Amicus Curiae Brief — NLRB v. Sears, Roebuck & Co.

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ORR IS aRAIIN R A PREG IE CLEA: RM RYERSS TAR REE PD eee. 7

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Ee EOP RTS Cs Ln

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“SUPREME COUNT: os =

No. 73-1233 . a EE

IN THE

bern a Ht

OCTOBER TERM, 1974

MICHAEL RODAK, R.,

NATIONAL LABOR RELATIONS BOARD AND

PETER G. NASH, GENERAL COUNSEL,

a Petitioners, .

"SEARS, ROEBUCK AND COMPANY,

Respondent.

On Writ of Certiorari To The United States Court of

Appeals for The District of Columbia Circuit

BRIEF FOR AMICUS CURIAE FREEDOM

OF INFORMATION CLEARINGHOUSE

(

ALAN B. MORRISON

LARRY P. ELLSWORTH

2000 F Street, N.W.

Suite 700

Washington, D.C. . 20036 -.

(202) 785-3704

ASS DUPLICATORS, INC.—1732 Bye Strest, 0.01.—Weshigiinen, O.C—200-0837

(i)

TABLE OF CONTENTS

INTEREST OF THE AMICUS CURIAE

STATEMENT .

SUMMARY OF ARGUMENT

ARGUMENT .

Il.

Neither the exemption 2 nor the exemp-

tion 7 issues raised by the General Counsel

are appropriate for Supreme Court considera-

tion in view of the special circumstances of

this case

Advice and appeals memoranda are not

within the scope of exemption 5 .

A. The legislative history demonstrates

that exemption 5 protects only legal

and policy deliberations whose pre-

mature disclosure would impede the

consultative functions of government,

and not agency decisions or directives.

B. The government’s discovery privilege pro-

tects only certain legal and policymaking

deliberations

C. Advice and appeals memoranda are agency

law which must be disclosed

1. Appeals memoranda are “Final

Opinions” or “Orders,” “Made in the

Adjudication of Cases”

Page

ELE LEW L DELI BELL IE LILY, CEL ATE SAL HTN OES PIET NS ABE YL ELATED TILE AN ENR ts aE ER NL Pe HREM — 7 1

eee

OCD NON rome Me neat ie eA

pL AGREE CRF LILIST BPS

hii: SE Bais BSS Gah ee WBS MOSES IN

(ii)

2. Advice and appeals memoranda are

statements of policy and interpreta-

tions which have been adopted by

the agency . :

3. Advice memoranda are administrative

instructions that affect a member of

the public .

D. Avice and appeals memoranda should in

“any event be released because disclosure

will not injure the consultative functions

of government

CONCLUSION

CITATIONS

Cases:

Aviation Consumer Action Project v. CAB,

370 F.2d 945 (D.D.C. 1972)

Benson v. General Services Administration,

289 F. Supp. 590 (W.D. Wash. 1968),

aff'd, 415 F.2d 878 (9th Cir. 1969) .

Boeing Airplane Co. v. Coggeshall,

108 U.S. App. D.C. 106,

280 F.2d 654 (1960) .

Carl Zeiss Stiftung v. V.E.B. Carl Zeiss, Jena,

40 F.R.D. 318 (D.D.C. 1966), aff'd, 128

U.S. App. D.C. 10, 384 F.2d 979,

cert. denied, 389 U.S. 952 (1957)

Page

yao

(iii)

Citizens to Preserve Overton Park v. Volpe,

401 U.S. 402 (1971) . 2 4 ee G p

Clark v. Pearson, vA

238 F. Supp. 495 (D.D.C. 1965)... . .--. ss 24

Consumers Union v. Veterans Administration,

301 F. Supp. 796 (S.D.N.Y. 1969),

appeal dismissed as moot, 436 F.2d

1396 (2d Cir. 1971) © 2 ee ee ee ee 35

Cooney v. Sun Shipbuilding & Drydock Co.,

288 F. Supp. 708 (E.D. Pa. 1968) . . . - - - - 21, 22

Davis. v. Braswell Motor Freight Lines,

363 F.2d 600 (Sth Cir. 1966). . . . . - . « 24, 25, 26

Ditlow v. Volpe,

362 F. Supp. 1321 (D.D.C. 1973),

rev'd as to a different issue, is.

App. D.C. —_, 494 F.2d 1073,

cert. denied, 43 U.S.L.W. 3256

(Oct. 29, 1974) (No. 73-1780). . . - - - +--+ 30

Duignan v. United States,

274 US. 195 (1927) . 2. ee eee ee ee 1D

Environmental Protection Agency v. Mink,

410 US. 73 (1973) . . . . 7, 13, 20, 21, 28, 40, 41, 46

Ethyl Corp. v. Environmental Protection Agency,

478 F.2d 47 (4th Cir. 1973) . 2. 2 2 ee eee 21

Evans v. Department of Transportation,

446 F.2d 821 (Sth Cir. 1971),

cert. denied, 405 U.S. 918 (1972) . . . . se se : 21

General Services Administration v. Benson,

415 F.2d 878 (9th Cir. 1969), a

aff'g 289 F. Supp. 590 (W.D. Wash. 1968) . . . . 24, 43

Qore a

(iv)

Getman v. NLRB,

146 U.S. App. D.C. 209, 450 F.2d

670, stay denied, 404 US. 1204 (1971)

Grumman Aircraft Engineering Corp. v.

