NEW YORK LAW SCHOOL LAW REVIEW
THE TITLE GUARANTEE THEORY AND RELATED DECISIONS: ARE THE COURTS INTERFERING WITH EXEMPTION 7 OF THE FOIA?
by Jay Itkowitz
The amendments to the Freedom of Information Act1
have been in effect for three years. One of the most significant revisions
concerned the treatment of investigatory records. Here, Congress sought to
breathe new life into an exemption that was fast becoming a dead letter due to a
number of circuit court decisions that had made it virtually impossible for
citizens to obtain access to any investigatory material gathered for law
enforcement proceedings.2 To correct those judicial interpretations
of a law which was designed to foster - not cut off - public access to
government documents, Congress completely redrafted exemption 7.3
Exemption 7 deals with records gathered for use in a broad range of
government investigations which are conducted to enforce the nation's criminal
and civil laws.4 The conduct of the government in enforcing these
laws is of the utmost concern to all citizens. Access to this material is
essential to the citizenry to have the broadest possible knowledge of how laws
are being used and, consequently, to make an intelligent decision when electing
officials who select and approve those who control our law enforcement agencies.5
This discussion canvasses the more significant decisions that have been
rendered thus far with respect to the exemption subsection most susceptible to a
broad interpretation by the courts - 7(A). The purpose of this analysis is to
determine how the courts are construing the amendment - whether they are acting
consistently with the will of Congress - and how, based on these recent
decisions, the courts may be expected to proceed. Most of the decisions thus far
have involved attempts by defendants in proceedings before the National Labor
Relations Board to use the FOIA, particularly exemption 7, as a discovery tool.
The reason for this "rash" of NLRB-FOIA cases is the Board's restrictive
discovery procedures.6 By focusing on these decisions, a judicial
trend that can be expected to reach outside of the NLRB area may be discerned.
The first FOIA exemption case to reach the circuit level, Title Guarantee
Co. v. NLRB,7 is still the leading case on the amendment. In
Title, the defendant filed an FOIA suit to compel the NLRB to disclose all
written statements obtained from employees by the Board in connection with its
issuing an unfair labor practice complaint against the company.8
Title Guarantee sought to use these statements in preparing its defense to the
proceeding. The company successfully sought a stay from the district court9
of the NLRB proceedings upon failure of the NLRB to comply with the lower
court's determination that such statements must be disclosed.10 That
decision was reversed by the Second Circuit Court of Appeals.11
The key issue was whether disclosure of such statements prior to the NLRB
proceeding - in opposition to the Board's discovery rules - would constitute
7(A) interference per se no matter what was contained in the material. The
district court had reviewed the material and specifically found that it would
not. Such review was superfluous, however, since the court of appeals found as a
matter of law that such disclosure would, by definition, constitute 7(A)
In arguing against disclosure of employee statements, the NLRB advanced three
ways that disclosure would interfere with the Board's proceedings. The Board
first averred that disclosure might enable suspected violators of the National
Labor Relations Act13 to learn the Board's case in advance of the
hearings. A defendant, armed with such knowledge, would be able to frustrate the
proceedings or construct defenses which presumably he would not otherwise have
been able to maintain without such documents. Consequently, violations of the
statute would go unremedied. Second, the Board argued, disclosure might inhibit
employees from providing information since they would fear the retaliation that
might follow from the employer's knowledge of an employee's cooperation with the
Board. A corollary to this argument was that union officials might not want to
cooperate for fear of compromising the union's position in negotiations. Third,
the Board claimed that these employee affidavits were attorney "work product"
which would reveal investigative and prosecutorial strategy.14 In
finding that the documents were exempt, the Second Circuit found the first two
arguments asserted by the Board to be persuasive in that disclosure "could well"
result in the Board's predicted results.15
The Second Circuit view has been adopted by every other circuit court that
has considered the issue of whether affidavits compiled in labor investigations
can be subject to disclosure prior to a labor board hearing.16 Since
Title rationale has been applied consistently, the Second Circuit's
reasoning is essential to determining whether congressional intent is being
The Title court began its analysis with an examination of the labor
board's authority to promulgate rules for its proceedings under the National
Labor Relations Act.17 The court observed that the Board's discovery
procedures, in contrast with the Federal Rules of Civil Procedure, are quite
restrictive. In fact, the NLRB does not permit any pre-trial discovery.18
The Second Circuit recognized that to accept the plaintiff's arguments "would be
tantamount to the issuance of new, broader discovery rules for NLRB
proceedings."19 Moreover, such an FOIA-imposed approach on the Board
would put it at a "distinctive disadvantage" in bringing unfair labor practice
cases since the Board would be required, in effect, to submit to pre-trial
discovery while the defendant would not.20 This result is inevitable
since the Board, although authorized to do so,21 has not promulgated
any discovery procedures. The court's awareness that such a decision would
broaden the Board's discovery procedures led it to conclude that Congress did
not intend these rules, which the Congress itself had authorized in the first
place, to be overruled by a "back-door amendment to the FOIA."22 Had
Congress so intended, the court reasoned, it could have done so by amending the
National Labor Relations Act or by legislating discovery procedures for all
pending administrative enforcement proceedings.23
The Board also contended that the FOIA, as amended, continues "prior law"
with respect to investigatory records in "open cases" and that any disclosure in
a pending proceeding would amount to interference. Under the "prior law," that
is prior to the amendments, congressional intent was, and the courts ruled, that
there could be no discovery in pending cases. Congress was concerned
specifically with preventing a defendant in a criminal or civil proceeding from
using the FOIA to get indirectly "any earlier or greater access to investigatory
files than he would have directly in such litigation or proceedings."24
The Second Circuit never expressly indicated that it agreed with the
Board that the "prior law" in open cases continues to be applicable under the
amended Act. Nevertheless, the court's discussion of the case law and of the
legislative history to the amended Act implies that it has adopted this
The Board contended that Wellman Industries, Inc. v. NLRB25
supported its "prior law" proposition. In Wellman, it was held that
affidavits obtained by an NLRB investigator during an inquiry into the validity
of a representational election were exempt and would not be disclosed to the
plaintiff-employer. But Wellman is of questionable value in construing
the amended Act since it is predicated on two ideas, both of which may not be
relevant in light of the amendments. One premise is that exempting affidavits in
pending proceedings is necessary to safeguard the ability of the NLRB to
investigate cases. The Wellman court believed that an employee would be less
likely to come forward for fear of reprisal if he knew his statements would be
given to his employer.26 But under the amended Act, assuming the
statements are not protected by section 7(A), such a consideration is not a
legitimate objection to disclosure since the original Act had no provision
similar to section 7(D).27 Under this sub-category, the information
the confidential source gives the agency is not protected28 but the
agency can withhold the names, addresses, and other information that would
reveal the identity of the confidential source.29 Thus, where the
names and other identifying details can be excised, there is no danger of
disclosure of sources and consequent inhibition of the flow of information to
the NLRB - at least where a few persons are involved.
The second ground for the Wellman decision may or may not still be
valid. That ground rests on the court's view that an exemption "is necessary to
prevent premature disclosure so that the Board can present its strongest case in
But whether this ground is valid depends on whether the "prior law" still lives
under this completely redrafted exemption. The Second Circuit's references to
Wellman and Wellford v. Hardin31 give the impression that
the court bought the Board's argument that the prior law lives on. Yet, the
discussion is ambiguous since the court does not indicate whether it is
restating the Board's argument or whether it agrees that the cases support the
proposition that prior law applies so that any disclosure in a pending
enforcement proceeding constitutes interference.32 However, this
ambiguity is lessened by the court's statement that this reading of 7(A) finds
"additional support in some of Senator [Philip] Hart's statements in connection
with the introduction of his amendment."33
A further indication that the Second Circuit accepted the Board's argument
that the prior law continues under the amended Act is its discussion of
Frankel v. SEC,34 a Second Circuit case under the original Act
which held that agency investigative files remain exempt from disclosure even
after the close of an enforcement proceeding. The Title court reasoned
that the legislative history indicated that the amended exemption was designed
specifically to overrule the Frankel holding. It is true that Frankel
was a significant, though underlying, cause of Congress' discomfort with the
judicial treatment exemption 7 was receiving.35 But the court was in
error when it said that the issue with which that case dealt was the "particular
problem" Congress wanted to correct in redrafting the exemption.36 If
Congress was that upset, why wasn't Frankel on Senator Hart's list of
cases the amendment was designed specifically to overrule?37
Of the four cases on Senator Hart's list, only two involved Frankel-related
issues.38 Thus, Congress was concerned with more than just the issue
of whether closed files were to be subject to disclosure. Congress was concerned
with the broader problem of how the courts were construing the exemption39
and with creating a standard that would lead to disclosure of closed files and
open ones in appropriate cases. In fact, the Title court's opinion seemed
to recognize this in commenting that: "The cases that Exemption 7(A) was
intended to overrule40 were for the most part closed
investigative file cases."41 However, the court spoke differently
earlier in the opinion when it said that opening closed files was the
specific purpose of the amended Act.42 Yet, the continued
emphasis of the court was that the prime intent of Congress was to overrule
Frankel, which leads to the inevitable conclusion that the court believed
that the prior law in open cases still governs.
A similarly narrow view of exemption 7 was taken by the Tenth Circuit in
Climax Molybdenum Co. v. NLRB.43 There, the court stated that the
"only purpose for amending the exemption statute was in order to overcome the
restrictive decisions of the D.C. Circuit44 and thereby to restore
the exemption to its previous status."45 Whether the amendment was
solely intended to overrule Frankel or not, the effect is the same.
It results in an interpretation of the amended exemption which continues the
case law which prevailed despite the fact that the amendment has been completely
There is one final indication that the Title court accepted the view
that in open cases prior law still governs. The court referred to Attorney
General's Memorandum on the 1974 Amendments for the proposition that 7(A) will
normally apply to pending proceedings and that "[o]ne example of interference
when litigation is pending or in prospect is harm to the Government's case
through the premature release of information not possessed by known or potential
adverse parties."46 That is precisely the view the NLRB has advanced.
