. 2311, 57 L.Ed.2d 159
Party Name:National Labor Relations Board v. Robbins Tire & Rubber Co.
Case Date:June 15, 1978
Court:United States Supreme Court

Page 214

437 U.S. 214 (1978)

98 S.Ct. 2311, 57 L.Ed.2d 159

National Labor Relations Board

v.

Robbins Tire & Rubber Co.

No. 77-911

United States Supreme Court

June 15, 1978

Argued April 26, 1978

CERTIORARI TO THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

Syllabus

After the National Labor Relations Board (NLRB) filed an unfair labor practice complaint against respondent employer, respondent requested, pursuant to the Freedom of Information Act (FOIA), that the NLRB make available prior to the hearing copies of all potential witnesses' statements collected during the NLRB's investigation. This request was denied on the ground that the statements were exempt from disclosure under, inter alia, Exemption 7(A) of the FOIA, which provides that disclosure is not required of

investigatory records compiled for law enforcement purposes, but only to the extent that the production of such records . . . would interfere with enforcement proceedings.

Respondent then filed an action in District Court seeking disclosure of the statements and injunctive relief. That court held that Exemption 7(A) did not apply because the NLRB did not claim that release of the statements would pose any unique or unusual danger of interference with the particular enforcement proceeding, and hence directed the NLRB to provide the statements for copying prior to any hearing. The Court of Appeals affirmed, holding that the NLRB had failed to sustain its burden of demonstrating the availability of Exemption 7(A) because it had introduced no evidence that interference with the unfair labor practice proceeding in the form of witness intimidation was likely to occur in this particular case.

Held: The Court of Appeals erred in holding that the NLRB was not entitled to withhold the witness statements under Exemption 7(A). Pp. 220-243.

(a) Exemption 7(A)'s language does not support an interpretation that determination of "interference" under the Exemption can be made only on an individual, case-by-case basis, and, indeed, the language of Exemption 7 as a whole tends to suggest the contrary. Nor is such an interpretation supported by other portions of the FOIA providing for disclosure of segregable portions of records and for in camera review of documents, and placing the burden of justifying nondisclosure on the Government. Pp. 223-224.

(b) Exemption 7(A)'s legislative history indicates that Congress did not intend to prevent federal courts from determining that, with respect

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to particular kinds of enforcement proceedings, disclosure of particular kinds of investigatory records while a case is pending would generally "interfere with enforcement proceedings," and, more particularly, did not intend to overturn the NLRB's longstanding rule against prehearing disclosure of witnesses' statements. Pp. 224-236.

(c) Witness statements in pending unfair labor practice proceedings are exempt from FOIA disclosure at least until completion of the NLRB's hearing, since the release of such statements necessarily would involve the kind of harm that Congress believed would constitute an "interference" with NLRB enforcement proceedings -- that of giving a party litigant earlier and greater access to the NLRB's case than he would otherwise have. Thus, here, the NLRB met its burden of demonstrating that disclosure of the witnesses' statements in question "would interfere with enforcement proceedings," since the dangers posed by premature release of the statements would involve precisely the kind of "interference with enforcement proceedings" that Exemption 7(A) was designed to avoid, the most obvious [98 S.Ct. 2314] risk of such "interference" being that employers or, in some cases, unions will coerce or intimidate employees and others who have given statements, in an effort to make them change their testimony or not testify at all. Pp. 236-242.

563 F.2d 724, reversed.

MARSHALL, J., delivered the opinion of the Court, in which BURGER, C.J., and STEWART, WHITE, BLACKMUN, REHNQUIST, and STEVENS, JJ., joined. STEVENS, J., filed a concurring opinion, in which BURGER, C.J., and REHNQUIST, J., joined, post, p. 243. POWELL, J., filed an opinion concurring in part and dissenting in part, in which BRENNAN, J., joined, post, p. 243.

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MARSHALL, J., lead opinion

MR.JUSTICE MARSHALL delivered the opinion of the Court.

The question presented is whether the Freedom of Information Act (FOIA), 5 U.S.C. § 552 (176 ed.), requires the National Labor Relations Board to [98 S.Ct. 2312] disclose, prior to its hearing on an unfair labor practice complaint, statements of witnesses whom the Board intends to call at the hearing. Resolution of this question depends on whether production of the material prior to the hearing would "interfere with enforcement proceedings" within the meaning of Exemption 7(A) of FOIA, 5 U.S.C. § 552(b)(7)(A) (1976 ed.).