Renegotiation Board,

157 US. App. D.C. 121, 482 F.2d 710

(1973), cert. granted, 94 S.Ct. 2603 (1974) . -

Hawkes v. IRS, ‘<

467 F.2d 787 (6th Cir. 1972) .

Hickman v. Taylor,

329 US. 495 (1947) .

International Paper Co. v. FPC,

438 F.2d 1349 (2d Cir.),

cert. denied, 404 U.S. 827 (1971)

Kaiser Aluminum & Chemical Co. v. United States,

157 F. Supp. 939 (Ct. Cl. 1958) .

Ladrey v. Commission On Licensure

To Practice The Healing Art,

104 U.S. App. D.C. 239, 261 F.2d 68

(en banc), cert. denied, 358 U.S. 920 (1958)

Long v. IRS,

349 F. Supp. 871 (W.D. Wash. 1972)

Long v. IRS,

339 F. Supp. 1266 (W.D. Wash. 1971) .

M. A. Schapiro & Co., Inc. v. SEC,

339 F. Supp. 467 (D.D.C. 1972) .

Machin v. Zuckert,

114 U.S. App. D.C. 335, 316 F.2d 336,

cert. denied, 375 U.S. 896 (1963)

Page

. 41,42

. 37, 38,-39

.20, 22, 23, 28

(v)

Page

Marbury v. Madison,

5 US. (1 Cranch) 137 (1803) . ae ewe ee

Mink v. Environmental Protection Agency,

150 U.S. App. D.C. 233, 464 F.2d 742

(D.C. Cir.), rev'd on other grounds,

410 U.S. 73 (1973) 40-41

Montrose Chemical Corp. v. Train,

_ U.S. App. DC. _ , x

491 F.2d 63 (1974) . . - =-s-: . 41, 42, 43

Morgan v. United States, .

304 U.S. 1 (1938) . en ae eee

Morgan v. United States,

298 US. 468 (1936) . 2-6 Ne et 21

NAACP v. Hodgson,

57 F.R.D. 81 (D.D.C. 1972) ae we ee 6D

Nixon v. United States,

_ US. _, 94 S.Ct. 3090 (1974) _e ee oo

O'Keefe v. Boeing Co.,

38 F.R.D. 324 (S.D.N.Y. 1965) a ey * h

Philadelphia Newspapers, Inc. v. HUD, ~ .

343 F. Supp. 1176 (E.D. Pa. 1972)... 2 « + » «= 21, 45,

Renegotiation Board v. Bannercraft Clothing Co., Inc.,

415 U.S. 1 (1974) . : 41

Robins & Wells, Inc. v. United States,

63 F.R.D. 73 (M.D.N.C. 1974) 26

Roviaro v. United States, >

se oee hee Ee OO

353 U.S. 53 (1957)

Be Reet eee SERN mCRNS ofl

rei Lee es ee NS ay

PERE LATIN III aE BLE NA aM RES ere rar Ce We

es we LANA ASE LRA RY ROAM CEE INCI CRN set ngs Bovey

; Pete sewoens FE EOP I REALAGE PR NNR

(vi)

Page

Sears, Roebuck and Co. v. GSA,

Civ. No. 2146-73 (D.D.C., Sept. 6, 1974). . . . |. . 12

Secretary of Labor v. Farino,

490 F.2d 885 (9th Cir. 1973). 2. 2. 2. we eee 12

Shokuwan Shimabukuro v. Higeyoshi,

78 U.S. App. D.C. 271, 140 F.2d 13 (1944). . . . . 13

Soucie v. David,

145 U.S. App. D.C. 144,

448 F.2d 1067(1971) . . . . . ee eee 29, 43

Stanley v. United States,

245 F.2d 427 (6th Cir. 1957). . . 2. 2 ee ee eT

Sterling Drug, Inc. v. FTC,

146 U.S. App. D.C. 237,

450 F.2d 698 (1971). 2. . . ee ee ee 1415, 27, 43

Stern v. Richardson,

367 F. Supp. 1316 (D.D.C. 1973) . . .. 2. ee 45

Stokes v. Brennan,

476 F.2d 699 (Sth Cir. 1973). . . . . eee 38, 39

Tax Analysts and Advocates v. IRS,

362 F. Supp. 1298 (D.D.C. 1973),

aff'd in part, rev'd in part, No. 73-1978 :

(D.C. Cir., Aug. 19,1974) . 2 2 2 ee ee ee HM, 35

Tax Analysts and Advocates v. IRS,

No. 73-1978 (D.C.-Cir., Aug. 19, 1974),

aff’g in part, rev’g in part, 362 F. Supp. 1298

(D.D.C. 1973) ©... 2. 6 ee ee ee eee ee 26

Tennessean Newspapers, Inc. v. FHA,

464 F.2d 657 (6th Cir. 1972). . . . . . eee +) 43

Thill Securities Corp. v. New York Stock Exchange,

57 F.R.D. 133 (E.D. Wis. 1972) . . . . - - ~~ + 24

(vii)

United States v. Morgan,

313 US. 409 (1941) .

United States v. Reynolds,

345 US. 1 (1953) .

United States v. Six Lots of Ground,

27 Fed. Cas. 1097 (C.C. La. =

(No. 16,299) .