The court agreed.47 Of course, it is normally a dangerous policy for
the courts to give undue weight to an Attorney General's Memorandum.48
The original FOIA as well as the amended Act were opposed by every government
agency including the Justice Department.49 Thus, it is not surprising
that the agencies, and particularly the justice Department, which represents the
government in many FOIA cases, might not take the pro-disclosure view of the
exemptions against which it had lobbied in the Congress.
THE REJECTED DISTRICT COURT VIEW
The district court's view that there was no 7(A) interference was one of the
first judicial constructions of the amended FOIA and quickly had a significant
impact on other district courts faced with the same issue.50 Its
impact, however, has been sharply diminished if not altogether extinguished by
the per se approach fashioned by the Second Circuit and followed by other
In ruling that disclosure would not interfere with the Board's proceedings under
the amended FOIA, the district court gave great weight to portions of the
legislative history which indicated that general contentions by an agency are
not enough for the agency to carry its statutory burden of proof52
and prevent disclosure.53 The court held that the drafters of the new
amendment intended that "the courts must examine each situation individually and
determine if any of the specific harms enumerated by the statute would result
from disclosure."54 This certainly seems to be the import of at least
some of Senator Hart's remarks when he introduced the amendment and explained
how it would work.55 These remarks are ambiguous only to the extent
that his other statements can be taken to mean that the amendment was merely
designed to restore the exemption to the status that Congress had intended when
it originally enacted the FOIA.56 Obviously, those remarks were given
greater weight by the Second Circuit despite the fact that even opponents of the
amendment, who fought to sustain President Ford's veto, assumed that agencies
would have to particularize their objections to establish the right to prevent
disclosure.57 It seems unlikely that Senator Thurmond would have been
so troubled as to propose a lesser standard of proof - that the government be
able to exempt material by demonstrating a "substantial possibility" of harm -
had he known that the circuit courts would allow a law enforcement agency a
blanket exemption on a mere showing that disclosure would conflict with agency
Since the Title district court found 7(A) inapplicable, the court
examined the material sought by the employer. The amended Act specifically
authorizes courts to review such material in camera to see if it fits
within any of the Act's exemptions.59 The court concluded that the
affidavits would not specifically harm the proceeding in question since
"[w]hatever value Title Guarantee may gain from the information sought will not
be based on the timing of such release (i.e., such as giving it time to
prepare a better cross examination) but rather on its determination of whether
any material contained in the released documents supports its contentions."60
One court even opined that release of such material could actually help the NLRB
by fostering the settlement of claims following the issuance of complaints where
the statements showed that the Board had a strong case.61
There is another reason, not articulated by the Title district court, why
some district courts have reached a different view than the prevailing circuit
position. That involves one of the basic concepts of the Act: that it may be
invoked by "any person."62 Not too long ago, in another NLRB-FOIA
case,63 the supreme Court commented:
"[The employers'] rights under the Act are neither increased nor decreased
by reason of the fact that it claims an interest in the Advise and Appeals
Memoranda [re: exemption 5] greater than that shared by the average member of
the public. The Act is fundamentally designed to inform the public about agency
action and not to benefit private litigants."64
The above language has been cited by a number of district courts which have
refused to allow the fact that an FOIA plaintiff was a party to an action to
affect their interpretation of 7(A).65 This would seem the logical
result of the supreme Court language. In fact, if the Court's words are taken
literally, it would seem the courts are bound not to consider the personal stake
of the FOIA plaintiff, as the Second Circuit did.66
SIGNIFICANCE OF THE "PER SE" APPROACH
The Title decision has at least two significant implications with respect
to the amended FOIA. First, the decision and its rapidly gaining acceptance by
the other circuits may well mean the issue has been foreclosed with respect to
NLRB cases. Thus far, not one circuit has taken a different view despite the
Second Circuit's statement that it was "almost persuaded" by the arguments set
forth by Title Guarantee and the district court.67 Few district
decisions to the contrary have not been reversed,68 and those that
still stand are on weak ground69 unless a contrary circuit Court view
emerges. Moreover, as the situation now stands, the supreme Court by declining
to review the Title and Goodfriend cases has shown no inclination
to reverse this trend. While that does not mean the supreme Court agrees with
the per se approach, it may indicate that the Court is not going to decide such
a case unless or until a conflict emerges among the circuits.
The second and more far-reaching implication of the Title-line of court
of appeals cases is what it portends for FOIA cases outside of the NLRB area.
Despite the Second Circuit's disclaimers in Title,70 its
analysis of the FOIA legislative history and its reliance on pre-amendment cases71
has already and will continue to influence FOIA cases involving agencies other
than the NLRB. For instance, the Second Circuit's statement - that allowing
discovery was not the intent of Congress in enacting the amendment and that had
Congress wanted to change the NLRB discovery rules it could have used other
means - applies with equal vigor to all enforcement proceedings. It is difficult
to see how the court's reliance on Wellman, Wellford and
Williams for the proposition that exemption 7 was designed to prevent
earlier access than a party would receive in an enforcement proceeding can be
limited to the NLRB context. The court can disclaim the holding as to its
applicability to non-NLRB cases, but it can hardly disclaim the route it took to
get there. How can the courts find, in the NLRB context, that the prime purpose
of the amended exemption was to overrule the decisions that closed files remain
closed72 while not finding the same outside the NLRB context? The
same must hold true of the statement that had Congress wished to change
administrative discovery proceedings it could have done so by doing just that
and not by amending the FOIA. This trend has already begun to take place in
recent cases outside the NLRB area where the per se approach has begun to take
In United States v. Murdock,74 the Fifth Circuit faced the
issue that heretofore had been confined to NLRB cases on the circuit level:
whether under the FOIA information could be disclosed which was not ordinarily
available under the rules of procedure governing a pending proceeding. In
Murdock, the defendant in a criminal tax prosecution tried to use the FOIA
to get information which he was not entitled to under the Federal Rules of
Criminal Procedure. In reaching the same result as the per se NLRB circuit court
decisions, the Fifth Circuit found support in the original Act's legislative
history,75 a Sixth Circuit case decided before the amendments took
effect,76 and in the Second Circuit's Title decision. In
language similar to the Second Circuit, the court held:
"In a criminal case the discovery proceedings are governed by the Federal Rules
of Criminal Procedure . . . had Congress intended to amend the explicit
discovery procedures . . . by enactment of the FOIA, it undoubtedly could have
done so. No such intention appears in either the Act or its legislative history
. . . [W]e find that the FOIA was not intended as a device . . . to enlarge the
scope of discovery beyond that already provided by the Federal Rules of Criminal
Similarly, in Kanter v. IRS,78 the district court found the
per se NLRB cases instructive despite its acknowledgment that many of the
NLRB-FOIA cases limited their holdings to the labor context.79 In
Kanter, as in Murdock, the defendants in a criminal tax case
attempted to use the FOIA to gain more information than they were entitled to
under the Federal Rules of Criminal Procedure. Like the Murdock court,
the court found such disclosure would constitute 7(A) interference. The court
"It is self-evident that additional discovery will strengthen the position of a
party defending an enforcement action at the expense of the government case . .
. A strict FOIA analysis implies that the release of materials otherwise
unavailable to a litigant would increase a defendant's resources and thereby
weaken and interfere with the government's efforts in an enforcement action."80
But the court did not hold that the release of any and all information that
would help a criminal defendant's defense would be exempt by virtue of 7(A). The
prosecutions in the case stemmed from Project Haven, an IRS investigation of the
use of off-shore oil trusts for tax evasion purposes. The government's conduct
during the investigation was questionable. Such actions would not be protected
by 7(A), the court said, noting that the "FOIA does not shield materials
relating to unauthorized or illegal investigative tactics."81 Thus,
the court indicated a willingness to order disclosure in at least one instance
even though the government's case might be weakened in court.
Murdock and Kanter are not isolated interpretations of 7(A). Other
courts have followed the per se view fashioned by the NLRB cases.82
Moreover, even before the per se approach was beginning to take hold, there were
indications the courts would be less than adventurous in their approach to the
amended Act. In Baldwin v. Finney,83 the plaintiffs sought the
investigatory files which related to former Vice President Agnew and his plea of
nolo contendere to a charge of Federal income tax evasion. In a memorandum
order, the court directed the defendants to submit certain documents to the
court for in camera inspection. Like the NLRB, the Justice Department
argued that the documents sought were exempt from disclosure because the
materials were part of a "continuing and ongoing investigation."84
The court refused to accept the defendant's conclusory response since there
would necessarily be at least some documents involving the Agnew investigation
which became closed upon his sentencing. But then the court added: "There may
well be documents which are used in the Agnew prosecution which would also
relate to the present and future investigations. These certainly would be
Thus, the court summarily concluded that the 7(A) exemption was available to the
Government whenever there was an ongoing investigation. There was no effort to
determine whether disclosure, assuming there was a related ongoing
investigation, would actually interfere with such a proceeding.
But not every non-NLRB district case has accepted the assumption that 7(A) ipso
facto applies to pending proceedings. In Control Data v. FTC,86
the court was faced with virtually the same claims so successfully argued by the
NLRB on the appellate level.
There, the FTC had issued a complaint against Control Data and the corporation
sought a list of names and addresses of persons known by the FTC to have
knowledge of facts underlying the complaint.87 The material was first
sought in the administrative proceeding: the request was denied by the
administrative law judge.88 Next, the firm sought the material in an
Like the NLRB, the FTC argued that since the material was not discoverable in
the administrative proceeding, disclosure in the FOIA suit would amount to
interference under 7(A). This contention was rejected by the court.89
The new amendments were not just an academic exercise by Congress, the court
noted. "Under [the old] statute, the Court was to determine if a party
requesting the documents would have a right to them in a litigation proceeding
and, only if so, were the documents to be released."90 But the court
observed that the language of the statute had been changed and that consequently
it must now determine a "totally new" question: whether disclosure would result
in interference with the pending proceeding. In deciding that question, the
court said, reference to pre-existing case law was inappropriate.91
The FTC also argued that disclosure of the names in question would allow the
plaintiffs to identify and locate persons the FTC had relied upon in deciding to
issue the complaint. The FTC claimed that disclosure would allow the plaintiffs
an opportunity to speak with these people and to learn the FTC's case in
advance, thus putting the plaintiffs in the position where they could frustrate
the proceedings.92 The court rejected this contention since the list
was lengthy and contained the names of many people on whom the FTC did not rely.
