holding that agency’s “transitory possession” of shipping labels, limited to “one-time, attach-and-post use,” did not constitute “control” subjecting the labels to FOIA
How later courts described this case
- holding that agency’s “transitory possession” of shipping labels, limited to “one-time, attach-and-post use,” did not constitute “control” subjecting the labels to FOIA
- “transitory possession of the labels, limited to the one-time, attach- and-post use required by the court order, did not constitute ‘control’ of the labels by the Board[.]”
Written by the judges who cited it.
The opinion
WALD, Circuit Judge,
dissenting:
I believe the address labels are agency records, although quite possibly eligible for withholding under one of the FOIA exemptions originally cited by the National Mediation Board. The government itself argues that they meet the “control” test for agency records, see Goland v. CIA, 607 F.2d 339, 347 (D.C.Cir.1978), but say that they are not records for FOIA purposes because they have not been “preserved or [are not] appropriate for preservation”. Statement of the United States of America in Response to the Court’s Order of April 25, 1983 at 15, 23-26. I am not convinced by that reasoning nor by the district court’s post-order assertions that in authorizing the Board to order the labels from TWA, it meant to control their use to a one-time-only mailing. These labels were received by the Board *1497 (who had to invoke the aid of the court to get them) in order to permit it to fulfill its statutory function of conducting representation elections. See Kissinger v. Reporters Committee for Freedom of the Press, 445 U.S. 136, 157 (1980). Simply because the Board, for its own reasons, chose not to make a permanent copy of the addresses does not deprive them of their record status while in the hands of the agency. I therefore dissent from the panel’s conclusion they are not agency records.