Vaughn v. Rosen, ;

157 U.S. App. D.C. 340, 484 F.2d 820 (1973),

cert. denied, 415 U.S. 977 (1974)

Vaughn v. Rosen,

Civ: No. 1753-72 (D.D.C., Oct. 9, 1974)

Walled Lake Door Co. v. United States,

3] F.R.D. 258 (E.D. Mich. 1962)

Washington Research Project, Inc. v. HEW,

No. 74-1027 (D.C. Cir., Sept. 12, 1974)

Zacher v. United States,

227 F.2d 219 (8th Cir. 1955),

cert. denied, 350 U.S. 993 (1956)

Statutes, Bills, Rules, And Regulations:

5 U.S.C. 8301 [formerly 5 U.S.C. §22] .

5 U.S.C. §55i(1)

5 U.S.C. §551(2)

* 5 USC. §551(6)

5 U.S.C. §551(7)

Page

21,22

4 |

29, 43

28, 29

;

(viii)

Freedom of Information Act,

5 U.S.C. §552

5 US.C. §552(a(1 (D)

5 U.S.C. §552(aX2) .

5 U.S.C. §552(aX 2A)

5 U.S.C. §552(a)(2)(B)

5 U.S.C. §552(a)(2)(C)

5 USC. §552(a)(3) .

5 U.S.C. §552(b\(1)

5 U.S.C. §552(b)(2)

5 U.S.C. §552(b)(3)

~§ U.S.C. §552(b)(5S)

5 U.S.C. §552(b\(7)

Publ. L. 90-23, 81 Stat. 54 .

Pub. L. 89-487, 80 Stat. 251

Pub. L. 85-619, 72 Stat. 547

S. 1160, 89th Cong., Ist Sess. (1965)

S. 1666, 88th Cong., 2d Sess. (1964)

F.R. Civ. P. 26 .

F.R. Civ. P. 34 .

22 C.F.R. §6.5(b)

24 C.F.R. 815.21

28 C.F.R. 816.7 .

29 C.F.R. §70.22(b)

29 C.F.R. §70.50

29 C.F.R. §101.8

32 C.F.R. 81480.7(e) .

Page

; 4

29, 34

. 5, 9, 28, 31, 39

5, 29, 34

. 2 a oe

5, 29, 36, 38, 39

6, 7,

4, 5, 6, 7, 9, 10,

14,

10, 11, 39

. . . . 12, 21, 40

+ 6, 7,9,

11, 13, 36

passim

11, 13, 21

18, 31

15, 17, 19

20, 24

nad. AAO NEL AE IAA NO PYG SERIAL OM

ri ee ee

(ix)

Page

43CFR.§22 . 2-2-2022 eee ee ee es WD

45 CFR.§5.70.. 0-0-0 eee ee ee ee WD

49 CER.§751. 0.00 66 0 ee ee ee ee

Miscellaneous:

H. Rep. No. 93-1380, 93d Cong.,

2nd Sess. (1974) 2. 6 eee ee 9, 40

H. Rep. No. 125, 90th Cong.,

Ist Sess. (1967). ee ee ee OW

H. Rep. No. 1497, 89th Cong., .

2d Sess. (1966) . . . - - « ‘Ii, 13, 14, 18, 19, 31, 34, 37

S.. Rep. No. 93-854, 93d Cong.,

2d Sess. (1974) 2 6 ee ee 2, 12

S. Rep. No. 813, 89th Cong.,

Ist Sess. (1965). . . - II, 12, 14, 17, 18, 19, 31, 34, 36

S. Rep. No. 1219, 88th Cong.,

2d Sess. (1964) . 2. 6 ee ee ee 15, 19

Hearings on H.R. 5012-21, 5237, 5406, 5526,

5582. 6172, 6739, 7010, and 7161 Before

the Subcommittee of the House Comm. on

Govt. Operations, 89th Cong., Ist Sess.

(1965) 2 6 18

Hearings on S. 1160, S. 1336, S. 1758 and

S. 1879 Beofre the Subcomm. on Adm.

Practice and Proc. of the Senate Comm.

on the Judiciary, 89th Cong., Ist Sess.

(1965)... - + es es 13, 17

RRL TR RRR Dat

eee ee ae Eee

(x)

Hearings on S. 1666 and S. 1663 Before the

Subcomm. on Adm. Practice and Proc. of

the Senate Judiciary Comm., 88th Cong.,

Ist Sess. (1963). 2. 2 2 7 1 ee ee et ee ee) 61D

120 Cong. Rec. S 9336 (daily ed.,

Mey 20, 1974) ..-.- 3 ss CD

112 Cong. Rec. 13007 (1966). . . . .. ..... ‘212

110 Cong. Rec. 17667-68 (1964). . . . .. . . 15, 16, 19

110 Cong. Rec. 17086 (1964). . . . ... . . 14,15, 19

Attorney General’s Memorandum on the Public .

Information Section of the Administrative ,

Procedure Act (1967). . . . . . «se « «© «© «= [2

Committee on Civil Rts. of the Assoc. of the

Bar of the City of New York, Executive

Privilege; Analysis and Recommendations

for Congressional Legislation (1973). . . . . . . + 27,

Department of Justice, A.List Of Suits Filed

Under 5 U.S.C. 552 That Are Being Handled

By The Civil Division As Of September 1,

St orn ar ra co cane aa a a a re

K. Davis, Administrative Law Treatise

(Supp. 1970). . . . . . . . 12, 14, 31, 34, 35, 39, 42

4 J. Moore and J. Lucas, Federal Practice

(2d ed. 1974). 2 2 2 we eee ee ee ee OS

Note, The Freedom of Information Act and

the Exemption for Intra-Agency Memoranda,

86 Harv. L. Rev. 1047 (1973). - . - - - + +s 24

. IN THE

Supreme Court of the Anited States

OCTOBER TERM, 1974

No. 73-1233

NATIONAL LABOR RELATIONS BOARD AND

PETER G. NASH, GENERAL COUNSEL,

Petitioners,

Vv.