Only statements by individuals on the list, not the list itself, could identify
such key witnesses, the court reasoned.93 Of course, if the Control
court adopted the protective per se standard it would likely have concluded that
such a list "could well" lead to persons with such knowledge and result in the
plaintiffs learning the case in advance in violation of FTC administrative
The FTC also argued that disclosure of the list would allow the plaintiffs, by
contacting the persons on it, to learn the FTC's trial strategy and theories of
the case.94 The court recognized that this argument was partially
true, just as it was true that the list would allow the plaintiffs an
opportunity to find out who was contacted by the FTC when they interviewed such
persons. But, the court concluded, "Congress cannot have meant . . . that an
enforcement proceeding is 'interfered with' simply by virtue of the fact that
the defendant in such proceedings is permitted to prepare a defense."95
This view was consistent with the court's belief that 7(A) must be construed in
light of the modern philosophy of American jurisprudence "which has long since
abandoned the notion that ideal enforcement proceedings consist of governmental
ambush of the defendant."96 Thus, the court concluded that a
"reasonable amount of pretrial discovery," here imposed by an FOIA suit, will
not constitute 7(A) interference but will actually aid the enforcement
proceeding "by making the adversary system work more effectively."97
The FTC also argued, as did the NLRB, that disclosing the list and, in effect,
allowing the plaintiffs to contact the persons the FTC had used in constructing
its complaint would interfere with the enforcement proceeding since the listed
individuals would become reluctant to cooperate with the FTC and such reluctance
would impair the gathering of all the needed facts for the ongoing
investigation. The court considered these two contentions as constituting a
single 7(D) claim98 rather than a 7(A) claim and since the court had
already ruled (and the FTC had so conceded) that the list was not exempt under
7(D), the court ordered disclosure of the list of names.99
Control Data was one of the early interpretations of the amended Act.
While it has not been reversed, its reasoning parallels some of the earlier NLRB
cases which have been overturned,100 but which seem more consistent
with the congressional intent to infuse new life into the Act. The battle to
amend the Act was not an easy one. Those that were in the forefront of the fight
believed the amendment of exemption 7 would bring about profound changes in how
the courts construed the amendment. For example, Senator Lowell Weicker
acknowledged that the amendment would make life more difficult for the
government agencies but believed such difficulties would be worth the price. He
"Yes, it is going to make the job of the law enforcement agencies more difficult
in that it brings them out in the open. But let me assure you, the far greater
danger lies behind closed doors and in locked files. None of the abuses that we
have seen come out of this system, i.e., Watergate and intelligence agency
abuses, etc. would have happened if more people, more eyes, more ears, had been
on the scene . . .
"What is expected of each of us now is that we stand up and look where we have
not looked before, and that is exactly what this amendment attempts to achieve,
and why it is supported so wholeheartedly. It is not anti-law enforcement, and
it is not antipatriotic. This amendment is democracy."101
Yet the view manifested in the earlier cases such as Control Data is not
likely to survive the per se tide which is sweeping the courts and washing away
the vitality with which those, like Senator Weicker, thought they were imbuing
the amended exemption. Instead, the courts have taken a much narrower view of
the amendment. Rather than approaching FOIA suits on a case by case basis, the
per se courts have said that to allow the FOIA to permit discovery where it was
not allowed in the administrative proceeding would constitute 7(A) interference.
Interference now appears to include allowing a party earlier or greater access
than he otherwise would have had. This pervasive approach, unfortunately, would
also appear to include situations where an agency withholds information
favorable to a defendant's case.102
WHERE DOES 7(A) INTERFERENCE END?
The per se cases and their implications naturally raise the question as to when
the protection of 7(A) ceases for government agencies. This issue was beginning
to emerge in the 1970s before it became immaterial in light of Frankel,
Weisberg and Aspin.
The question had arisen in Bristol-Myers v. FTC.103 There the
FTC resisted attempts by the plaintiff to attack documents pertaining to the
investigation of Bristol-Myers and other firms for misleading advertising
practices. The FTC had issued a complaint against Bristol-Myers but had
withdrawn it in favor of initiating a rule-making proceeding instead of moving
against the company.104 More than two years passed after the
complaint was withdrawn before the plaintiff brought an FOIA action. The D.C.
circuit reversed the district court's determination that the material was exempt
and directed the district court to determine if the possibility of enforcement
proceedings was "concrete enough"105 to allow the exemption to apply.
The court cautioned that "the agency cannot, consistent with the broad
disclosure mandate of the Act, protect all its files with the label
'investigatory' and a suggestion that enforcement proceedings may be launched at
some unspecified future date,"106 and that there must be a concrete
prospect of an enforcement proceeding for the exemption to apply.
Bristol-Myers was severely circumscribed by Aspin when the D.C.
circuit explicitly indicated its preference for the Frankel view107
that all investigatory files - even closed ones - were exempt. However, since
the prevailing view is that the amendment overruled these cases and that prior
law is still relevant, Bristol-Myers is apparently alive again, and
applicable to 7(A).
But because this case was vitiated by later cases decided under the original
exemption, there was no need to further refine the disclosure standard. Thus
far, few cases have arisen on the question of just when investigative files
become available under the amended Act.108 In Title the Second
Circuit indirectly touched this issue. The court quoted a passage from a bar
committee report that stated: "[O]nce the investigation is completed and all
reasonably foreseeable administrative and judicial proceedings concluded, the
files must be disclosed."109 Given the Second Circuit's sweeping
interpretation of 7(A) interference, it would not be unlikely if the court
adopted the above passage as its standard for determining when interference ends
and disclosure begins. After all, it would be only at this point that all
possibility of interference with an enforcement proceeding would cease.110
Until then, there is a possibility that information which was not disclosed
during an FOIA suit could aid the defendant either in the preparation of an
appeal111 or in a new proceeding should the defendant win a reversal
calling for a remand.
One recent case lends support to the intimation of the Second Circuit that
documents remain exempt until the prospect of all proceedings has ended. In
Amerace Corp. v. NLRB112 the plaintiff sought affidavits upon
which the NLRB based its complaint after the unfair labor practice proceeding
had ended. The court, however, refused to order disclosure of statements which
were not shown to the plaintiff at the hearing on the ground that the plaintiff
had not exhausted his appeal of the Board decision and there was still the
possibility of a remand.113
In New England Medical Center Hosp. v. NLRB,114 the First
Circuit held that even closed files could be exempt under 7(A). The court
did not reach the Board's argument that NLRB files should be permanently closed
since disclosure would impair the Board's ability to prosecute future unfair
labor practice violations by deterring employees from coming forward with
information for fear of employer reprisals.115 But it did rule that
closed files were exempt under 7(A) where disclosure was barred by the Board's
"discovery resistant policies."116 To open these files would enable
the plaintiff-hospital to construct defenses it would not otherwise be able to
develop for a pending proceeding which was contemporary with, and closely
related to another active proceeding.117 In that case, the court held
that closed files concerning two employees could not be disclosed where those
files related to a pending proceeding before the NLRB involving a third
employee.118 Prior to that opinion, Baldwin v. Finley119
had also suggested that where an investigation was closed (as was the tax case
against former Vice President Agnew) documents might still be exempt under 7(A)
if they also related to present and future investigations involving other
One recent case held that even where an investigation was "dormant" 7(A) could
still be applied to protect investigatory files from disclosure. In National
Public Radio v. Bell,120 a reporter for National Public Radio, a
nonprofit corporation providing network news services to public radio stations
across the country, sought access to Department of Justice files concerning
Karen Silkwood, whose union activities at a nuclear power plant and subsequent
suspicious death aroused public and Congressional interest. The court held the
files were exempt under 7(A) because, while the investigation was currently
inactive, the Department of Justice had conducted an extensive investigation
into the possible commission of a federal crime. The court noted that, "[t]he
usual, expected outcome of such an investigation would be the apprehension and
conviction of a perpetrator or perpetrators presently unknown."121
The court held that the file was still "active" and would "hopefully" lead to a
future law enforcement proceeding.122 It based its holding that the
entire files were exempt on the "very real possibility of a criminal learning in
alarming detail of the government's investigation of his crime before the
government has had the opportunity to bring him to justice."123 In
holding that the files were exempt "at this time," the court noted that the
applicable statute of limitations had yet to expire, implying that its
expiration would mark the end of the prospect of law enforcement proceedings and
the beginning of disclosure.
PROBLEMS WITH TITLE
The Title-line of cases create a number of analytical problems which
indicate they were erroneously decided and that the better view was enunciated
by the Title and Control Data district courts.
