Thurner Heat Treating Corp. v. N.L.R.B.

• Decision Date: 16 February 1988
• Docket Number: No. 87-1814,87-1814
• Citation: 839 F.2d 1256
• Parties: 127 L.R.R.M. (BNA) 2766, 108 Lab.Cas. P 10,338 THURNER HEAT TREATING CORP., Plaintiff-Appellee, v. NATIONAL LABOR RELATIONS BOARD, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1256

839 F.2d 1256

127 L.R.R.M. (BNA) 2766, 108 Lab.Cas. P 10,338

THURNER HEAT TREATING CORP., Plaintiff-Appellee, v. NATIONAL LABOR RELATIONS BOARD, Defendant-Appellant.

No. 87-1814.

United States Court of Appeals Seventh Circuit.

Argued Nov. 30, 1987.

Decided Feb. 16, 1988.

Corinna L. Metcalf, N.L.R.B., Washington, D.C., for defendant-appellant.

John C. Patzke, Brigden & Petajan, S.C., Milwaukee, Wis., for plaintiff-appellee.

Before CUMMINGS, WOOD and MANION, Circuit Judges.

CUMMINGS, Circuit Judge.

Plaintiff Thurner Heat Treating Corporation is a Wisconsin corporation with its place of business in Milwaukee. In September 1981, a charge against Thurner was filed with the National Labor Relations Board ("NLRB" or "Board") and the Board subsequently issued a complaint. To aid its preparation of a defense, Thurner relied on the Freedom of Information Act, 5 U.S.C. Sec. 552 ("FOIA" or "Act"), and requested that the Board disclose all records or other documents in the Board's case files that involved Thurner. The Board partially denied Thurner's request and Thurner filed this civil action to gain access to the undisclosed documents. In September 1982 the complaint that generated the case file and precipitated the FOIA request was withdrawn and the charge was dismissed. Although this FOIA litigation continues, no underlying labor matter involving Thurner has been pending before the Board since then.

Regarding its partial denial of Thurner's FOIA request, the Board claimed that the disputed documents were wholly or in part exempt from the disclosure requirements of FOIA under three of its provisions, Exemption (b)(5), 5 U.S.C. Sec. 552(b)(5), and Exemptions (b)(7)(C) and (D), 5 U.S.C. Sec. 552(b)(7)(C) and (D). The district court rejected the Board's argument that affidavits of witnesses who are not government employees but who are instead current or former employees of the plaintiff are "intra-agency memorandums" exempt from disclosure under Exemption (b)(5). The court, however, found the Board's Exemption (b)(7)(C) and (D) arguments persuasive and ordered the Board to submit all of the affidavits, along with suggestions as to how the affidavits could be redacted, to the court for in camera inspection.

To secure an immediate appeal of this interlocutory order, the Board agreed that if it did not succeed before this Court on its Exemption (b)(5) argument, on remand it would waive its reliance on Exemptions (b)(7)(C) and (D). The Board has gambled and lost. We affirm the district court's rejection of the Board's Exemption (b)(5) argument and, since its possibly more meritorious arguments were waived, the affidavits, in unredacted form, must be released to Thurner.

I

FOIA is structured so that virtually every document held by a federal agency ¹ is available to the public in one form or another unless it falls within one of the Act's nine exemptions. NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 136, 95 S.Ct. 1504, 1509, 44 L.Ed.2d 29 (1975). Consistent with the statutory philosophy of broad disclosure, courts are to take care to construe the exemptions "as narrowly as consistent with efficient Government operation." S.Rep. No. 813, 89th Cong., 2d Sess. 9 (1965); see also United States v. Weber Aircraft Corp., 465 U.S. 792, 802, 104 S.Ct. 1488, 1494, 79 L.Ed.2d 814 (1984); FTC v. Grolier, Inc., 462 U.S. 19, 23, 103 S.Ct. 2209, 2212, 76 L.Ed.2d 387 (1983); Dep't of the Air Force v. Rose, 425 U.S. 352, 360-361, 96 S.Ct. 1592, 1599, 48 L.Ed.2d 11 (1976).

The specific exemption involved here protects from disclosure those federal "inter-agency or intra-agency memorandums or letters which would not be available to a party other than an agency in litigation with the agency." 5 U.S.C. Sec. 552(b)(5). This exemption contains two separate conditions and both must be satisfied before a document will be protected from disclosure. First, the document must be either an inter-agency or intra-agency memorandum or letter. Second, that memorandum or letter must be immune from discovery in litigation against the agency.