SEARS, ROEBUCK AND COMPANY,

Respondent.

On Writ of Certiorari To The United States Court of

Appeals for The District of Columbia Circuit

BRIEF FOR AMICUS CURIAE FREEDOM —

OF INFORMATION CLEARINGHOUSE

SNR PGS SEAN ELSE RENNER IN INE AG REN PSY TR

( INTEREST OF THE AMICUS CURIAE

Amicus curiae Freedom of Information Clearinghouse is rep-

resenting the interests of those persons who, regardless of any

commercial interest, seek access to the full spectrum of informa- ©

tion available from the government. While we believe that a

democracy can function properly only when there is an cpen :

government and an informed electorate, we recognize that even. ©

ACL he

in a democracy certain information must at times be kept

confidential for the benefit of the country. Too much :

governmental secrecy, however, benefits neither the people

nor the government but breeds mistrust and impedes effi-

cient government operation. :

The Freedom of Information Clearinghouse was estab-

lished in 1972 as part of the Center for Study of Responsive

Law, which is a publicly supported foundation. The Clear-

inghouse was created in order to increase public access to

government controlled information. It collects and dis-

seminates relevant information by mail and through speeches,

conferences, articles, and testimony before Congressional com-

mittees concerning the public’s rights of access. It is one of the

few places to which persons without a significant financial stake

in securing information can turn to obtain experienced legal

assistance. As a consequence, 22 of the 95 Freedom of Infor-

mation Act (FOIA) cases in litigation on September 1, 1974

were being handled by a Clearinghouse attorney. i

The Clearinghouse has chosen to file an amicus curiae

brief in this case because it believes that this Court's de *

cision may have an impact reaching far beyond this par-

ticular case. We have discussed the parameters of exemption

l See Department of Justice, A Lis: Of Suits Filed Under 5

U.S.C. $52 That Are Being Handled By The Civil Division As Of

September 1, 1974. The Clearinghouse also filed an amicus curiae

brief in one other case then pending. Congress has recently recog-

nized that "often the barriers presented by court costs and attorneys’

fees are insurmountable for the average person requesting informa-

tion,"” and has proposed legislation allowing awards of attorneys fees

to persons who substantially prevail in Information suits against the

Government. S. Rep. No. 93-854, 93d Cong., 2d Sess. 17 (1974). .

If finally enacted, we anticipate that the Clearinghouse's percentage

of the country's litigated cases will decline.

5 of the Freedom of Information Act, 5 U.S.C. §552(b)(S)

(1970), -in depth so tha‘ the Court will have a full picture

of the underlying issues and, whatever the outcome, it

will not inadvertently cripple either the government’s in-

terest in protecting certain deliberations or the public's

interest in securing all available information on the work-

_ings of its government

STATEMENT

On April 6, 1971, Sears, Roebuck and Co. (Sears)

filed a charge of alleged untair labor practices with the

Seattle Regional Office of the National Labor Relations

Board (NLRB) (Pet. Br. 8).2. The case was submitted to

the Division of Advice (then the Advice Branch) in accor-

dance with section 101.8 of the NLRB’s Statements of Pro-

cedure, 29 C.F.R. §101.8, which provides that in cases in-

volving novel and complex legal issues "the regional director

_ must submit the cases for advice from the general

counsel" (emphasis added). Apparently the Division of -— -

Advice decided the issues unfavorably to Sears, since the

regional director notified Sears that no complaint would

be filed (A. 12-13, 21-23), and the General Counsel con-

cedes that "the Regional Director rarely, if ever, disregards

advice on legal issues'' (Pet. Br. 6). Unless administratively

appealed, such initial decisions are final, and a charging

party's access to Board proceedings are cut off (A. 198-200).

2 “pet. Br.” refers to the Brief for the Petitioners in this Court.

“Pet. App.” refers to the appendix to the petition, “Op. App.” to

the appendix to the respondent’s brief in opposition to the petition,

and “A” to the separate appendix printed pursuant to Rule 36.

Se a RE ae aca

Seems Casa, sy 7

REA LAE SATA TORRE i ha ting

: es 5 PORE RS Laban. ss tovasn rey ate: ae ae:

: ETL ARES REE RS EG RMOR ONS I RRA DAE

=f ee CERIN ERE ITY cura:

RAE se eer Reet

: ‘\

At this point, Sears requested copies of: (1) the advice

memorandum in its case; (2) advice and appeals memoranda

dealing with similar issues within the preceding five years;

and (3) an index of the advice and appeals memoranda.

The General Counsel denied Sears' requests, claiming that

exemptions 5? and 74 of the Freedom of Information Act

gave him a right to keep this information secret (A. 19).

In August, 1971, Sears filed suit under the Freedom of

Information Act, 5 U.S.C. §552, in the United States Dis-

trict Court for the District of Columbia seeking access to

all three categories of requested documents.