First, the per se approach to the amended Act contradicts the teaching of the
supreme Court that the Act may be invoked by any person and that a person's
rights should not be increased or decreased by virtue of the fact that one is a
party to another action.124 Under this view, it is erroneous to base
a finding of "interference" on the fact that one is attempting to use the Act
for "backdoor" discovery. This is particularly true since barring access to a
litigant may ipso facto bar access to a non-litigant. As one court has noted:
"What matters is whether the information is appropriate for immediate release to
a current or prospective litigant. If the information is not to be released to
any litigant then the agency is justified in withholding disclosure to any FOIA
plaintiff. Otherwise the policy of the exemption could be subverted by the use
of straw plaintiffs by an unrelated member of the public. FOIA contains no
restrictions which would bar further spread of the information after it is
released by the agency."125
This presents the anomalous situation of the tail wagging the dog. The
litigant's rights are decreased because he has a stake in the case and is
attempting to use the Act for discovery purposes. And the public's rights are
decreased because access to the public cannot be granted without granting access
to the litigant. The public therefore cannot obtain access until the litigant
can. And the litigant cannot gain access until all possible administrative and
judicial appeals have been exhausted. It is self-evident that the wheels of
justice grind slowly in the United States. It is common for administrative and
judicial appeals to take years before a decision becomes final.126
Yet, the public will not have access to such government files until appeals are
exhausted, at which point they would presumably be of interest only to lawyers
Thus, for the Act to provide effective citizen access to government
investigatory files, the courts must determine whether the enforcement
proceeding will be actually harmed, independent of the agency's discovery rules.127
A finding of actual harm necessitates a case-by-case analysis of each FOIA suit
rather than reliance on a blanket rule. This was the clear import of Senator
Hart's remarks that in deciding the interference question "it is only relevant
to make such determination in the context of the particular enforcement
Second, the Title-line of cases stands the agencies' statutory burden of
proof requirement129 on its head by allowing an agency to exempt
material by claiming that disclosure "could well" harm a proceeding or threaten
a potential proceeding in the slightest degree,130 in effect
switching the burden onto the FOIA plaintiff to show that no harm will flow from
disclosure. This was not the intent of the amendment's framers. Senator Hart
said that the exemption would obtain where the government made a showing that
the proceeding "would be harmed."131 This was the understanding of
those who fought the amended Act on the floor. Why else would Senator Thurmond
suggest a lesser burden of proof for government agencies?132
The Title court's analysis of the amended Act's legislative history leads
it to the narrowest of possible constructions. It established Wellman and
Wellford as viable precedents under the amended Act even though there is
little in the amended Acts legislative history to indicate that using the FOIA
as a discovery tool would be an illicit use of the Act.133 The
analysis further presumes that the only purpose of the amended Act was to
overrule prior circuit decisions which held that investigative files should
remain shielded from public view even after the cases were closed. But Congress
did not have such a limited purpose in mind. There was no indication that
Congress was dissatisfied with the judicial treatment exemption 7 was getting
until Frankel, Weisberg, and Aspin came along. It is true
that prior to these cases Congress did not move to amend the Act. It is also
true that these limiting rulings made it imperative for Congress to act if it
didn't want the investigatory files exemption to provide blanket protection for
all files. But just because Congress did not originally intend to amend the Act
does not mean Congress approved of restrictive agency arguments "or judicial
decisions which duly constrict the Act."134 The original decision not
to amend was based on the fear that redrafting the amendment "might increase
rather than lessen confusion in interpretation of the FOIA."135 Thus
it is inaccurate to assume that because Congress did not act until the original
per se view became prevalent that that was the only target of
congressional redrafting and that prior non-disclosure cases are necessarily
valid under the new language.
Finally, one constant theme permeating the legislative history is Congress'
disapproval of "wooden and mechanical" applications of the FOIA.136
In amending exemption 7, Congress attempted to make clear that it wanted the
courts to "look behind the investigation mark stamped on the file folder."137
The courts are doing exactly the same thing that Congress disapproved of by
applying the new per se rule. They are accepting an agency's word, without
inquiring further, that disclosure of information will harm an enforcement
proceeding. Congress hoped for far more from the judiciary when it completely
redrafted exemption 7 to the FOIA and overrode a presidential veto to enact it.
The Title case reasoning is spreading fast among the circuits. Unless
another circuit adopts a different view in the near future, the per se line is
likely to provide unanimous blanket protection for the NLRB in all the circuits.
But the per se approach is more far reaching. The significance of the approach
in NLRB cases is not that it accepts the NLRB argument that disclosure in a
pending proceeding will cause harm to the NLRB's case. The significance is in
its analysis of the legislative history of the FOIA and its unavoidable
implication that one of the original purposes of the exemption - preventing
earlier or greater access than a party to a proceeding would otherwise have - is
still valid under the amended Act. Logically, acceptance of this view means that
parties to any administrative proceedings and the public will not be able to
rely on the FOIA to obtain disclosure, at least until such proceedings end, and
end definitively. A case like Control Data is not likely to survive in
light of the momentum among the circuits initially instigated by the Title
case. It also shows a continuing reluctance of the courts to provide substance
to the oft-repeated but seldom-followed rule of construction that the courts are
supposed to be applying to the FOIA: The exemptions to the Act shall be
"narrowly construed" and "ambiguities" shall be resolved in favor of disclosure.138
In the final analysis, the courts are telling Congress it is not enough to
indicate generalized dissatisfaction with government secrecy. Congress has asked
the courts to be creative within the framework of amended exemption 7. But the
courts have divined that there is an inherent conflict between agency discovery
rules and the principles of open government as expressed in the FOIA. The
courts, instead of flexibly dealing with the conflict on a case-by-case basis as
Congress wished, have determined that it is easier to work with blanket rules.
They are telling the lawmakers that if they want more disclosure, they are going
to have to give the courts explicit directions.
1. 5 U.S.C. Ã‚Â§ 552 (supp. IV 1914) (amending 5 U.S.C. Ã‚Â§ 552 (1970))
[hereinafter referred to as FOIA]. The amendments, which were passed over
President Ford's veto in November, 1974, took effect in February, 1975.
2. Exemption 7, the applicable provision, is one of nine specific instances
where Congress has determined the government need not disclose its records. In
all other instances government records must be disclosed. 5 US.C. Ã‚Â§ 552(c)
(supp. IV 1974). Exemption 7 originally protected "investigatory files compiled
for law enforcement purposes except to the extent available by law to a private
party." 5 U.S.C. Ã‚Â§ 552 (1970).
The exemption became an impenetrable shield protecting government agencies from
disclosing any information once the following cases were decided. Center for
National Policy Review on Race and Urban Issues v. Weinberger, 502 F.2d 370
(D.C. Cir. 1974); Ditlow v. Brinegar, 494 F.2d 1073 (D.C. Cir. 1974); Aspin v.
Department of Defense, 491 F.2d 24 (D.C. Cir. 1974); Weisberg v. Department of
Justice, 489 F.2d 1195 (D.C. Cir. 1973), cert. denied, 416 U.S. 993 (1974). For
a discussion of these cases, see note 42 infra.
3. The amendment is more narrowly drawn than the original law. The exemption now
protects only records that
"[are] investigatory records compiled for law enforcement purposes, but only to
the extent that the production of such records would (A) interfere with
enforcement proceedings, (B) deprive a person of a right to a fair trial or an
impartial adjudication, (C) constitute an unwarranted invasion of privacy, (D)
disclose the identity of a confidential source and, in the case of a record
compiled by a criminal law enforcement authority in the course of a criminal
investigation, or by an agency conducting a lawful national security
intelligence investigation, confidential information furnished only by the
confidential source, (E) disclose investigative techniques and procedures, or
(F) endanger the life or physical safety of law enforcement personnel." 5 U.S.C
Ã‚Â§ 552 (supp. IV 1974).
4. See H.R. REP. No. 1497, 89th Cong., 2d Sess. 11 (1966).
5. Justice Douglas found the words of James Madison to be particularly apropos
on this subject:
"A popular Government, without popular information, or the means of acquiring
it, is but a Prologue to a Farce or a Tragedy; or, perhaps both. Knowledge will
forever govern ignorance: And a people who mean to be their own Governors, must
arm themselves with the power which knowledge gives."
EPA v. Mink, 410 U.S. 73, 110 (1972) (Douglas, J., dissenting) (quoting Letter
from James Madison to W.T. Barry (Aug. 4, 1822), reprinted in 9 THE
WRITINGS OF JAMES MADISON 103 (Hart ed. 1910)). See S. REP. No. 813, 89th
Cong., 1st Sess. 3 (1965).
6. The NLRB does not permit any pre-trial discovery. See note 19 infra.
7. 534 F.2d 484 (2d Cir.), cert. denied, 429 U.S. 834 (1976).
8. Id. at 486.
9. 407 F. supp. 498 (S.D.N.Y. 1975). Under the early amended Act cases, it was
not unusual for such stays to be granted. See Maremont Corp. v. NLRB, 91
L.R.R.M. 2804, 2813 (W.D. Okla.), rev'd on other grounds, 93 L.R.B.M.
2799 (10th Cir. 1976); Goodfriend Western Corp. v. Fuchs, 411 F. supp. 454 (D.
Mass.) rev'd on other grounds, 535 F.2d 145 (1st Cir.), cert. denied,
429 U.S. 895 (1976); Local 32, Plumbers and Pipefitters v. Irving, 91 L.R.R.M.
2513, 2515 (W.D. Wash. 1976); Bellingham Frozen Foods v. Henderson, 91 L.R.R.M.
2761, 2764 (W.D. Wash. 1976).
In light of the recent case law, however, it is unlikely that such a stay could
be obtained since there is less and less likelihood of eventual success. See
Pepsi-Cola Bottling Co. v. NLRB, 92 L.R.R.M. 3527, 3530 (D. Kan. 1976). This
does not reflect a judicial finding that the court is without power to
enjoin an NLRB proceeding pending the final outcome of a collateral FOIA case,
only that there must first be a likelihood of success. Id. at 3528.
10. 407 F. supp. at 498.
11. 534 F.2d at 484.
12. This may be described as a per se or blanket approach to 7(A) with respect
to labor board proceedings, since a mere showing that the affidavits were
gathered for a pending investigation is sufficient to bar disclosure. The
appellate court's per se approach obviated the need to review the district
court's additional findings that disclosure would not be barred by sections 7(C)
and (D). Id. at 489.
13. 29 U.S.C. Ã‚Â§Ã‚Â§ 151-168 (1970).
14. In the landmark case of Hickman v. Taylor, 329 U.S. 495 (1947), the supreme
Court recognized a qualified immunity for an attorney's work product. The Court
recently reaffirmed the Hickman doctrine when it stated that the "rule
clearly applies to memoranda prepared by an attorney in contemplation of
litigation which sets forth the attorney's theory of the case and his litigation
strategy." NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 154 (1975).
15. 534 F.2d at 491 (emphasis added). See note 106 infra.
16. NLRB v. Hardeman Garment Corp., 95 L.R.R.M. 2780 (6th Cir. 1977); Deering
Milliken Inc. v. Irving, 94 L.R.R.M. 2358 (4th Cir. 1977) (dictum); New England
Medical Center Hosp. v. NLRB, 548 F.2d 377 (1st Cir. 1976); Maremont Corp. v.