The Supreme Court cases that have delineated the scope of this exemption have focused on the second condition and incrementally developed a definition of immunity from discovery in the context of FOIA that incorporates the definition of work product developed in civil discovery cases. See, e.g., United States v. Weber Aircraft Corp., 465 U.S. 792, 104 S.Ct. 1488; FTC v. Grolier, Inc., 462 U.S. 19, 103 S.Ct. 2209; NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 95 S.Ct. 1504. No parallel case law exists defining "intra-agency" in the context of the evolving definition of immunity from discovery. Instead, in Weber, the Supreme Court expressly left open the precise question presented by this case: whether statements made by non-agency employees to agency employees are "intra-agency memorandums or letters". Weber, 465 U.S. at 798 n. 13, 104 S.Ct. at 1492 n. 13.

II

The documents at issue in this case are forty-eight affidavits by current and former Thurner employees. In response to Thurner's FOIA request, the Board released twenty-seven of the disputed affidavits to Thurner in redacted form; the other twenty-one the Board refuses to release in any form. These forty-eight affidavits are the last items still in dispute out of the original 2,139 documents listed in the ninety-nine page Vaughn Index ² the NLRB produced in response to Thurner's FOIA requests.

The exact nature of these affidavits is critical to this decision, but the Court has been hampered in the decision-making process by incomplete and conflicting information. Because the NLRB refuses to release the full forty-eight affidavits to Thurner and has avoided in camera inspection by the district court through this interlocutory appeal, the NLRB is the only party with complete knowledge of the contents of the affidavits. Yet it failed to submit an affidavit of its own, or any other form of proof, to support its position that the employee affidavits are intra-agency memoranda. The effect of this failure was exacerbated by the parties' differing characterization of the affidavits both in their briefs and at oral argument.

Both parties agree on three key facts concerning the affidavits: (1) the affiants are or were employees of Thurner rather than of the government; (2) the affidavits were recorded by agents of the NLRB; and (3) the affidavits are not verbatim records of the employees' statements to the NLRB agents. The parties disagree on the extent to which each affidavit is a statement of fact by the affiant rather than an edited distillation with some analytic input by the NLRB agent.

The Board admitted at oral argument that its agents who took these affidavits "will try to use some of the language of the witness," but contended that this is only "so that when the witness reads it later he can say, 'Yes, I said this and this is what happened.' " The Board argued that the questioning, and thus what is in the sworn statement, "is always in the control of the agent." Thurner admitted at oral argument that the NLRB agents "do not write verbatim statements," but contended that by this it meant only that everything "the affiant stated was not necessarily going to be recorded." In response to the Board's assertion that the agent controlled the statement, Thurner pointed out that "these affidavits are initialed and an affiant on an NLRB affidavit is offered the opportunity to cross out and initial anything which is inaccurate, so it is indeed their statement." From these facts we conclude that the affidavits are the product of the Thurner employees who made the statements rather than of the NLRB agents who recorded them.

The agency's own earlier categorization of the affidavits supports our conclusion. Joseph A. Szabo, the Director of the Milwaukee Regional Office of the NLRB, submitted an affidavit to the district court in July 1986 that, among other things, categorized each of the approximately 450 documents listed in the final Vaughn Index. The NLRB created the following categories: (1) Affidavits, (2) Employee Authorization Cards or Anti-Union Petitions, (3) Advice Memoranda, (4) Agenda Minutes, (5) Medical Reports, (6) Investigative Memoranda and (7) Intra-Agency Memoranda. The agency listed the forty-eight disputed documents as "Affidavits," not as "Intra-Agency Memoranda." (Board Exhibit 1 to its motion to reconsider district court's July 16, 1986, production order, at pp. 9-13).

For the purpose of Exemption (b)(5), affidavits are memoranda. Weber, 465 U.S. at 798, 104 S.Ct. at 1492. Therefore if the NLRB considered the statements at issue in this case "intra-agency memoranda" it could, and should, have included them in that category. If the NLRB listed the statements as affidavits because it was trying to provide the court with as detailed a breakdown as possible, it could have categorized the statements as "Intra-Agency Affidavits." In the Szabo affidavit the Board divided memoranda into three descriptive groups (Advice Memoranda, Investigative Memoranda and Intra-Agency Memoranda) and it would have been consistent, logical, and simple to do the same for the affidavits if it had considered any of them to be intra-agency. Even in its brief before us, the Board has often termed the documents "employee affidavits," hardly a proper description for what it would like us to consider intra-agency memoranda.

III

Despite our concluding that the affidavits are the product of Thurner's employees, not NLRB agents, the Board would still maintain that they are intra-agency. Its position rests on the asssertion that the plain meaning of "intra-agency" is simply "within an agency" and that this does not denote origin, but only location or possession. However, the Board's definition of "intra-agency" renders the term meaningless by defining it out of existence. The only documents a party will request from an agency are documents in that agency's...