Meanwhile, Sears had appealed the initial decision to

the General Counsel and made both written and oral

presentations. As a result, the Acting General Counsel re-

versed the initial decision, an extremely *are occurrence

when his Office has previously issued an advice memoran-

dum, and ordered the issuance of a Board complaint, which

was filed on September 1, 1971 (A. 32-37). Finally, in

February, 1972, six months after the filing of the FOIA

complaint ard five months after the filing of the unfair

labor practices complaint, the General Counsel provided

- Sears with "sanitized" copies of advice and appeals memo-

_ randa from all closed cases, and made available the General

- Counsel's index to the advice memoranda in closed cases.

- The Generfél\ Counsel made it clear that he was producing

- these docurhents only as a matter of grace, and that he

35 USC. §552(b)(5): “This section does not apply to matters that

““* are. ..(5) inter-agency or intra-agency memorandums or letters which

would not be available by law to a party other than an agency in litiga-

tion with the agency,”

20st §552(b\7): "This section does not apply to matters

that are . . . (7) investigatory files compiled for law enforcement

‘purposes except to the extent available by law to a party other than

an agency;"'

Betis tsters.a oe

did not consider himself to be obligated to furnish them to

others. He also refused to give Sears copies of any docu-

ments which would explain the meaning of such phrases as

the "circumstances of the case" (A. 169; A: 101; A. 107;

Pet. App. C, p. 5a).

In the district court the General Counsel claimed that

the advice and appeals memoranda were internal communi-

cations covered by exemption 5, and that the materials

incorporated. therein by reference were exempted from

compelled disclosure by both exemptions 5 and 7. On

August 10, 1972, the district court granted Sears’ motion

for summary judgment and denied the General Counsel's

similar motion, holding that advice memoranda were in-

structions to staff and appeals memoranda were final agency

opinions which must be disclosed pursuant to 5 U.S.C.

§552(a)(2)(A) and (C) (Pet. App. C, p. 9a), and that in

any event neither type of memoranda was within the scope

of exemption 5 (/d.). The district court also ordered dis-

closure of documents expressly incorporated by reference,

and of non-exempt documents indirectly incorporated by

use of such phrases as the "circumstances of the cases,"’

although the court also gave the General Counsel the al-

ternative of producing explanatory material other than the

incorporated documents. In addition, the Court allowed

deletions of the names of affiants and settlement sugges-

tions, if any, contained in the memoranda. Finally, the

district court ordered the General Counsel to make avail-

able the indices required by 5 U.S.C. §552(a)(2) for ad-

. vice and appeals memoranda compiled after July 4, 1967

(Pet. App. C, pp. 9a-10a). By this time the General Coun-

sel had already made available the index for advice memo-

randa in closed cases and was in the process of compiling

YON OO ee RL oe Peeing

TPE NEST I LE OTN LES MNT LTE TLS TOE ET EIS

BNE RTE TUT ARNE

Precersvewarnezg ee cin

Biwsaetcsaarees

one for appeals memoranda, albeit i iiiad only with

August, 1971 (G.C. Br. Dee. 29-n.23).9

In the court of appeals the General Counsel again claimed

the applicability of exception 5 to the advice and appeals

memoranda, and exemptions 5 and 7 to the backup ma-

terials. But this time he also claimed that the request for

backup materials incorporated by reference was not a re-

quest for "identifiable records" within the meaning of 5

U.S.C. §552(a)(3) (G.C. Br. D.C. 31). Nonetheless, the

court of appeals affirmed on the basis of the/ district court's

decision (Pet. App. A, p. la). A petition for rehearing was

denied without opinion (Pet. App. B, p. 3a).

In his petition for a writ of certiorari, the Geperal Coun-

sel once again claimed that advice and appeals memoranda

fell within exemption 5, but he also alleged for the first

time since his original letter of denial (A. 19) that they,

as well as the backup materials, were within the scope of

exemption 7. Similarly, while he dropped his ciaim that

some of the documents were not "identifiable," he raised

for the first time the claim that all of the documents sought

were covered by exemption 2: "matters... . related solely

to the internal personnel rules and practices of an agency.’

SUMMARY OF ARGUMENT

In urging affirmance of the decisions below, the Clearing-

house has focused on the General Counsel's withholding of

advice and appeals memoranda, leaving largely to the parties

the important, but tangential, issues concerning indexing re-

quirements and disclosure of documents incorporated by ref-

erence.

5 "GC. Br. D.C." refers to the principal Brief of the Appellant

(General Counsel) in the Court of Appeals for the District of Colum-

bia Circuit.

The ‘special features of the Freedom of Information Act

include requirements for mandatory disclosure of non-exempt

information, permissive disclosure of exempt information, ex-

haustion of administrative remedies by a requesting party, and

de novo court review with the burden of proof on the agency

(see 5 U.S.C. 8552(a)(3)). Implicit in the Act is a requirement

that by the time a case reaches the district court, the agency will

have claimed all of its defenses, and that the failure to do so will

act as a waiver of non-claimed exemptions, at least where, as

here, no law prohibits disclosure. The General Counsel failed to

claim the applicability to advice and appeals memoranda of

either 5 U.S.C. 8552(b)(2) or 5 U.S.C. 8552(b)(7) until he

reached this Court. Since in the courts below, he claimed (b)(7)

only as to the documents incorporated by reference, and he never

claimed (b)(2) as to any of the documents, he should not now be

allowed to rely upon those waivable defenses.

