Poss v. N.L.R.B.

• Citation: 565 F.2d 654
• Decision Date: 14 November 1977
• Docket Number: No. 76-1328,76-1328
• Parties: 96 L.R.R.M. (BNA) 2984, 82 Lab.Cas. P 10,200, 3 Media L. Rep. 1635 Margo POSS, Plaintiff-Appellee, v. NATIONAL LABOR RELATIONS BOARD, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 654

565 F.2d 654

96 L.R.R.M. (BNA) 2984, 82 Lab.Cas. P 10,200,

3 Media L. Rep. 1635

Margo POSS, Plaintiff-Appellee, v. NATIONAL LABOR RELATIONS BOARD, Defendant-Appellant.

No. 76-1328.

United States Court of Appeals Tenth Circuit.

Argued and Submitted May 5, 1977.

Decided Nov. 14, 1977.

Sander N. Karp, Denver, Colo. (Jeffrey A. Goldstein, Karp & Goldstein, Denver, Colo., on the brief), for plaintiff-appellee.

John G. Elligers, Atty., N. L. R. B., Washington, D. C. (William Wachter, Acting Asst. Gen. Counsel for Sp. Litigation, John S. Irving, Gen. Counsel, John E. Higgins, Jr., Deputy Gen. Counsel, Carl L. Taylor, Associate Gen. Counsel, and Elliott Moore, Deputy Associate Gen. Counsel, N. L. R. B., Washington, D. C., on the brief), for defendant-appellant.

Before SETH, McWILLIAMS and BARRETT, Circuit Judges.

McWILLIAMS, Circuit Judge.

This case involves the Freedom of Information Act and concerns an investigatory record of the N.L.R.B. On cross motions for summary judgment the trial court ordered the N.L.R.B. "to disclose (to the plaintiff) the factual information contained in the affidavits and notes of interviews found in the file in N.L.R.B. case number 27-CA-4294, Electron Corporation." The N.L.R.B. seeks reversal of the judgment and order of the trial court. We affirm.

The underlying facts are not in dispute, and both the plaintiff, Poss, and the defendant, the N.L.R.B., in their respective motions for summary judgment asserted that each was entitled to a favorable judgment as a matter of law.

Margie Poss filed an unfair labor practice charge with the N.L.R.B., alleging that her employer, Electron Corporation, had terminated her employment in retaliation for her union activities. After inquiry and investigation, the regional director for the N.L.R.B. informed Poss that there would be no issuance of a complaint against her employer. The reason for this refusal was because the investigation conducted by the N.L.R.B. indicated that Poss' employment was terminated for taking unauthorized breaks, after warning, not because of any union activity on her part. Poss then appealed the regional director's decision to the Board's general counsel in Washington, D. C. In her appeal she incorporated a request that she be given access to the factual information contained in the Board's investigatory file relating to her charge. The appeal was later denied and the regional director's decision not to issue a complaint against the employer was affirmed. Subsequently the Board, acting through its Freedom of Information Officer denied Poss' request for the factual information contained in the Board's investigative file. This denial was based on a belief that the material sought by Poss was exempt under 5 U.S.C. § 552(b)(7)(A), (C), and (D). The Board's general counsel later denied Poss' appeal from this order of the Board's Freedom of Information Office.

Pursuant to 5 U.S.C. § 552(a)(4)(B), Poss then instituted the present proceeding to compel the Board to release the requested information. In the trial court, in addition to defending on the basis of the exemptions found in 5 U.S.C. § 552(b)(7)(A), (C) and (D), the Board asserted that the material sought was also exempt under 5 U.S.C. § 552(b)(5). The trial court concluded that none of the exemptions relied on by the Board was applicable and granted Poss' motion for summary judgment. The trial court then ordered the Board to disclose the "factual information" contained in the affidavits and notes of interviews contained in the Board's investigative file. This appeal followed.