NLRB, 93 L.R.R.M. 2799 (10th Cir, 1976); Climax Molybdenum Co. v. NLRB, 539 F.2d
63 (10th Cir. 1976); Roger Au & Sons, Inc. v. NLRB, 538 F.2d 80 (3d Cir. 1976);
Goodfriend Western Corp. v. Fuchs, 535 F.2d 145 (1st Cir.), cert. denied, 429
The only circuit decision which might be considered an exception is Harvey's
Wagon Wheel v. NLRB, 550 F.2d 1139 (9th Cir. 1976). In that case, the court
affirmed the district court's holding that employee affidavits were exempt but
remanded so that the district court could consider the question of whether the
7(A) exemption could be applied to non-employee statements gathered by the NLRB.
17. 29 U.S.C. ÃƒÆ'Ã†â€™Ãƒâ€¦Ã‚Â¸ 156 (1970).
18. The Board's discovery procedures have been described as mere "notice
pleadings." See Fuselier & Moeller, NLRB Investigatory Records, 10
U. RICH. L. REV. 541, 544 (1975). This stems from the fact that the only
discovery afforded a defendant is equivalent to that which is allowed a criminal
defendant. Under the Jencks Act, 18 U.S.C. Ã‚Â§ 3500 (1970), witness' pre-trial
statements are turned over to the defense counsel only after the witness has
testified. The defense, then, may use the statements in his cross-examination.
Under the NLRB procedures a party must make a timely request for such material
for cross-examination purposes but may not keep the affidavits unless the
statements are admitted into evidence. See Manbeck Baking Co., 130
N.L.R.B. 1186, 1189-90 (1961). The Board's proceedings have been characterized
as "trial by ambush" and criticized by courts that have upheld its right to
non-disclosure under the FOIA. See, e.g., New England Medical
Center Hosp. v. NLRB, 548 F.2d 377, 383 (1st Cir. 1976).
19. 534 F.2d at 487.
20. Fuselier & Moeller, supra note 19, at 555.
21. 29 U.S.C. Ã‚Â§ 160(b) (1970). See also NLRB v. Interboro Contractors
Inc., 432 F.2d 854 (2d Cir. 1970), cert. denied, 402 U.S. 915 (1971).
22. 534 F.2d at 491.
23. Id. at 491-92.
24. H.R. REP. NO. 1497, 89th Cong., 2d Sess. 11 (1966). See also S. REP. NO.
813, 89th Cong., 1st Sess. 9 (1965).
The leading case on this point in the NLRB context was Wellman Indus., Inc. v.
NLRB, 490 F.2d 427 (4th Cir.), cert. denied, 419 U.S. 834 (1974). See
NLRB v. Clement Bros. Co., 407 F.2d 1027 (5th Cir. 1969); Barceloneta Shoe Corp.
v. Compton, 271 F. supp. 591 (D.P.R. 1967).
25. 490 F.2d 427 (4th Cir.), cert. denied, 419 U.S. 834 (1974). This case
is also favorably cited, along with the Title court's discussion of it, in NLRB
v. Hardeman Garment Corp., 557 F.2d 599 (6th Cir. 1977).
26. 490 F.2d at 431.
27. Exemption 7(D) shields governmental documents where production would:
"disclose the identity of a confidential source and, in the case of a record
compiled by a criminal law enforcement authority in the course of a criminal
investigation, or by an agency conducting a lawful national security
intelligence investigation, confidential information furnished only by the
confidential source." 5 U.S.C. Ã‚Â§ 552 (supp. IV 1974).
28. The information would be exempt from disclosure if it was gathered
during a criminal or national security investigation provided the information
was furnished by that one confidential source only. Id.
29. Id. Few cases have discussed whether the 7(D) exemption is available
to the NLRB primarily because the widespread adoption of the per se approach to
7(A) has obviated a need to reach the 7(D) question. See note 13
supra. Thus, only one circuit case has considered the applicability of 7(D)
in the NLRB context. In Deering Milliken, Inc. v. Irving, 94 L.R.R.M. 2358 (4th
Cir. 1977), the court affirmed the district court's findings in Deering
Milliken, Inc. v. Nash, 90 L.R.R.M. 3138 (D.S.C. 1975), that 7(A) and 7(D) were
unavailable to the Board. The district court found 7(D) inapplicable because the
NLRB had "established no express assurance of confidentiality ... and the nature
of the information supplied make it inconceivable that any such implied
assurance would have been desired or given." Id. at 3145. The assurance
was lacking since the underlying proceeding for which the company sought to use
the documents was a back pay proceeding. The NLRB had already established
liability and the subsequent proceeding was only to determine the remedy - how
much the company owed the injured employee. The Fourth Circuit pointedly adopted
the per se approach with respect to 7(A) (which would ordinarily preclude
reaching the 7(D) issue) but excepted back pay proceedings since disclosure
would neither harm an enforcement proceeding nor inhibit employees from giving
information to Board investigators. 94 L.R.R.M, at 2360-61.
In the earlier NLRB cases, prior to the onset of the per se approach, the
district courts disagreed on whether 7(D) was applicable. Some courts held that
7(D) was available to protect the identity of the Board's confidential sources
but not the information they provided. See, e.g., Furr's
Cafeterias, Inc. v. NLRB, 92 L.R.R.M. 3338 (N.D. Tex. 1976); Kaminer v. NLRB, 90
L.R.R.M. 2269 (S.D. Miss. 1975). Other courts found that if the Board gave no
express assurance of confidentiality to its sources, an assurance would not
be inferred. See, e.g., McDonnell Douglas Corp. v. NLRB, 92
L.R.R.M. 2072 (C.D. Cal. 1976); Title Guarantee Co. v. NLRB,.407 F. supp. 498
(S.D.N.Y. 1975). Even if the latter approach became the governing rule, an
unlikely development in light of the solicitous approach the courts have taken
toward the Board, disclosure could be easily avoided if the Board gave its
sources express assurances of confidentiality unless they were called to
testify. Such an approach would comport with the intent of the provision as
defined by Senator Hart:
"[T]he amendment protects without exception and without limitation the
identity of the informers. It protects both the identity of informers and
information which might be reasonably found to lead to such disclosure. These
may be paid informers or simply concerned citizens who give information to
enforcement agencies and desire their identity to be kept confidential."
120 CONG. REC. S17,034 (daily ed. May 30, 1974) (emphasis added).
Even where 7(D) is applied and the name and identifying details of the source
are excised, where there are less than a few sources, the substance of the
statement may well reveal the source. But even then, such knowledge will not
necessarily stop information from flowing to the NLRB. The court in Maremont
Corp. v. NLRB, 91 L.R.R.M. 2804 (W.D. Okla.), rev'd on other grounds, 93
L.R.R.M. 2779 (10th Cir. 1976), faced with such a situation found that knowledge
by the employer of the employee's statement would in no way have inhibited her
cooperation: "[H]er participation ... was a condition precedent to the Board's
issuance of an administrative complaint. Without it, the Union's charge, and
this witness' hopes of reinstatement and back pay, would have been dismissed for
lack of cooperation." Id. at 2810.
30. 490 F.2d at 431 (citing Wellford v. Harden, 444 F.2d 21 (4th Cir. 1971)).
The words "in court" have not been taken literally by the courts in interpreting
exemption 7. The assumption has been that "in court" applies to administrative
proceedings as well as judicial proceedings. The use of the qualifying words,
"in court," stems from the Senate Report to the original FOIA, which read in
part: "These [investigatory files] are the files prepared by Government agencies
to prosecute law violators. The disclosure of such files, except to the
extent they are available by law to a private party, could harm the Government's
case in court." (Emphasis added.) S. REP. NO. 813, 89th Cong., 1st Sess.
9 (1965). In Wellman, the court harmonized the above language with the
more carefully drawn House Report to reach the result that "law violators" did
not restrict the scope of an exemption 7 to criminal cases by stating that
"[t]his exemption covers investigatory files related to enforcement of all kinds
of laws, labor and securities laws as well as criminal laws. This would include
files prepared in connection with related Government litigation and
adjudicative proceedings." H.R. REP. NO. 1497, 89th Cong., 2d Sess. 11,
reprinted in  U.S. CODE CONG, & AD. NEWS 2428 (emphasis added). This
construction is in harmony with the earliest FOIA cases which assumed that the
Act was applicable to administrative proceedings as well as judicial
proceedings. See, e.g., Barceloneta Shoe Corp. v. Compton, 271 F.
supp. 591 (D.P.R. 1967). This view has never been seriously challenged.
31. 444 F.2d 21 (4th Cir. 1971).
32. No such ambiguity existed in New England Medical Center Hosp. v. NLRB, 548
F.2d 377 (1st Cir. 1976).
Here the court was faced with an FOIA request by the hospital-employer, the
defendant in a pending NLRB proceeding, for statements from supervisory
employees (taken in the presence of the hospital's personnel director) and
non-employees. The earlier NLRB-FOIA circuit cases had dealt with employer
attempts to pry employee statements from the Board. The court conceded that
disclosure in advance of the pending proceeding would afford the employer no
opportunity to exercise "leverage" over its employees. Id. at 382. Yet,
without even discussing whether prior law applies in "open" cases, the court
held that "exemption 7(A) applies whenever disclosure would interfere with an
enforcement proceeding, and it is difficult to conceive of a greater
interference than one which would involve the courts in arbitrating the Board's
control of what documents to retain and what to surrender immediately prior to
an enforcement proceeding." Id. at 383. New England Medical Center
Hospital took the per se line of cases one step further by emphasizing the
second prong of the Wellman approach - that any disclosure which would
benefit a person by aiding in the preparation of a case against the agency would
This rationale even provided the court with justification for withholding closed
files which were "closely related" to pending proceedings against the hospital.
Id. at 386. The closed files involved the Board's dismissal of unfair labor
practice charges against the hospital brought by two other employees.
33. The late Senator from Michigan introduced and explained the amendment on the
floor of the Senate. He was later a member of the Conference Committee that
revised the amendment.