In attempting to justify secrecy during the pendency of

an NLRB proceeding, the General Counsel has primarily

relied upon exemption 5 of the Freedom of Information

Act, which allows withholding of "intergagency and intra-

agency memorandums or letters which would not be avail-

able by law to a party other than an agency in litigation

with the agency." 5 U.S.C. §552(b)(5). Since almost

any document produced within the executive branch may

be considered an inter- or intra-agency memoranda, a broad

reading of the exemption would engulf the Act's liberal

disclosure requirements and would make most of the other

exemptions superfluous. To prevent such an occurrence,

courts have-recognized that the "available by law'’ excep-

tion limits the exemption to those documents which have.

been held not to be discoverable because of the doctrine

of executive privilege. Environmental Protection Agency

vy. Mink, 410 U.S. 73, 85-86 (1973). Yet difficulties re-

main in applying the "rough analogies'’ of the discovery

» Payee DS By WOE AL tee ChE) Bead tak MRA DD NN tt iS ~ -

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tules to the Freedom of Information Act because Congress

has determined that the need of an individual requester for

the disputed records is irrelevant under this exemption.

Id. at 86. Courts have thus had to consider the purposes

behind both the Act and the exemption in an effort to insure

the widest possible disclosure of useful information to the pub-

lic without causing serious injury to the consultative functions

of government which executive privilege is intended to protect.

We believe that Congress intended the focus to be on the

proper scope of executive privilege in evaluating claims under

the fifth exemption. Accordingly we deal first with the

FOIA's legislative history in an attempt to discern Congress’

understanding of the scope of the governmental privilege,

and then with the discovery cases which have actually in-

terpreted and applied that privilege. This analysis demon-

strates that the privilege embodied in exemption 5 does

not generally protect factual information and extends only

‘to two types of advice: (1) recommendations, usually at

a high level, regarding the making of policy (as opposed to

a mere application of policy) and (2) legal opinions in the

nature of a lawyer's work product. Moreover, agency

opinions, policy statements, and instructions to staff do

not fall within the scope of the privilege and, hence, are

generally disclosable. Finally, in the third and fourth

subsections, we discuss the leading cases which have in-

terpreted exemption 5, and conclude that advice and appeals

memoranda cannot be withheld under Congressionally man-

dated criteria.

ARGUMENT

1. NEITHER THE EXEMPTION 2 NOR THE Ex-

EMPTION 7 ISSUES RAISED BY THE GENERAL

COUNSEL ARE APPROPRIATE FOR SUPREME

COURT CONSIDERATION IN VIEW OF THE

SPECIAL CIRCUMSTANCES OF THIS CASE.

Under the statutory scheme created by Congress for re-

view of Freedom of Information Act requests, an agency

should not be permitted to raise a new defense for the

first time at the appellate court level — certainly not at

the Supreme Court level — as the General Counsel has

sought to do with regard to his seal

ilarly, this Court should refuse to rule upon the General

Counsel's exemption 7 defense because it was not raised

in the courts below as to the advice and appeals memo-

randa, although it was argued regarding documents in-

corporated therein by reference.®

including exemption 7, are pending in Congress. See Conference

Report, H. Rep. No. 93-1380, 93d Cong., 2d Sess. (1974). If

enacted, the government’s claim under exemptio. 7 will no longer

be a question worthy of certiorari even as to the material incor-

porated by reference because Congress’ specifically expressed intent

in amending exemption 7 is to ''disapprov[e]" (H. Rep. No. 93-

1380, supra, at 2) the very cases relied upon by the General |

Counsel in his Supreme Court brief. Compare Pet. Br. 32 with

120 Cong. Rec. S 9336 (daily ed., May 30, 1974). In doing so,

the House-Senate Conference Committee explicitly stated:

Nor is this exemption [7] intended to include

records falling within the scope of subsection

552(a)(2) of the Freedom of Information law,

such as administrative staff manuals and instruc-

tions to staff that affect a member of the public.

[H. Rep. No. 93-1380, supra, at 12-13 (1974)]

(continued)

tion 2 claim. Sim-

2A ENS AN a = |

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In June of 1971, Sears requested access to the advice

and appeals memoranda which are the subject of this liti-

gation. Both its initial request and its administrative appeal

were denied on the bases of exemptions 5 and 7 of the

Freedom of Information Act (A. 19, 24-28, 29-31; Pet. Br.

10). In the district court, exemptions 5 and 7 were the

only defenses raised, and the latter exemption was argued

only as to certain backup materials. Both issues were de-

cided adversely to the agency.

In the court of appeals, the General Counsel again relied

upon exemptions 5 and 7, but he also attempted to raise

for the first time the defense that the documents incor-

porated by reference into the advice and appeals memo-

randa, and ordered to be disclosed by the district court,

were not "identifiable records’ within the meaning of sec-

tion 552(a)(3) (G.C. Br. D.C. 31). Since the court of

appeals affirmed the judgment on the basis of the opinion

of the district court (Pet. App. A, pp. la-2a), which had

not considered the identifiable records question because it

had not been argued, it appears that the court of appeals

refused to consider the belatedly raised identifiable rec-

ords issue. In any event, the General Counsel has aban-

doned that attempt to rationalize his withholding, but now,

in this Court, he seeks for the first time to raise two new

defenses. He rather apologetically states that another ''re-

view of the case'’ (Pet. Br. 36) indicates that advice and

6 (continued) While the President has vetoed the proposed amend-

ments, neither his veto message nor the alternative language which

he has transmitted to the Congress would change the proposed

amendments to exemption 7 as they are relevant to this case. The

Congress has yet to vote on a possible veto override, and the Presi-

dent has in any event urged the Congress to reenact the new amend-

ments during this Session with his suggested changes to exemption

one, and the provisions dealing with costs and time limits in respond-

ing to requests. :

appeals memoranda are “related solely to the internal per-

sonnel rules and practices of an agency” (5 U.S.C. 8552(b)(2)

