Kilroy v. NLRB

• Decision Date: 16 December 1985
• Docket Number: Civ. No. C-1-84-01.
• Citation: 633 F. Supp. 136
• Parties: Robert W. KILROY, et al., Plaintiffs, v. NATIONAL LABOR RELATIONS BOARD, et al., Defendants.
• Court: U.S. District Court — Southern District of Ohio

633 F. Supp. 136

Robert W. KILROY, et al., Plaintiffs, v. NATIONAL LABOR RELATIONS BOARD, et al., Defendants.

Civ. No. C-1-84-01.

United States District Court, S.D. Ohio, W.D.

December 16, 1985.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

David W. Miller, Indianapolis, Ind., Barbara Scott Bison, Cincinnati, Ohio, for plaintiffs.

Aileen Armstrong, Washington, D.C., Emil Farkas, Cincinnati, Ohio, for defendants.

ORDER

CARL B. RUBIN, Chief Judge.

This matter is before the Court for disposition on cross-motions for summary judgment. The parties have agreed that there are no factual disputes and that the matter may be decided on such motions submitted.

I. Findings of Fact

1. On November 7, 1983, Robert W. Kilroy, plaintiff and legal counsel for co-plaintiff, American Commercial Barge Line Company (Commercial Barge), requested information under the Freedom of Information Act (FOIA), 5 U.S.C. § 552 (1982), from the National Labor Relations Board (NLRB or Board) in 58 cases. He requested charging party statements or affidavits, letters of dismissal in the absence of a withdrawal, and any memoranda from the Division of Advice of the General Counsel's office. The requests stated that Kilroy intended to use the documents in connection with specific legislation proposed to Congress that would remedy asserted Board inconsistency in "hiring hall" cases.¹ On November 8, 1983, Kilroy asked the Board for all statements and affidavits of the charging party in an additional case. No reason was given for this request. (Doc. No. 1, Ex. 6)

2. The Board responded to both requests by disclosing the "formal" documents in its files, but withholding the "evidentiary material." The Board's Regional Director based his decision on the General Counsel's policy prohibiting disclosure of evidentiary material for six months following the closing of a case. The stated basis for that policy was Exemption 7(A) of the FOIA. (Doc. No. 1, Exs. 3, 7) Kilroy appealed the Director's decision to the General Counsel who affirmed the decision. The General Counsel also added Exemptions 7(C) and 7(D) as justifications for his policy. (Doc. No. 1, Exs. 5, 9) Having exhausted their administrative remedies, plaintiffs brought this suit under the FOIA for disclosure of the withheld material. 5 U.S.C. § 552(a)(4)(B) (1982).

3. The information withheld consists of 46 affidavits of employees supporting their unfair labor practice charges against their union or employer, three letters written by Board personnel in confirmation of telephone conversations they had with employees regarding their unfair labor practice charges (Vaughn Index Nos. 14, 41, 42), one affidavit of a union official supporting the union's unfair labor charge concerning employees' discharges, (Vaughn Index No. 44) and two position statements by union attorneys in support of the union's unfair labor practice charge (Vaughn Index Nos. 43, 48). The 46 employee affidavits and three telephone transcriptions bear the same characteristics and will hereinafter be referred to together as charging party statements.

4. Two years have passed since Kilroy's requests for information. Despite the Board's original reliance on its six-month policy embodied in General Counsel's memorandum 79-6, 100 L.R.R. 122 (February 12, 1979), the documents remain undisclosed. The Board has now abandoned all reliance on that policy in this proceeding and relies solely on FOIA Exceptions 5, 7(A), 7(C) and 7(D) in defense of its position.² 5 U.S.C. §§ 552(b)(5), (7)(A), (7)(C), (7)(D) (1982). This Order will accordingly be confined to a consideration of those exemptions.

II. Opinion

The basic policy of the FOIA favors disclosure. The Act should be broadly construed to further that end. Dep't. of Air Force v. Rose, 425 U.S. 352, 360-61, 96 S.Ct. 1592, 1598-99, 48 L.Ed.2d 11 (1976). There are nine exemptions, however, intended to meet specific confidentiality and privacy interests. Those exemptions are to be narrowly construed, id. at 361, 96 S.Ct. at 1599, with a burden on the federal agency to prove their applicability. 5 U.S.C. § 552(a)(4)(B) (1982). The agency's action is subject to de novo review. Id.

A. Exemption 5

Exemption 5 protects "inter-agency or intra-agency memorandums or letters which would not be available by law to a party other than an agency in litigation with the agency." 5 U.S.C. § 552(b)(5) (1982). It bestows upon agencies those privileges developed in civil litigation discovery. United States v. Weber Aircraft Corp., 465 U.S. 792, 104 S.Ct. 1488, 1493, 79 L.Ed.2d 814 (1984); EPA v. Mink, 410 U.S. 73, 86, 93 S.Ct. 827, 835, 35 L.Ed.2d 119 (1973). The Board has invoked the work product and executive privileges.