The court quoted a statement from Senator Hart in which he explained that the
original Act's legislative history suggests that Congress' purpose in enacting
the 7(A) exemption was:
"to prevent harm to the Government's case in court by not allowing an opposing
litigant earlier or greater access to investigative files than he would
"Recently, the courts have interpreted the seventh exemption to the Freedom of
Information Act to be applied whenever an agency can show that the document
sought is an investigatory file compiled for law enforcement purposes - a stone
wall at that point. The court would have the exemption applied without the need
of the agency to show why the disclosure of the particular document should not
"That, we suggest, is not consistent with the intent of Congress when it passed
this basic act in 1966. Then, as now, we recognized the need for law enforcement
agencies to be able to keep their records and files confidential where a
disclosure would interfere with any one of a number of specific interests, each
of which is set forth in the amendment that a number of us are offering."
534 F.2d at 490 (quoting 120 CONG. REC. S17,033-34 (daily ed. May 30, 1974)).
Another of the Senator's statements, while not referred to by the court, is also
"This amendment is by no means a radical departure from existing case law under
the Freedom of Information Act. Until a year ago the courts looked to the
reasons for the seventh exemption before allowing the withholding of documents.
That approach is in keeping with the intent of Congress and by this amendment we
wish to reinstall it as the basis for access to information."
120 CONG. REC. S17,033-34 (daily ed. May 30, 1974).
34. 460 F.2d 813 (2d Cir. 1972).
35. See 534 F.2d at 490. The court correctly notes that Frankel
was criticized in the Report of the Committee on Federal Legislation of the
Association of the Bar of the City of New York. That report reads in pertinent
"Other jurists [as opposed to the Frankel court] ... have reached
the conclusion that Exemption 7 was intended only to protect against premature
disclosure in a pending investigation, and that once the investigation is
completed and all reasonably foreseeable administrative and judicial proceedings
concluded, the files must be disclosed. We agree with this view."
120 CONG. REC. S17,035 (daily ed. May 30, 1974) (inserted by Senator Kennedy)
(emphasis added). The "other" cases the report apparently was referring to
include Wellford v. Hardin, 444 F.2d 21 (4th Cir. 1971) and Bristol-Myers v.
FTC, 424 F.2d 935 (D.C. Cir. 1970), cert. denied, 400 U.S. 824 (1970).
For a good discussion of these cases see Note, The Investigatory Files
Exemption of the FOIA: The D.C. Circuit Abandons Bristol-Myers, 42 GEO.
WASH. L. REV. 869 (1974) [hereinafter cited as Investigatory Files].
However, the Second Circuit was apparently in error in its comment that Senator
Hart's amendment was suggested by the Administrative Law Section of the American
Bar Association "following upon" the report of the City Bar, 534 F.2d at 490.
The day the amendment was introduced, Senator Kennedy, during the floor debate,
noted that the City Bar's report was issued just the week before and inserted
into the record the proposal of the Administrative Law Section of the ABA, which
formed the basis of Senator Hares amendment, 120 CONG. REC. S17,035-36 (daily
ed. May 30, 1974). Judging from the dates reflected in the Congressional Record,
the similarity between the ABA's June 1973 proposal and the May 1974 City Bar
proposal, it appears the Second Circuit was incorrect in stating that the ABA
proposal "followed upon" the report of the City Bar. This inaccuracy is
significant in light of the court's assertion, based on the City Bar's report,
that, "It was with ... [the] particular problem of unavailability of closed
files in mind that the 1974 amendments to Exemption 7 were adopted." 534 F.2d at
490. Frankel held that the closed investigative files remained closed
forever. It was later relied upon in two of the four cases Congress sought to
specifically overrule. See note 42 infra.
36. 534 F.2d at 490.
37. The following colloquy on the floor of the Senate names the four cases the
sponsors of exemption 7 sought to specifically overrule:
"Senator Kennedy: Does the Senator's amendment in effect override the court
decisions in the court of appeals on the Weisberg against United States; Aspin
against Department of Defense; Ditlow against Brinegar; and National Center
"As I understand it, the holdings in those particular cases are of the greatest
concern to the Senator from Michigan. As I interpret it, the impact and effect
of his amendment would be to override those particular decisions. Is that not
"Senator Hart: The Senator from Massachusetts is correct. That is its purpose.
That was the purpose of Congress in 1966, we thought, when we enacted this.
Until about 9 or 12 months ago, the courts consistently had approached it on a
balancing basis, which is exactly what the amendment seeks to do."
120 CONG. REC. S17,039 (daily ed. May 30, 1974).
38. One was Weisberg v. Department of Justice, 489 F.2d 1195 (D.C. Cir. 1973),
cert. denied, 416 U.S. 993 (1974), where the court held that the FBI's work
notes and raw data in arriving at the results of the spectrographic tests on
bullet evidence with respect to the assassination of President Kennedy were
exempt. The court concluded that once a determination is made that requested
material is part of an investigative file compiled for law enforcement purposes,
the material is exempt. Id. at 1202. The court relied upon Frankel
at the expense of Bristol-Myers v. FTC, 424 F.2d 935 (D.C. Cir. 1974). For a
discussion of the Bristol-Myers case, see text accompanying notes 99-102
But the Weisberg court did not speak directly to the issue of closed
files as did the court in Frankel. That issue was addressed in Aspin v.
Department of Defense, 491 F.2d 24 (D.C. Cir. 1974). In finding the Peers
Commission report into the Army investigation of the My Lai massacre exempt, the
Aspin court ruled that closed files remain closed. But the two other cases
specifically mentioned by Hart did not deal with the Frankel issue and
yet were of great enough concern to Senator Hart for him to have included them
on his list.
In Ditlow v. Brinegar, 494 F.2d 1073 (D.C. Cir. 1974), the district court had
concluded that the sought material - correspondence between the National Highway
Traffic Safety Administration and automobile manufacturers in connection with a
pending safety defect investigation - "could conceivably" lead to an enforcement
proceeding. Id. at 1074. The issue was whether, despite the prospect of a law
enforcement proceeding, disclosure would be likely to injure such a proceeding.
But such a consideration was found to be irrelevant since the court found
Weisberg to be controlling. In Center for National Policy Review on Race and
Urban Issues v. Weinberger, 502 F.2d 370 (D.C. Cir. 1974), the issue was whether
"open and active" files involving agency review of public school segregation and
discrimination practices in the north could be subject to disclosure. The
question asked was whether the files were investigatory in nature and compiled
for law enforcement purposes. Once there was an affirmative answer, the per se
Weisberg standard was applied.
39. The sponsors seemed to have been particularly upset at the "wooden and
mechanical" methods the courts had devised for exemption 7. See, e.g.,
120 CONG. REC. S17,034-36 (daily ed. May 30, 1974) (remarks of Senator Kennedy).
The following also illustrates this broad concern:
"Our concern is that, under the interpretation by the courts in recent cases,
the seventh exemption will deny public access to information even previously
available. For example, we fear that such information as meat inspection
reports, civil rights compliance information, and medicare nursing home reports
will be considered exempt under the seventh exemption."
120 CONG. REC. S17,033 (daily ed. May 30, 1974) (remarks of Senator Hart).
40. It is not entirely accurate to state that 7(A) was designed to overrule
those cases. Rather, the legislative history suggests that the redrafted
exemption in its entirety, rather than 7(A) specifically, was designed for this
41. 534 F.2d at 492 (emphasis added in part).
42. The court asserted that "[i]t was with this particular problem of
unavailability of closed files in mind that the 1974 amendments to Exemption 7
were adopted." 534 F.2d at 490. See note 40 supra and accompanying text.
43. 539 F.2d 63 (10th Cir. 1976). See New England Medical Center Hosp. v.
NLRB, 548 F.2d 377 (1st Cir. 1976) where the court commented that:
It was the automatic continuing exemption of records even after a file had
become totally inactive that led Congress to amend exemption 7. An agency policy
of denying to a suspected violator access to its case pending completion of
administrative: and judicial proceedings is quite different from denying
documents to the public indefinitely or "forever."
Id. at 384 (citations omitted).
44. See note 2 supra.
45. 539 F.2d at 64. The court cited Wellman Indus. Inc. v. NLRB, 490 F.2d (4th
Cir.), cert. denied, 419 U.S. 834 (1974); Wellford v. Harden, 444 F.2d 21
(4th Cir. 1971); and Williams v. IRS, 345 F. supp. 591 (D. Del. 1972), aff'd
per curiam, 479 F.2d 317 (3d Cir.), cert. denied, 414 U.S. 1024
(1973) to support this proposition.
46. 534 F.2d at 442 (citing Dep't of Justice, Att'y Gen. Memorandum on the 1974
Amendments to the Freedom of Information Act (1975)).
47. After citing to the Attorney General's remarks, the court stated: "We think
that these remarks are exactly applicable to cases involving pending unfair
labor practice proceedings." 534 F.2d at 492.
48. See K.C. DAVIS, ADMINISTRATIVE LAW TREATISE 3A.31 (supp, 1970).
See also INVESTIGATORY FILES, supra note 39.
49. H.R. REP. NO. 876, 93d Cong., 2d Sess., reprinted in  U.S. CODE
CONG. & AD. NEWS 6267, 6275.
50. Among the decisions that relied on the Title district court opinion
in reaching the conclusion that 7(A) could provide no blanket protection for
pending NLRB proceedings were NLRB v. Hardeman Garment Corp., 406 F. supp. 510
(N.D. Tenn. 1976), rev'd, 577 F.2d 599 (6th Cir. 1977); McDonnell Douglas
Corp. v. NLRB, 92 L.R.R.M. 2072 (C.D. Cal. 1976); Maremont Corp. v. NLRB, 91
L.R.R.M. 2804 (W.D. Okla.), rev'd, 93 L.R.R.M. 2799 (10th Cir. 1976);
Local 32, Plumbers and Pipefitters v. Irving, 91 L.R.R.M. 2513 (W.D. Wash.
1976); Cessna Aircraft Co. v. NLRB, 405 F. supp. 1042 (D. Kan. 1975), rev'd,
542 F.2d 834 (10th Cir. 1976).
Other courts deciding the issue in the NLRB context reached the same conclusion
prior to the Title district court opinion. See Bellingham Frozen
Foods v. Henderson, 91 L.R,R.M. 2761 (W.D. Wash. 1976); Deering Milliken, Inc.
v. Nash, 90 L.R.R.M. 3138 (D.S.C. 1975).