(emphasis added)).” Furthermore, he claims that the advice and

appeals memoranda are protected by the investigatory files

exemption (5 U.S.C. §552(b)(7)), without even acknowl-

edging that the issue was never raised below, where he had,

asserted exemption 7's applicability only as to eas

documents incorporated by reference. $

The regulations of most Federal agencies, require a re-

quester to make both an initial and appellate request be-

fore going to court. E.g., Justice, 28 C.F.R. $16.7; Labor,

29 C.F.R. §70.50; Renegotiation Board; 32 C.F.R. §1480.

7(e). See 5 U.S.C. §552(a)(3); Aviation Consumer Action

Project v. CAB, 370 F. Supp. 945 (D.D.C. 1972). The require-

ment that a requester exhaust his administrative remedies is in-

tended to give the agency an opportunity to fully consider a

request and to focus the legal issues. The administrative pro-

cedure is, however, a two way street. Just as a requester can-

not expand the scope of his request after going to court, an

agency should not be allowed to use its administrative proce-

dure as a device for exhausting the requester by claiming one

set of exemptions at the administrative level, only to change

its defenses at each successive level of court review.

7 The General Counsel did acknowledge that "some" lower courts

— citing the Fifth and Sixth Circuits, as well as the district court

for the District of Columbia (Pet. Br. 39) — have held that the

Senate Report correctly states that exemption 2 protects only docu-

ments concerned solely with an agency's relations with its employees.

See S. Rep. No. 813, 89th Cong., Ist Sess. 8 (1965). Contra H. Rep.

No. 1497, 89th Cong., 2d Sess. 10 (1966).

8 Also noteworthy is the fact that the General Counsel argues in

this Court that the "except" clause to exemption 7 was not intended

to allow a plaintiff access to documents which would be available in

discovery (Pet. Br. 34), while he argued exactly the opposite view be-

fore the Court of Appeals (G.C. Br. D.C. 33).. See Petition For A

Writ of Certiorari 13.

OB OIE

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This conclusion is supported by the statutory scheme since

the exemptions from mandatory disclosure are permissive only, ?

and may be waived, unless there is an executive order

(see exemption 1) or a statute (see exemption 3) which

prohibits disclosure:'® Allowing an agency to claim one ex-

emption at the administrative level and to argue additional

exemptions at the district court level will dilute the administra-

tive review process, and spawn litigation by encouraging a

superficial review process. The requester, who does not know

the actual contents of a document, may rightly realize that the

exemption claimed is inapplicable and thus commence litigation,

even though he may not have gone to court had the agency taken

the time to properiy review the requested documents, claimed

all the exemptions which were really applicable, and explained

the justification for applying them.

In any event, there is no justification for allowing an agency

to raise new, waivable, issues on appeal. To do so is incon-

sistent with the statutory mandate and would defeat the |

Congressional policy underlying the Act. See Duignan v.

9 E.g., Sears, Roebuck and Co. v. GSA, Civ. No. 2146-73, slip op.

4 (D.D.C., Sept. 6, 1974). See, e.g., S. Rep. No. 93-854, 93d Cong.,

2d Sess. 6 (1974); S. Rep. No. 813, 89th Cong., Ist Sess. 10 (1965);

112 Cong. Rec. 13007 (1966); K. Davis, Administrative Law Treatise

§3A.5 (Supp. 1970).

10 In accordance with the suggestion in the Attorney General's

Memorandum on the Public Information Section of the Administra-

tive Procedure Act 2-3 (1967), many agencies have by regulation ex-

pressly adopted the position that, notwithstanding applicability of an

FOIA exemption, records must be disot6sed when to do so is in the

public interest. F.g., State, 22 C.F.R. §6.5(b); HUD, 24 C.F.R. 815.

21: Labor, 29 C.F.R. §70.22(b); Interior, 43 C.F.R. §22; HEW, 45

C.F.R. 85.70; DOT, 49 C.F.R. §7.51. At least one court of appeals

has approvingly cited the Labor Department's regulation curbing the scope

of the FOIA exemptions. Secretary of Labor v. Farino, 490 F.2d 885,

893 (7th Cir. 1973).

United States, 274-S. 195, 200-4927); Shoktavan-Shima-

_bukuro y. Higeyoshi, 78 U.S. App. D.C. 271. 273. 140 F.2d

13. 15 (1944): Stanley v. United States, 245 F.2d 427. 435

(6th Cir. 1957); see also Ladrey v. Commission On Licen-

sure To Practice The Healing Art, 104 U.S. App. D.C. 239.

147. 261 F.2d 68, 71 (en banc), cert. denied, 358 U.S.

920 (1958). Accordingly, the Court should neither con-

sider the General Counsel's belatedly raised exemption 2

defense nor, with regard to the advice and appeals memo-

randa, the claimed exemption 7 defense.

Il. ADVICE AND APPEALS MEMORANDA ARE NOT

WITHIN THE SCOPE OF EXEMPTION 5S.