I

Following a contested representation election in a unit of respondent's employees, the Acting Regional Director of the NLRB issued an unfair labor practice complaint charging respondent with having committed numerous violations of § 8(a)(1) of the National Labor Relations Act (NLRA), 29 U.S.C. § 158(a)(1), during the pre-election period.1 A hearing on the complaint was scheduled for April 27, 1976. On March 31, 1976, respondent wrote to the Acting Regional Director and requested, pursuant to FOIA, that he make available for inspection and copying, at least seven days prior to the hearing, copies of all potential witnesses' statements collected during the Board's investigation. The Acting Regional Director denied this request on April 2, on the ground that this material was exempt from the disclosure requirements of

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FOIA by various provisions of the Act, see 5 U.S.C. §§ 552(b)(5), (7)(a), (C), (D) (1976 ed.).

Respondent appealed to the Board's General Counsel. Before expiration of the 20-day period within which FOIA requires such appeals to be decided, 5 U.S.C. § 552(a)(6),(A)(ii) (1976 ed.), respondent filed this action in the united States District Court for the Northern District of Alabama, pursuant to 5 U.S.C. § 552(a)(4)(B) (1976 ed.). The complaint sought not only disclosure of the statements, but also a preliminary injunction against proceeding with the unfair labor practice hearing pending final adjudication of the FOIA claim and a permanent injunction against holding the hearing until the documents had been disclosed. At argument in the District Court, the Board contended, inter alia, that these statements were exempt from disclosure under Exemption 7(A), because their production would "interfere" with a pending enforcement proceeding. The District Court held that, since the Board did not claim that release of the documents at issue would pose any unique or unusual danger of interference with this particular enforcement proceeding, Exemption 7(A) did not apply. App. 62, 91. It therefore directed the Board to provide the statements [98 S.Ct. 2315] for copying on or before April 22, 1976, or at least five days before any hearing where the person making the statement would be called as a witness.

On the Board's appeal, the United States Court of Appeals for the Fifth Circuit commenced its discussion by observing that, while

[t]his is a [FOIA] case, . . . it takes on the troubling coloration of a dispute about the discovery rights . . .

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in [NLRB] proceedings.

563 F.2d 724, 726 (1977).2 It concluded first that the legislative history of certain amendments to FOIA in 1974 demonstrated that Exemption 7(A) was to be available only where there was a specific evidentiary showing of the possibility of actual interference in an individual case. Id. at 728. It therefore framed the Exemption 7(A) issue as

whether prehearing disclosure of the contents of statements made by those prepared to testify in support of the Board's case would actually "interfere" with the Board's case.

Id. at 727.

In addressing this question, the Court of Appeals reflected the Board's argument that the premature revelation of its case that would flow from production of the statements prior to the hearing was the kind of "interference" that would justify nondisclosure under the 1974 amendments. Reasoning that the only statements sought were those of witnesses whose prior statements would, under the Board's own rules, be disclosed to respondent following the witnesses' hearing testimony, the court also rejected as inapplicable the argument that potential witnesses would refrain from giving statements at all if pre-hearing disclosure were available. Id. at 729-731. Finally, while the Court of Appeals agreed with the Board that there was "some risk of interference . . . in the form of witness intimidation" during the five-day period between disclosure and the hearing under the District Court's order, it held that the Board had failed to sustain its burden of demonstrating the availability of Exemption 7(A) because it had "introduced [no] evidence tending to show that this kind of intimidation"

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was, in fact, likely to occur in this particular case. Id. at 732. Rejecting the Board's other claimed bases of exemption,3 the Court of Appeals affirmed.

The Board filed a petition for a writ of certiorari, seeking review, inter alia,4 of the Exemption 7(A) ruling below, on the ground that the decision was in conflict [98 S.Ct. 2316] with the weight of Circuit authority that had followed the lead of the United States Court of Appeals for the Second Circuit in Title Guarantee Co. v. NLRB, 534 F.2d 484, cert. denied, 429 U.S. 834 (197).5 There, on similar facts, the court held that

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statements of employees and union representatives obtained in an NLRB investigation leading to an unfair labor practice charge were exempt from disclosure under Exemption 7(A) until the completion of all reasonably foreseeable administrative and judicial proceedings on...

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