51. See note 17 supra.
52. The statute reads in pertinent part: "On complaint...the court shall
determine ... whether such records or any part thereof shall be withheld under
any of the exemptions set forth in ... this section, and the burden is on the
agency to sustain its action." 5 U.S.C. Ã‚Â§ 552(a)(4)(B) (supp. IV 1974).
53. 407 F. supp. at 504.
54. Id. See note 35 supra.
55. In illustrating how the exemption would work, the Senator said:
This would apply whenever the Government's case in court...would be harmed
by the premature release of evidence or information not in the possession of
known or potential defendants. This would apply also where the agency could show
that the disclosure of the information would substantially harm such
proceedings by impeding any necessary investigation before the proceeding. In
determining whether or not the information to be released will interfere with a
law enforcement proceeding it is only relevant to make such determination
in the context of the particular enforcement proceeding.
120 CONG. REC. S17,034 (daily ed. May 30, 1974) (emphasis added). See also the
remarks of Congressman Reid which indicate that the Government must "specify
some harm" and that the exemption does not give "all law enforcement matters a
blanket exemption." 120 CONG. REC. 36,626 (1974).
56. See note 35 supra.
57. Senator Strom Thurmond in opposing the amendment stated:
"Another objectionable area of H.R. 12471 deals with the compulsory disclosure
of the confidential investigatory files of the Federal Bureau of Investigation
and other law enforcement agencies.
"Under this bill these investigatory files would be exempt from disclosure only
if the Government could prove that the release would cause harm to certain
public or private interests. The President objected to this portion of H.R.
12471, since it would be almost impossible for the Government to establish in
every instance that harm would result from a release of information.
"Instead, the President suggested that investigatory records of the Federal
Bureau of Investigation and other law enforcement agencies should be exempt from
the act if there is a 'substantial possibility' of harm to any public or private
120 CONG. REC. 36,877 (1974) (remarks of Senator Thurmond) (emphasis added).
Senator Hruska also spoke against the amendments, stating:
"If the agency believes that information must be withheld from the public, it
must prove to a court line-by-line that disclosure would disclose the
identity of a source of confidential information furnished by him, would
impair the investigation or would constitute an invasion of personal
"...[I]t is extremely difficult if not impossible to prove that information,
if disclosed, would invade a person's personal privacy or would impair the
120 CONG. REC. 36,873 (1974) (emphasis added).
58. In Deering Milliken, Inc. v. Nash, 90 L.R.R.M. 3138 (D.S.C. 1975), the court
seemed to follow congressional intent more closely than the circuit courts have
done. It stated:
"[T]he NLRB contends that 7(A) exempts from production the documents in question
here simply because they would not be discoverable under the current procedures
employed in NLRB hearings. Whatever the policy underlying the Old Exemption (7)
may have been, or how it was construed by the courts, it is totally inconsistent
with the policy of the 1974 amendments to exempt NLRB files solely because the
Board's own regulations would not allow their discovery in an NLRB proceeding.
"Since the documents in this case would not be produced under normal NLRB
proceedings, the court is urged to infer from the fact alone that their
production under the FOIA Act would be harmful to and interfere with an
enforcement proceeding...Such a conclusion, however, would represent the very
sort of wooden and mechanical application of the FOIA Act which Congress sought
to eliminate when it enacted the 1974 amendments. This court's responsibility is
to determine whether the NLRB has proved the applicability of the
exemptions it claims, not to rubber-stamp its approval of agency-imposed
classifications and regulations. The court has not taken and will not take this
Id. at 3143-44.
59. The statute states that "the court... may examine the contents of such
agency records in camera to determine whether such records or any part thereof
shall be withheld..." 5 U.S.C. Ã‚Â§ 552(a)(4)(B) (supp. IV 1974).
60. 407 F. supp. at 505.
61. See Maremont Corp. v. NLRB, 91 L.R.R.M. 2804, 2810 n.12 (W.D. Okla.),
rev'd, 93 L.R.R.M. 2799 (10th Cir. 1976).
62. 5 U.S.C. Ã‚Â§ 552(a)(3) (supp. IV 1974).
63. NLRB v. Sears, Roebuck & Co., 421 U.S. 132 (1975).
64. Id. at 143 n.10 (emphasis added).
65. See NLRB v. Hardeman Garment Corp., 406 F supp. 510, 514 (W.D. Tenn.
1976), rev'd, 557 F.2d 599 (6th Cir. 1977); Maremont Corp. v. NLRB, 91
L.R.R.M. 2804, 2807 (W.D. Okla.), rev'd, 93 L.R.R.M. 2799 (10th Cir,
1976); Cessna Aircraft Co. v. NLRB, 405 F. supp. 1042 (D. Kan. 1975), rev'd,
542 F.2d 834 (10th Cir. 1976); Deering Milliken, Inc. v. Nash, 90 L.R.R.M. 3138,
3141 (D.S.C. 1975), aff'd in part, rev'd in part sub nom. Deering
Milliken, Inc. v, Irving, 94 L.R.R.M. 2358 (4th Cir. 1977). Cf. Chamberlain v.
Alexander, 419 F. supp. 235, 238 (S.D. Ala. 1976) (IRS-FOIA case).
66. See text accompanying note 23 supra.
67. 534 F.2d at 492.
68. Those that have been reversed include NLRB v. Hardeman Garment Corp., 406 F.
supp. 510 (W.D. Tenn, 1976), rev'd, 557 F.2d 599 (6th Cir. 1977);
Goodfriend Western Corp. v. Fuchs, 411 F. supp. 454 (D. Mass. 1976), rev'd,,
535 F.2d 145 (1st Cir.), cert. denied, 429 U.S. 895 (1976); Maremont
Corp. v. NLRB, 91 L.R.R.M. 2804 (W.D. Okla.), rev'd, 93 L.R.R.M. 2799
(10th Cit. 1976); Cessna Aircraft Co. v. NLRB, 405 F. supp. 1042 (D. Kan. 1975),
rev'd, 542 F.2d 834 (10th Cir. 1976).
Those that have not been reversed include McDonnell Douglas Corp. v. NLRB, 92
L.R.R.M. 2453 (C.D. Cal. 1976); St. Elizabeth's Hosp. v. NLRB, 91 L.R.R.M. 2453
(N.D. 1976); Bellingham Frozen Foods v. Henderson, 91 L.R.R.M. 2761 (W.D. Wash.
1976); Deering Milliken, Inc. v. Nash, 90 L.R.R.M. 3138 (D.S.C. 1975), aff'd
in part, rev'd in part sub nom. Deering Milliken, Inc. v. Irving, 94
L.R.R.M. 2358 (4th Cir. 1977).
69. The tide has turned against cases such as Bellingham Frozen Foods v.
Henderson, 91 L.R.R.M. 2761 (W.D. Wash. 1976), which in part relied on the
rejected district court opinion in Title. Id. at 2763. Similarly,
the district court cases that the McDonnell court relied upon have either been
rejected, see Title Guarantee Co. v. NLRB, 407 F. supp. 498 (S.D.N.Y. 1975), 534
F.2d 484 (2d Cir.), cert. denied, 429 U.S. 834 (1976); NLRB v. Hardeman
Garment Corp., 406 F. supp. 510 (N.D. Tenn. 1976), rev'd, 557 F.2d 599
(6th Cir. 1977); Cessna Aircraft Co. v. NLRB, 405 F. supp. 1042 (D. Kan. 1975),
rev'd, 542 F.2d 834 (10th Cir. 1976); or severely circumscribed, see Deering
Milliken, Inc. v. Nash, 90 L.R.R.M. 3138 (D.S.C. 1975), aff'd in part, rev'd
in part sub nom. Deering Milliken, Inc. v. Irving, 94 L.R.R.M. 2358 (4th
70. The court formally limited its holding with the following language:
"We feel it unnecessary to make the broad determination that any investigative
information obtained in connection with a pending enforcement proceeding is per
se nondisclosable...[W]e are forced to conclude that statements of employees,
and their representatives, obtained in connection with unfair labor practice
enforcement proceedings are not subject to disclosure as a result of Exemption
7(A). So saying, we do not intend our comments to apply broadly to
administrative contexts other than unfair labor practice enforcement proceedings
before the NLRB."
534 F.2d at 491-92.
71. See text accompanying notes 33-35 supra, regarding the discussion of
the Wellman and Wellford cases and whether the prior law lives on.
The court had also relied on the pre-amendment case of Williams v. IRS, 345 F.
supp. 591 (D. Del. 1972), aff'd per curiam, 479 F.2d 317 (3d Cir.),
cert. denied, 414 U.S. 1024 (1973) which held that taxpayers were not
entitled under the FOIA to investigatory files utilized by the IRS to determine
tax liability which the plaintiff sought to aid themselves in their litigation
with the IRS in Tax Court.
72. See text accompanying note 38 supra.
73. See, e.g., United States v. Murdock, 548 F.2d 599 (5th Cir.
1977); National Public Radio v. Bell, 431 F. supp. 509 (D.D.C. 1977); Mitsubishi
Electric Corp. v. United States Dep't of justice  TRADE CAS. (CCH) P.
61,356 (D.D.C.); ITT Continental Baking Co., Inc. v. FTC,  TRADE CAS.
(CCH) P. 60,968 (D.D.C.); Bristol-Myers Co. v. FTC,  TRADE CAS. (CCH) P.
70,650 (D.D.C.); Bryant v. IRS, 2 U.S. Tax Cas. 9613 (D. Me. 1976).
74. 548 F.2d 599 (5th Cir. 1977).
75. It cited the same Congressional language which the Wellman court
found persuasive: the Act was not designed to give a litigant "...earlier or
greater access to investigatory files than he would have directly in such
litigation or proceeding."
548 F.2d at 601.
76. Fruehauf Corp. v. Thornton, 507 F.2d 1253 (6th Cir. 1974). There the court
refused to stay a district court criminal proceeding until compliance with the
district court's order directing the IRS to disclose certain documents could be
77. 548 F.2d at 602.
