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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.

TITLE GUARANTEE

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) interference.12

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 the Title rationale has been applied consistently, the Second Circuit's reasoning is essential to determining whether congressional intent is being effectuated.

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 interpretation.

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 court."30 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 redrafted.

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 circuits.51

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 discovery rules.58

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 hold.73

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 Procedure.77

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 commented:

"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 exempt."85

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 FOIA suit.

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 procedures.

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 stated:

"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 persons.

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 and historians.

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 proceedings."128

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.

CONCLUSION

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.


FOOTNOTES

1. 5 U.S.C. § 552 (supp. IV 1914) (amending 5 U.S.C. § 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. § 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. § 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 § 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. §§ 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 U.S. 895(1976).

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. ÃÆ'ƒÅ¸ 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. § 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. § 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. § 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 [1966] 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 constitute interference.

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 otherwise have.

"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 be made.

"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 pertinent:

"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 part:

"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 against Weinberger?

"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 correct?

"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 infra.

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 purpose.

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 [1975] 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. § 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 interest."

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 privacy.

"...[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 investigation."

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 responsibility lightly."

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. § 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. § 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 Cir. 1977).

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 [1977] TRADE CAS. (CCH) P. 61,356 (D.D.C.); ITT Continental Baking Co., Inc. v. FTC, [1976] TRADE CAS. (CCH) P. 60,968 (D.D.C.); Bristol-Myers Co. v. FTC, [1963] 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 obtained.

77. 548 F.2d at 602.

78. 2 U.S. Tax Cas. 9474 (N.D. Ill. .1977).

79. Id. at 87,539.

80. Id.

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, [1975] 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 supra.

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 the commission;

"(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 administrative proceeding;

"(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.

93. Id.

94. Id.

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 sentiment:

"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.

97. Id.

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 regulation.

105. 424 F.2d at 939.

106. Id.

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 proceedings...' "

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.

116. Id.

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.

122. Id.

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. § 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).

135. Id.

136. See, e.g., id.

137. 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).