The Board's reliance on Exemption 5 must fail for two reasons. First, the documents at issue do not qualify as "inter-agency or intra-agency memorandums or letters." The United States Supreme Court has expressly declined to determine what constitutes inter-agency or intra-agency memorandums or letters. 104 S.Ct. at 1492 n. 13. Several appellate courts, however, have determined that Exemption 5 applies only to internal agency documents or documents prepared by outsiders who have a formal relationship with the agency. Van Bourg, Allen, Weinberg & Roger v. NLRB, 751 F.2d 982, 985 (9th Cir.1985); County of Madison v. Dep't of Justice, 641 F.2d 1036, 1040, 1042 (1st Cir.1981); Ryan v. Dep't of Justice, 617 F.2d 781, 790 (D.C. Cir.1980). In Van Bourg and in Poss v. NLRB, 565 F.2d 654 (10th Cir.1977), the courts held in fact situations similar to the case at bar, that the contested documents did not constitute inter-agency or intra-agency memorandums or letters. Accord, Title Guarantee Co. v. NLRB, 534 F.2d 484, 492 n. 15 (2d Cir.1976) (district court ruling); Mylan Pharmaceuticals, Inc. v. NLRB, 407 F.Supp. 1124, 1126 n. 3 (W.D. Pa.1976). The documents contested at bar fall into the same pattern. They were generated by and at the initiative of parties who did not have a formal relationship with the Board. As such, the contested documents cannot qualify as inter-agency or intra-agency memorandums or letters.

Exemption 5 protection is likewise unavailable since the documents do not qualify for any discovery privileges. The Board relies on the executive and work product privileges. The executive privilege is intended to protect the decision making process of government agencies by withholding all papers that reflect the agency's group thinking in the process of working out its policy and determining what its policy should be. NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 150, 152, 95 S.Ct. 1504, 1516, 1517, 44 L.Ed.2d 29 (1975); Tennessean Newspapers, Inc. v. FHA, 464 F.2d 657, 660 (6th Cir.1972).

The critical inquiry then is "whether production of the contested document would be `injurious to the consultative functions of government that the privilege of nondisclosure protects." EPA v. Mink, 410 U.S. 73, 87, 93 S.Ct. 827, 836, 35 L.Ed.2d 119 (1973) (citing Kaiser Aluminum & Chemical Corp. v. United States, 157 F.Supp. 939, 141 Ct.Cl. 38, 49 (1958)). Purely factual material can be withheld only if it jeopardizes state secrets, or is so intertwined with privileged material that the two cannot be severed. Id. at 87, 92, 93 S.Ct. at 836, 838; Parke Davis & Co. v. Califano, 623 F.2d 1, 5 (6th Cir. 1980).

The work product privilege applies to "the tangible and intangible material which reflects the attorney's efforts at investigating and preparing a case, including one's pattern of investigation, assembly of information, determination of the relevant facts, preparation of legal theories, planning of strategy, and recording of mental impressions." In re Grand Jury Subpoena dated November 8, 1979, 622 F.2d 933, 935 (6th Cir.1985) (citing Hickman v. Taylor, 329 U.S. 495, 67 S.Ct. 385, 91 L.Ed. 451 (1947)).

The Board's claims for the protection of both privileges are effectively foreclosed by NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 95 S.Ct. 1504, 44 L.Ed.2d 29 (1975). The contested documents in that case were "Appeals Memoranda" and "Advice Memoranda." An appeals memorandum is a document generated by the Appeals Committee of the Board instructing a Regional Director whether to issue a complaint in a specific case. It states the decision of the General Counsel and his reasons for that decision. Id. at 140, 95 S.Ct. at 1511. Advice Memoranda contain basically the same content as Appeals Memoranda but are initiated and developed in a slightly different fashion. Id. at 141-42, 95 S.Ct. at 1511-12.

The Court in Sears, Roebuck & Co. ruled that Appeals and Advice Memoranda that instructed the Regional Director not to file a complaint are not exempt under Exemption 5 while those that result in a complaint are. Id. at 155, 95 S.Ct. at 1518. The Court concluded that disclosing the documents after a final decision of the General Counsel not to file a complaint "would not intrude on predecisional processes, and protecting them would not improve the quality of agency decisions." Id. Memoranda that result in complaints, however, initiate a litigation process that necessitates further decision making, and since they would have been prepared in contemplation of upcoming litigation, they would qualify as work product. Id. at 159-60, 95 S.Ct. at 1520-21.

The reasoning of Sears, Roebuck & Co. bars the application of Exemption 5 to the documents herein. Like the Advice and Appeals Memoranda generated in cases where a complaint does not issue, the documents herein are the product of closed cases. No further decision making or litigation will be engaged in by the Board. The reasons for Exemption 5 protection no longer exist. Further, the documents herein reveal much less of the deliberative processes of the Board and are much further from standard notions of work product than the memoranda in Sears, Roebuck & Co. The Appeals and Advice Memoranda include the Board's understanding of the facts, its...