Wayland v. NLRB

• Decision Date: 11 February 1986
• Docket Number: No. 3-85-0553.,3-85-0553.
• Citation: 627 F. Supp. 1473
• Parties: R. Eddie WAYLAND, Plaintiff, v. NATIONAL LABOR RELATIONS BOARD, National Labor Relations Board, Region 5: Louis J. D'Amico, Regional Director: Mary M. Shanklin, Director, Office of Appeals, Defendants.
• Court: U.S. District Court — Middle District of Tennessee

627 F. Supp. 1473

R. Eddie WAYLAND, Plaintiff, v. NATIONAL LABOR RELATIONS BOARD, National Labor Relations Board, Region 5: Louis J. D'Amico, Regional Director: Mary M. Shanklin, Director, Office of Appeals, Defendants.

No. 3-85-0553.

United States District Court, M.D. Tennessee, Nashville Division.

February 11, 1986.

COPYRIGHT MATERIAL OMITTED

Matthew C. Lonergan, R. Eddie Wayland, King, Ballow & Little, Nashville, Tenn., for plaintiff.

Aileen A. Armstrong, Asst. Gen. Counsel for Special Litigation N.L.R.B., Susan T. Papadopoulos, Washington, D.C., for defendants.

MEMORANDUM

WISEMAN, Chief Judge.

Plaintiff, Eddie Wayland, brings this action against defendants, the National Labor Relations Board ("NLRB"); Louis D'Amico, NLRB Region 5 Director; and Mary Shanklin, Director of the NLRB General Counsel's Office of Appeals, seeking disclosure of certain documents pursuant to the Freedom of Information Act ("FOIA"). 5 U.S.C. § 552. The documents plaintiff seeks relate to two closed unfair labor practice cases. Defendants contend that the materials sought are exempt from disclosure under FOIA exemptions 5, 7(A), (C), and (D). 5 U.S.C. § 552(b)(5), 7(A), (C), (D). The parties have filed cross motions for summary judgment. Jurisdiction has been conferred on this Court by 5 U.S.C. § 552(a)(4)(B).

The facts are undisputed. On January 8, 1985, plaintiff filed a request for documents contained in two unfair labor practice case files with the NLRB pursuant to the provisions of FOIA. Both cases involved charges filed by the Baltimore Newspaper Graphic Communications Union, Local 31. The union subsequently withdrew both the charges, and the cases were closed at the time plaintiff filed his request. By letter dated January 25, 1985, the NLRB Regional Director released copies of several documents, and withheld others. By letter dated March 12, 1985, the NLRB's Regional Counsel denied plaintiff's appeal seeking the withheld documents. On May 3, 1985, plaintiff filed the present action seeking to compel disclosure of the withheld documents. The NLRB's Assistant General Counsel for Special Litigation subsequently released copies of a few documents found to be erroneously withheld.

Defendants have filed a "Vaughn Index of Documents Withheld" describing each document and the applicable FOIA exemptions invoked. See Vaughn v. Rosen, 484 F.2d 820 (D.C.Cir.1973), cert. denied, 415 U.S. 977, 94 S.Ct. 1564, 39 L.Ed.2d 873 (1974). The Vaughn Index reveals that the following 25 documents have been withheld: three witness statements or affidavits given to a Board examiner in connection with the investigation of the unfair labor practice charges; one casehandling chronology recorded by the investigating Board examiner; two logs of Board investigator's contacts; seven sets of handwritten notes by Board examiners or their supervisors concerning evidence gathered by investigation; seven documents containing summary reports and/or agenda outlines which discuss and analyze the relevant evidence acquired by investigation and recommend a particular course of action be taken by the Region; the draft and confirmation copy of a mailgram from the Board examiner to a witness; a handwritten list of questions to be addressed to a particular witness; and two letters.

The FOIA requires disclosure of requested material in the possession of a federal agency unless that material falls within one of the nine statutory exemptions structured to protect specified confidentiality and privacy interests. NLRB v. Robbins Tire & Rubber Co., 437 U.S. 214, 220-21, 98 S.Ct. 2311, 2316, 57 L.Ed.2d 159, 165-66 (1978). These statutory exemptions are to be narrowly construed with all doubts resolved in favor of disclosure. Department of the Air Force v. Rose, 425 U.S. 352, 361-62, 96 S.Ct. 1592, 1599, 48 L.Ed.2d 11, 21 (1976). The agency resisting disclosure bears the burden of establishing the exempt status of the requested material, 5 U.S.C. § 552(a)(4)(B); EPA v. Mink, 410 U.S. 73, 79, 93 S.Ct. 827, 832, 35 L.Ed.2d 119, 128 (1973), and is required to present a detailed justification for nondisclosure in order to carry its burden. See Parke, Davis & Co. v. Califano, 623 F.2d 1, 7 (6th Cir.1980). The FOIA provides for de novo judicial review of an agency's determination to withhold requested material. 5 U.S.C. § 552(a)(4)(B). Mink, 410 U.S. at 79, 93 S.Ct. at 832, 35 L.Ed.2d at 128.