78. 2 U.S. Tax Cas. 9474 (N.D. Ill. .1977).
79. Id. at 87,539.
81. Id. at 87,542.
82. See note 77 supra.
83. No. 75-1221 (D.D.C., filed Dec. 23, 1975). See also Gifford-Hill &
Co., Inc. v. FTC,  TRADE CAS. (CCH) P. 60,674 (D.D.C. 1976); Tax Reform
Research v. IRS, 419 F. supp. 415 (D.D.C. 1976).
84. No. 75-1221, slip op. at 2.
85. Id. (Emphasis added.)
86. No. 4-74 Civ. 412 (D. Minn., filed Oct. 16, 1975). Cf. Mobil Oil
Corp. v. FTC, 406 F. supp. 305, 313 (S.D.N.Y. 1976) (where the court rejected
the argument that the pendency of law enforcement proceedings in and of itself
entitles an agency to protection under exemption 7).
87. No. 4-74-Civ. 412, slip op. at 1.
88. Id. at 4-5.
89. Id. at 5. The court's reasoning was similar to that of the district court in
Deering Milliken, Inc. v. Nash, 90 L.R.R.M. 3138 (D.S.C. 1975). See note 62
90. No. 4-74 Civ. 412, slip op. at 4.
91. The court explained that since the amended statute had been so radically
altered, "pre-existing case law relied upon by the FTC cannot be readily
applied." No. 4-74 Civ. 412, slip op. at 5.
92. In support of its contention that disclosure of the names will in fact
interfere with enforcement proceedings, the FTC submitted an affidavit signed by
two agency attorneys claiming that disclosure would:
"(1) [I]dentify for plaintiffs those individuals whom Commission counsel have
deemed sufficiently important to locate, or have...communicated with;
"(2) [F]acilitate contact with such individuals by plaintiffs [and] based on our
experience...individuals contacted...become reluctant to cooperate fully with
"(3) [C]ause reluctance of individuals to cooperate...preventing complaint
counsel from developing all of the necessary facts in the ongoing pretrial
investigation, and from presenting the strongest possible case in the
"(4) [R]eveal the scope and extent of...the investigation to date as well as
trial strategy and theories of the case by enabling plaintiffs to identify such
persons contacted...and possibly to construct a pattern from those contacts;
"(5) [R]eveal complaint counsel's trial strategy and theories...because in
discussing the allegation...with certain of those individuals it became
necessary...to reveal such information...to enable them to contribute
effectively to...[the] preparation of the Commission's case."
Id. at 6.
95. Id. at 7. In Maremont Corp. v. NLRB, 91 L.R.R.M. 2804 (W.D. Okla.),
rev'd, 93 L.R.R.M. 2799 (10th Cir. 1976), the court expressed a similar
"Defendant (NLRB) should not be able to prevail simply by virtue of a
cross-examination of defense weakened by lack of foreknowledge. If defendant is
to succeed in its administrative hearings, it should be because of the strengths
of its own case, not the Board-fostered weakness of its opponents. Defendant's
position here runs afoul of the observation of the supreme Court to the effect
that the interests of Government prosecutors should not be that they 'shall win
a case, but that justice will be done.' "
Id. at 2810 (citation omitted).
96. No. 4-74 Civ. 412, slip op. at 8.
98. See note 28 supra.
99. No. 4-74 Civ. 412, slip op. at 8. It seems that the court erred in dealing
with these two claims together since the legislative history clearly indicates
that 7(A) can be employed by the courts whenever "disclosure of the information
would substantially harm such proceeding by impeding any necessary investigation
before the proceeding." 120 CONG. REC. S17,034 (daily ed. May 30, 1974) (remarks
of Senator Hart). Nevertheless, had the court framed the issue correctly under
7(A) it would have reached the same result since it had stated earlier that the
proceedings would not be injured if the plaintiffs contacted the FTC sources.
Moreover, despite this minor error, it is the overall thrust of the opinion in
contrast with the prevailing per se circuit view that is significant.
100. E.g., Title Guarantee Co. v. NLRB, 407 F. supp. 498 (S.D.N.Y. 1975),
rev'd, 534 F.2d 484 (2d Cir. 1976); Maremont Corp. v. NLRB, 91 L.R.R.M. 2804
(W.D. Okla.), rev'd, 93 L.R.R.M. 2799 (10th Cir. 1976).
101. 120 CONG. REC. S17,038 (daily ed, May 30,1974).
102. See Temple-Eastex, Inc. v. NLRB, 410 F. supp. 183 (E.D. Tex. 1976),
where the court distinguished between statements favorable to an employer and
those that were unfavorable and ordered disclosure of the former. This
distinction is irrelevant under the per se approach where the key issue is
whether the agency's discovery rules permit such disclosure. If not, then
interference is present. To allow disclosure would strengthen the defendant's
case. This is consistent with the per se view that it is up to Congress to
change inequitable discovery rules. See, e.g., New England Medical
Center Hosp. v. NLRB, 548 F.2d 377 (1st Cir. 1976).
103. 424 F.2d 935 (D.C. Cir. 1970).
104. A rule-making proceeding is conducted by an agency for the purpose of
legislating industry-wide regulations. A law enforcement proceeding, on the
other hand, is aimed at one or more defendants for violation of an agency
105. 424 F.2d at 939.
107. See note 36 supra and accompanying text.
108. See, e.g., New England Medical Center Hosp, v. NLRB, 548 F.2d
377 (1st Cir. 1976); National Public Radio v. Bell, 431 F. supp. 509 (D.D.C.
1977); Kaminer v. NLRB, 90 L.R.R.M. 2269 (S.D. Miss. 1975) (7(A) does not obtain
once investigation is closed); Poss v. NLRB, 91 L.R.R.M. 2232 (D.D.C. 1975)
(7(A) inapplicable where Board investigated a complaint and decided not to issue
an unfair labor practice complaint whereupon complaining employee brought FOIA
suit to determine the basis for the NLRR decision). But see Rice & Co. v.
Nash, (E.D. Mich. 1976) (where court mistakenly took the NLRB-FOIA circuit cases
to mean 7(A) applied even after the conclusion of the unfair labor practice
hearings in question).
109. 534 F.2d at 490 (citing Committee on Federal Legislation of the Association
of the Bar of the City of New York) (emphasis added).
110. This seems to be the logical result of the Title view. See,
e.g., Goodfriend Western Corp. v. Fuchs, 535 F.2d 145 (1st Cir.), cert.
denied, 429 U.S. 895 (1976), where the court was not persuaded by the
plaintiff's attempt to distinguish that case from Title on the grounds
that the plaintiff was only seeking affidavits of witnesses already scheduled to
testify within 24 hours. The court commented that:
"[w]hile it may well be that the circumstances minimize the possible
interference with the pending proceedings, the present order is nonetheless
controlled by the reasoning in Title Guarantee. Even in this case we
cannot rule out all possibility that the company may 'be able to use
disclosure to learn the Board's case in advance and frustrate the
535 F.2d at 147 (emphasis added).
111. Such material could include documents and statements favoring the
plaintiff's position. These are exempt under the Title line of cases.
112. 92 L.R.R.M. 3497 (W.D. Tenn. 1976).
113. Id. at 3499.
114. 548 F.2d 377 (1st Cir. 1976).
115. Id. at 386-87. The legislative history and clear intent of Congress
would seem to preclude any such argument even by those who have taken a narrow
view of the amended exemption. The fact that the Board even made the argument
illustrates the extent to which it has gone in trying to defeat the express
intent of Congress in legislating for more open government. Indeed, widespread
adoption of that argument would castrate the amended exemption.
117. Id. at 386.
118. Id. For a fuller discussion of this case, see note 33 supra.
119. No. 75-1221 (D.D.C., filed Dec. 23, 1976).
120. 431 F. supp. 509 (D.D.C. 1977).
121. Id. at 514.
123. Id. at 514-15.
124. NLRB v. Sears, Roebuck & Co., 421 U.S. 132 (1974). See text accompanying
note 68 supra.
125. Kanter v. IRS, 2 U.S. Tax Cas. 871,539 n.10.
126. Deering Milliken, Inc. v. Nash, 90 L.R.R.M. 3138 (D.S.C. 1975), is an
extreme example. That FOIA case grew out of an NLRB back pay proceeding
initiated in 1975 arising from unfair labor practice charges filed by the Board
over the closing of the Darlington Manufacturing Company's textile plant in
1956. The Board had successfully charged that the Darlington plant was closed to
discourage union organizing at the company's other plants. In the meantime, the
litigation stemming from that original charge had spanned more than 19 years.
Id. at 3139.
127. An example of this analysis occurred in Waterproof Workers, Local 30 v.
NLRB, 408 F. supp. 520 (E.D. Pa. 1976). There the court did not predicate a
finding of 7(A) interference on a blanket rule. It based its holding on the
"factual setting of this case" in which there had been "numerous and
repeated acts of violence allegedly committed by agents and representatives of
[the] Union," leading the court to conclude that: "It is fair to infer...that to
reveal affidavits containing such information in advance of hearing creates a
substantial danger that such witnesses may be intimidated, or that they may be
otherwise caused to become reluctant to testify." Id. at 526.
128. 120 CONG. REC. S17,034 (daily ed. May 30, 1974).
129. 5 U.S.C. Ã‚Â§ 552(a)(4)(B) (supp. IV 1974).
130. Goodfriend Western Corp. v. Fuchs, 411 F. supp. 454 (D. Mass.), rev'd,
535 F.2d 145 (1st Cir.), cert. denied, 429 U.S. 895 (1976).
131. See 120 CONG. REC. S17,034 (daily ed. May 30, 1974).
132. See 120 CONG. REC. 36,877 (1974).
133. See text accompanying notes 58-60 supra.
134. 120 CONG. REC. S17,034 (daily ed. May 30, 1974).
136. See, e.g., id.
138. See, e.g., Weisberg v. Department of Justice, 489 F.2d 1195,
1205 (D.C. Cir. 1973), cert. denied, 416 U.S, 993 (1974).