The dominant legislative intent in the Freedom of Information Act is directed towards disclosure, not secrecy, and the limited statutory exemptions are to be narrowly construed. Department of the Air Force v. Rose, 425 U.S. 352, 366, 96 S.Ct. 1592, 48 L.Ed.2d 11 (1976). And the burden is on the administrative agency to prove that the documents sought are within the statutory exemptions from disclosure. 5 U.S.C. § 552(a)(4)(B). Campbell v. United States Civil Service Commission, 539 F.2d 58, 61 (10th Cir. 1976).

As previously indicated, the Board contends that the material sought by Poss is exempt under any one of four exemptions set forth in the Act. The first exemption relied on by the Board, 5 U.S.C. § 552(b)(5), provides as follows:

(b) This section does not apply to matters that are

(5) 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.

The remaining three exemptions relied on by the Board are contained in 5 U.S.C. § 552(b)(7)(A), (C) and (D), which reads as follows:

(b) This section does not apply to matters that are

(7) Investigatory records compiled for law enforcement purposes, but only to the extent that the production of such records would (A) interfere with enforcement proceedings, . . . (C) constitute an unwarranted invasion of personal privacy, (D) disclose the identity of a confidential source . . . .

A discussion of each of these exemptions follows.

Exemption (7)(A)

Exemption (7) in the original Act exempted "investigatory files compiled for law enforcement purposes except to the extent available by law to a party other than an agency." Thus the original exemption (7) made no distinction between investigations and enforcement proceedings which were open and on-going in nature, and investigations and enforcement proceedings which had run their course and were closed. And the original exemption (7) made no reference to an investigation which culminated in an administrative agency's determination that there should not be any enforcement proceedings. The only test was whether the investigative file was compiled for law enforcement purposes, subject to the stated exception, which is not here pertinent.

In view of the language of original exemption (7), it is not particularly surprising that several courts held that the original exemption (7) applied to "closed" enforcement proceedings, as well as to enforcement proceedings which were pending and on-going in nature. So, for example, in Frankel v. Securities and Exchange Commission, 460 F.2d 813 (2d Cir. 1972), the Second Circuit held that original exemption (7) applied to investigations for law enforcement purposes which had been concluded, as well as to investigations for law enforcement purposes in which enforcement proceedings were pending or in the offing. As concerns investigations and enforcement proceedings which were open and pending, the Second Circuit stated that the purpose of exemption (7) was to prevent the premature disclosure of the results of an investigation so that the Government could present its "strongest case in court." As concerns investigations and enforcement proceedings which had been concluded and were at an end, the Second Circuit, in holding that exemption 7 still applied, stated that the purpose for such was to keep confidential the agency's investigative techniques and procedures, the revelation of which might hinder future law enforcement efforts.

In 1973 and 1974 the Circuit Court for the District of Columbia held in four cases that whenever documents were shown to be a part of an investigatory file compiled for law enforcement purposes, such were, under the terms of exemption 7, exempt from disclosure, and that, based on the wording of the statute, the matter was "at an end." See Center for National Policy Review on Race and Urban Issues v. Weinberger, 163 U.S.App.D.C. 368, 502 F.2d 370 (1974); Ditlow v. Brinegar, 161 U.S.App.D.C. 154, 494 F.2d 1073 (1974), cert. denied, 419 U.S. 974, 95 S.Ct. 238, 42 L.Ed.2d 188 (1974); Aspin v. Department of Defense, 160 U.S.App.D.C. 231, 491 F.2d 24 (1973); and Weisberg v. U. S. Department of Justice, 160 U.S.App.D.C. 71, 489 F.2d 1195 (1973), cert. denied, 416 U.S. 993, 94 S.Ct. 2405, 40 L.Ed.2d 772 (1974).

Presumably in response to the above cited decisions, Congress in 1974 rewrote the original exemption (7). By such amendment, investigatory files compiled for law enforcement purposes continued to be exempt, but if, and only if, the production of such records would "(A) interfere with enforcement proceedings . . . (C) constitute an unwarranted invasion of personal privacy, (D) disclose the identity of a confidential source." The purpose behind the 1974 amendment was to expand disclosure and to limit exemptions to "specific instances of harm to governmental or individual interests." Climax Molybdenum Co. v. N. L. R. B., 539 F.2d 63, 64 (10th Cir. 1976).

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