Kilroy v. N.L.R.B., 86-3033
| Decision Date | 15 July 1987 |
| Docket Number | No. 86-3033,86-3033 |
| Citation | 823 F.2d 553 |
| Parties | 127 L.R.R.M. (BNA) 2736 Unpublished Disposition NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit. Robert W. KILROY; American Commercial Barge Line Company, Plaintiffs-Appellees, v. NATIONAL LABOR RELATIONS BOARD; Donald Dotson, Patricia Diaz Dennis, Wilford W. Johansen, Marshal C. Babson, James M. Stevens, as members of the Board; Rosemary M. Collyer, Emil C. Farkas and Mary M. Shanklin, Defendants-Appellants. |
| Court | U.S. Court of Appeals — Sixth Circuit |
Before RYAN, BOGGS and BROWN, Circuit Judges.
This appeal involves the fifth exemption of the Freedom of Information Act, 5 U.S.C. Sec. 552(b)(5). The NLRB contends that the district court erred in requiring that certain documents, descriptively entitled 'charging party statements,' be released at plaintiffs' request. We agree with the district court that because these statements are not inter-agency documents, they are not entitled to nondisclosure.
Initially, plaintiffs sought disclosure of the charging party statements, letters of dismissal in the absence of withdrawal, and any memoranda pertaining to fifty-nine unfair labor practice cases. All of the cases in question are closed. The NLRB released the 'formal' documents in the files, but withheld the charging party statements. Plaintiffs are seeking these statements for the purpose of showing that the NLRB has treated them disparately in the processing of unfair labor charges and to propose legislation to Congress to correct this abuse.
After exhausting their administrative remedies, plaintiffs filed suit in federal district court seeking disclosure under the Freedom of Information Act. The district court held that the statements were not entitled to nondisclosure pursuant to the fifth exemption. The district court made two findings that are challenged in this appeal. First, the court found that the charging party statements are not generated by agency employees, but by private parties with no formal relationship to the agency. Therefore, the court concluded that these statements are not inter-agency or intra-agency documents within the meaning of the fifth exemption. Second, the court found that the statements are not involved in the NLRB's deliberative process and did not constitute attorney work product. Hence, they do not qualify for either of the common-law privileges encompassed by the fifth exemption claimed applicable in this case. Because we agree that charging party statements are not inter-agency or intra-agency documents, we have no occasion to discuss the second finding.
The Freedom of Information Act is broadly conceived and provides for disclosure of official information 'long-shielded unnecessarily from public view.' EPA v. Mink, 410 U.S. 73, 80 (1973). The Act creates nine categories of exempt information and the burden of proving that a certain document is within a certain exemption is upon the party seeking nondisclosure. Department of Air Force v. Rose, 425 U.S. 352, 361, 366 (1976). By express provision the fifth exemption only permits nondisclosure of
'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. Sec. 552(b)(5). Thus, once it is determined that inter-agency or intra-agency documents are involved, the fifth exemption 'withholds from a member of the public documents which a private party could not discover in litigation with the agency.' NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 148 (1975). Accord Van Bourg, Allen, Weinberg & Roger v. NLRB, 751 F.2d 982, 985 (9th Cir. 1985).
The NLRB argues...
To continue reading
Request your trial
-
Kay v. F.C.C., Civil Action No. 96-0660(RMU).
... ... See NLRB v. Robbins Tire, 437 U.S. 214, 224, 98 S.Ct. 2311, 2318, 57 L.Ed.2d 159 (1978); see also Bevis v ... 20 (citing Carson v. DOJ, 631 F.2d 1008, 1018 (D.C.Cir.1980)); see also Kilroy v. NLRB, 633 F.Supp. 136, 142-143 (S.D.Ohio 1985), aff'd, 823 F.2d 553 (6th Cir.1987). In ... ...
-
Thurner Heat Treating Corp. v. N.L.R.B.
...in" Kilroy v. NLRB. Prior to oral argument before us in this case the Sixth Circuit handed down its per curiam opinion in Kilroy v. NLRB, 823 F.2d 553 (6th Cir.1987). In its unpublished opinion, the Sixth Circuit held that the charging party statements withheld by the NLRB were not inter- o......
-
Harmon v. Regions Bank, 2006-CA-00453-SCT.
... ... Petty v. Wurst, 49 Ohio App.3d 59, 550 N.E.2d 214, 216 (1989) (quoting Kilroy v. NLRB, 633 F.Supp. 136, 143 (S.D.Ohio 1985) aff'd 823 F.2d 553, 1987 WL 38055 ... 961 So.2d 699 ... ...
-
Dayton Newspapers, Inc. v. U.S. Dept. of Navy
... ... to embarrassment, harassment, physical danger, disgrace, or loss of employment or friends." Kilroy v. National Labor Relations Bd., 633 F.Supp. 136 (S.D.Ohio 1985), aff'd, 823 F.2d 553, 1987 WL ... ...