Exemption 5

The NLRB claims that several of the requested documents are protected from disclosure by exemption 5. Exemption 5 permits an agency to withhold:

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). Exemption 5 has been held to encompass recognized civil discovery privileges, FTC v. Grolier, Inc., 462 U.S. 19, 26, 103 S.Ct. 2209, 2214, 76 L.Ed.2d 387, 393 (1983), and the deliberative process, or "executive," privilege. NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 150-51, 95 S.Ct. 1504, 1516, 44 L.Ed.2d 29, 47-48 (1975).

A. Witness Statements

Defendants argue that the witness statements (Vaughn Index Nos. 3, 11, 12) fall within the attorney work product privilege and/or the deliberative process privilege. In NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 154, 95 S.Ct. 1504, 1518, 44 L.Ed.2d 29, 49 (1975), the Supreme Court ruled that "memoranda prepared by an attorney in contemplation of litigation which set forth the attorney's theory of the case and his litigation strategy" constitute attorney work product which is protected from disclosure by exemption 5. The Court also explained that exemption 5 includes the deliberative process privilege which encompasses predecisional documents "reflecting advisory opinions, recommendations and deliberations comprising part of a process by which governmental decisions and policies are formulated." 421 U.S. at 150, 95 S.Ct. at 1516, 44 L.Ed.2d at 47.

Most courts have held that witness statements obtained by NLRB employees are not protected from disclosure by exemption 5, either because they do not constitute "memorandums or letters," see Poss v. NLRB, 565 F.2d 654, 659 (10th Cir.1977); Baptist Memorial Hospital v. NLRB, 92 LRRM 2645 (W.D.Tenn.1976), or because they contain purely factual, investigative material that is not inextricably interwined with deliberative material. See Associated Dry Goods Corp. v. NLRB, 455 F.Supp. 802, 809 (S.D.N.Y.1978); Joseph Horne Co. v. NLRB, 455 F.Supp. 1383, 1387 (W.D.Pa. 1978); Marathon LeTourneau Co. v. NLRB, 414 F.Supp. 1074, 1080 (S.D.Miss. 1976); Amerace Corp. v. NLRB, 431 F.Supp. 453, 455 (W.D.Tenn.1976).

With respect to the work product privilege, the Court concludes that the NLRB has not shown that these witness statements are other than an objective reporting of facts, and thus do not reflect the attorney's theory of the case and his litigation strategy. Similarly, the Court concludes that the NLRB has not shown that disclosure of the witness statements would reveal the internal deliberative processes of the agency. Moreover, the Court does not consider the witness statements to be inextricably intertwined with deliberative material merely because the choice of facts reported or of questions asked necessarily reveal the reporter's viewpoint. See Powell v. United States, 584 F.Supp. 1508, 1519 (N.D.Calif.1984). Thus, the Court concludes that even if the witness statements are considered to be "memorandums or letters," they do not come within exemption 5.

B. Summary Reports

Defendants also argue that the summary reports qualify for the deliberative process privilege. Defendants state that these reports are prepared by an NLRB examiner for the Regional Director and contain a summary of the relevant evidence gathered during the investigation along with a recommended course of action. The Court concludes that these predecisional documents fall within the scope of the deliberative process privilege as described in Sears. They contain recommendations and, according to defendants, serve as a basis for discussion in the course of the Regional Director's decision whether or not to issue a complaint. Accordingly, the summary reports (Vaughn Index Nos. 7-9, 22-25) are exempt from disclosure under exemption 5.

C. Other Documents

Defendants contend that the remaining documents are so closely related to the witness statements that they should be exempt from disclosure for the same reasons they argued that the statements were exempt. With respect to the Board Examiner's list of questions to be addressed to a specific witness and a mailgram enlisting cooperation from a witness (Vaughn Index Nos. 16, 17, 20), the Court concludes that these documents are not exempt from disclosure under exemption 5 for the same reasons that the witness statements were held to be nonexempt. The NLRB has not shown that either of these documents reflect an attorney's theory or litigation strategy under the work product privilege, or that they reflect the deliberative processes of the agency.

The description of the remaining documents—handwritten notes, a letter, a casehandling chronology, and logs of investigator's contacts—by the NLRB is insufficient to allow the Court to consider the applicability of exemption 5 to these documents. In this regard, the Court notes that courts considering the exempt status of notes promulgated by NLRB personnel find, depending on the content and context in which the notes were promulgated, that some notes fall within the deliberative process privilege, and others consist of purely factual accounts of witness interviews that are disclosable. See e.g., Poss v. NLRB, 565 F.2d 654, 659 (10th Cir.1977); Associated Dry Goods Corp. v. NLRB, 455 F.Supp. 802, 811 (S.D.N.Y.1978); Joseph Horne Co. v. NLRB, 455 F.Supp. 1383, 1387-88 (W.D. Pa.1978). Defendants' description of these documents is conclusory, and fails to disclose how these documents fit into the deliberative process, ...