Getman v. NLRB, 71-1097.

• Citation: 450 F.2d 670
• Decision Date: 31 August 1971
• Docket Number: No. 71-1097.,71-1097.
• Parties: Julius G. GETMAN et al. v. NATIONAL LABOR RELATIONS BOARD, Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (District of Columbia)

450 F.2d 670 (1971)

Julius G. GETMAN et al. v. NATIONAL LABOR RELATIONS BOARD, Appellant.

No. 71-1097.

United States Court of Appeals, District of Columbia Circuit.

Argued June 15, 1971.

Decided August 31, 1971.

Mr. Norton J. Come, Asst. Gen. Counsel, National Labor Relations Board, with whom Messrs. Arnold Ordman, Gen. Counsel, Dominick L. Manoli, Associate Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, Glen M. Bendixsen, Chief of Special Litigation, and Charles N. Steele, Atty., National Labor Relations Board, were on the brief, for appellant.

Messrs. Stephen B. Goldberg, Champaign, Ill., and Julius G. Getman, Bloomington, Ind., with whom Mr. Lee M. Modjeska, Washington, D. C., was on the brief, for appellees.

Mr. Marvin M. Karpatkin, New York City, for Consumers Union of United States, Inc., as amicus curiae.

Before WRIGHT, MacKINNON and ROBB, Circuit Judges.

J. SKELLY WRIGHT, Circuit Judge.

This case is before the court on appeal by the National Labor Relations Board from a judgment of the District Court ordering the Board to "provide appellees with names and addresses of employees eligible to vote in approximately 35 elections to be designated by appellees, as soon as those names and addresses are in the Board's possession." Although the immediate controversy arises in a labor law context, the central decisional issue involves the right to and limits on disclosure of Government information under the Freedom of Information Act.¹

I

The history of this action begins with a request by appellees on October 28, 1969 that the Board furnish them the names and home addresses of employees eligible to vote in certain representation elections. The Board now maintains lists of such names and addresses pursuant to its decision in Excelsior Underwear, Inc., 156 NLRB 1236 (1966),² to assure that unions have a fair chance to communicate with employees before elections and to facilitate the Board's function of resolving challenges to voter eligibility. Appellees, who are professors of labor law engaged in an NLRB voting study, seek a limited number of Excelsior lists in the Board's possession to facilitate scheduling of interviews with employees before and after certain elections. Appellees propose to question willing employees regarding their attitudes toward the election process, especially about the impact of campaign tactics utilized by both employers and unions. On the basis of general statutory authority, the Board has developed an elaborate structure of rules governing the behavior of parties during a campaign. The purpose of appellees' study is to provide an empirical basis for evaluating the wisdom and utility of these regulations.

On April 22, 1970, the Board denied appellees' request for the Excelsior lists because, in its judgment, their proposed study would be likely to upset the "laboratory conditions"³ required for conducting a fair representation election. Even if the proposed interviews would not actually prejudice elections, the Board feared that it would be obliged to conduct investigations and hold hearings concerning interview-related objections, and that this delay would be in disregard of the congressional policy embodied in the National Labor Relations Act that representation issues should be resolved as rapidly as possible.

On August 6, 1970, appellees filed the instant suit in the District Court alleging that they are entitled to the Excelsior lists under the Freedom of Information Act. The Board argued that the Freedom of Information Act does not require it to furnish the information sought by appellees because such information falls within Exemptions (4), (6) and (7) of the Act. Cross-motions for summary judgment were filed, and the District Court found on January 21, 1971 that the Board had failed to satisfy its burden of establishing that the requested information was exempted. The District Court further found that, even assuming it had power to deny disclosure on grounds other than those set out in the specific exemptions of the Act, the burden of justifying nondisclosure still rested with the Board, and this burden had not been met. Accordingly, the District Court granted appellees' motion for summary judgment, and the Board brought the appeal which is now before us for consideration.⁴

For the reasons elaborated below, we agree with the District Court that the Board's refusal to disclose the information requested by appellees is not justified under any of the specific exemptions of the Freedom of Information Act. We hold further that a District Court has no equitable jurisdiction to permit withholding of information which does not fall within one of the exemptions of the Act. Accordingly, we affirm the judgment of the District Court.

II

The primary purpose of the Freedom of Information Act is

"to increase the citizen\'s access to government records. * * *

"* * * The legislative plan creates a liberal disclosure requirement, limited only by specific exemptions which are to be narrowly construed. * * *"

Bristol-Myers Co. v. F.T.C., 138 U.S.App.D.C. 22, 25, 424 F.2d 935, 938 (1970).⁵ (Footnotes omitted.) Subsection (a)(3) of the Act provides in pertinent part that

"each agency, on request for identifiable records * * *, shall make the records promptly available to any person. On complaint, a district court of the United States * * * has jurisdiction to enjoin the agency from withholding agency records and to order the production of any agency records improperly withheld from the complainant. In such a case the court shall determine the matter de novo and the burden is on the agency to sustain its action. * * *"

Subsection (b) of the Act exempts from disclosure nine categories of information. The Board relies on the following three to preclude disclosure in this case:

"(4) trade secrets and commercial or financial information obtained from a person and privileged or confidential;

* * * * * *

"(6) personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy;

"(7) investigatory files compiled for law enforcement purposes except to the extent available by law to a party other than an agency."

Of the three exemptions relied upon by the Board, Exemptions (4) and (7) are simply inapplicable. The Board, citing the Attorney General's memorandum,⁶ maintains that Exemption (4) applies to any information given the Government in confidence. But this interpretation tortures the plain meaning of Exemption (4). We agree with the court in Consumers Union of United States, Inc. v. Veterans Administration, S.D.N.Y., 301 F.Supp. 796, 802 (1969), that "this section exempts only (1) trade secrets and (2) information which is (a) commercial or financial, (b) obtained from a person, and (c) privileged or confidential. The exemption given by the Congress does not apply to information which does not satisfy the three requirements stated in the statute."⁷ Obviously, a bare list of names and addresses of employees which employers are required by law to give the Board, without any express promise of confidentiality, and which cannot be fairly characterized as "trade secrets" or "financial" or "commercial" information is not exempted from disclosure by Subsection (b) (4).

Nor is the Board's refusal to disclose justified by Exemption (7), which covers "investigatory files compiled for law enforcement purposes except to the extent available by law to a private party." According to Senate Report No. 813 on S. 1160, 89th Cong., 1st Sess., at 9 (1965), "These are the files prepared by Government agencies to prosecute law violators.⁸. Their disclosure of such files, except to the extent they are available by law to a private party, could harm the Government's case in court." The Excelsior lists are not files prepared primarily or even secondarily to prosecute law violators, and even if they ever were to be used for law enforcement purposes, it is impossible to imagine how their disclosure could prejudice the Government's case in court. Even if this court had not held that specific exemptions from disclosure in the Act are to be narrowly construed,⁹ on a simple reading of the plain language of Subsection (b)(7) we would be constrained to hold that it provides appellant with no justification for its withholding of the Excelsior lists sought by appellees.

Although Exemption (6) differs from Exemptions (4) and (7) in that it covers information similar in some respects to the kind being sought in this case, we agree with the District Court that the Board has not met the burden of proof required to justify a refusal to disclose under this part of the Act. Exemption (6) applies to "personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy." Assuming that the Excelsior lists may be characterized as "personnel and medical files and similar files," it is still only a disclosure constituting a "clearly unwarranted invasion of personal privacy" that falls within the scope of Exemption (6). Exemption (6) requires a court reviewing the matter de novo to balance the right of privacy of affected individuals against the right of the public to be informed¹⁰; and the statutory language "clearly unwarranted" instructs the court to tilt the balance in favor of disclosure.¹¹

In carrying out the balancing of interests required by Exemption (6), our first inquiry is whether disclosure of the names and addresses of employees constitutes an invasion of privacy and, if so, how serious an invasion. We find that, although a limited number of employees will suffer an invasion of privacy in losing their anonymity and in being asked over the telephone if they would be willing to be interviewed¹² in connection with the voting study, the loss of privacy resulting from this particular disclosure should be characterized as relatively minor. Both the House and Senate...