A. The Legislative History Demonstrates that Exemption

5 Protects only Legal and Policy Deliberations whose

Premature Disclosure Would Impede the Consuitative

Functions of Government, and not Agency Decisions

or Directives.

In explaining the purpose of exemption 5, the House

Report on the FOIA declares that ‘‘any internal memoran-

dums which would routinely be disclosed to a private party

through the discovery process in litigation with the agency

would be available to the general public.'’ H. Rep. No.

1497, 89th Cong., 2d Sess. 10 (1966).'!! Fortunately, the

11 the use in the House Report of the limiting phrase "routinely

be disclosed" has been criticized as an attempt to expand the scope

of the exemption contrary to the words of the statute which would

seemingly require disclosure whenever any hypothetical party under

some, possibly special, circumstances could gain, access through dis-

covery. Benson v. General Services Administration, 289 F, Supp.”

$90, 595 (W.D. Wash. 1968), aff'd, 415 F.2d 878 (9th Cir. 1969). +

See Environmental Protection Agency v. Mink, supra, 410 U.S. at

85-86. Contra Sterling Drug, Inc. v. FTC, 146 U.S. App. D.C. 237,

(continued)

Besascttiocsse eee DE

14 | J

legislative history of exemption 5 contains considerably

more material explaining what Congress perceived to be the

privilege's usual limits, and hence the limits of exemption

5. This history demonstrates, we submit. that the fifth

exemption was intended to protect only legal and policy

deliberations whose premature disclosure would impede the

consultative functions of government, and that Congress

never intended to allow withholding of agency opinions,

interpretations or instructions to staff which affect members

of the public. See S. Rep. No. 813, 89th Cong., Ist Sess.

6-7. 9 (1965); H. Rep. 1497, supra, at 7, 10.

Exemption 5 apparently originated in section 3(c) of S.

1666. 88th Cong., 2d Sess. (1964), which exempted:

the internal memorandums of the members and

employees of an agency relating to the considera-

tion and disposition of adjudicatory and rule-

making matters. [110 Cong. Rec. 17086 (July

28. 1974)}.

At the Senate hearings executive officials urged that the

exemption for policy deliberations should not be limited to

adjudicatory and. rule-making matters.'2, Consequently, when

the Senate bill was reported, it expanded the exemption to

cover:

11 (continued) 243-44, 450 F.2d 698, 704-05 (1971). We do not

think it necessary for this Court to decide this issue since, as demon-

strated in the following pages, the documents sought in this action do

not fall within the scope of the executive's privilege, and so they

should be “routinely” made available in discovery. See generally K.

Davis. Administrative Law Treatise §3A.21, pp. 157-58 (Supp. 1970).

12 E.g., Hearings on S. 1666 and S. 1663 Before the Subcomm.

on Adm. Practice and Proc. of the Senate Judiciary Comm.. 88th

Cong., Ist Sess. 202-03, 247 (1963).

intra-agency or inter-agency memorandums or let-

ters dealing solely with matters.of law or policy

‘ —[S. 1666, 82(c)(5), id. ]

The Committee Report explained that:

_. . there are certain governmental processes re-

lating to legal and policy matters which cannot

be carried out... “in a fish bowl” [but]

* * *

All factual material in Government records is to

be made available to the public, as well as final

agency determinations on legal and policy matters

which affect the public. [S. Rep. No. 1219, 88th

Cong,, 2d Sess. 11 & 7 (1964) (Emphasis in —s

inal)]

On the Senate floor Senator Humphrey suggested to Sena-

tor Long, a leading proponent of the FOIA, that the sec-

tion be amended to exempt "‘intra-agency or inter-agency

memorandums or fetters dealing with matters of fact, law

or policy." He argued:

As presently written clause (5) of the amended

Section 3(c) appears not to exempt intra-agency

or interagency [sic] memorandums or letters dealing

with matters of fact. For example, clause (5)

would apparently not exempt memorandums pre-

pared by agency employees for themselves or their

superiors purporting to give their evaluation of the

credibility of evidence obtained from witnesses or ©

other sources. The knowledge that their views

might be made public information would inter-

fere with the freedom of judgment of agency

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BIAS EAE PRE

employees and color their views accordingly.

Memorandums summarizing facts used as a basis

for recommendations for agency action would

likewise appear to be excluded from the exemp-

tidn contained in clause (5) [110 Cong. Rec.

17667 (July 31, 1964)}.

Senator Long responded that the suggested amendment

was overbroad and unnecessary for the purpose suggested

by Senator Humphrey:

The suggestion with respect to exception (5), add- :

ing ‘matters of fact" to "matters of law or policy"

would result in.a great lessening of the information

available to the public and to the press. Further-

more, the example cited with respect to intra-agency

memorandums giving evidence of the credibility of

evidence obtained from witnesses or other sources,

leads me to point out that there is nothing in this

bill which would ovefride normal privileges dealing

with the work product and other memorandums

summarizing facts used as a basis for recommenda-

tions for agency action if those facts were other-

wise available to the public. [/d. at 17667-68].

With that explanation, the Senate passed the bill without

change (110 Cong. Rec. 17668). That bill did not become

the law because the House did not act upon the legislation

during the 88th Congress.

When S. 1160, the bill which ultimately became the Free-

dom of Information Act, was introduced in the 89th Con-

gress, it contained the same exemption 5 passed by the

Senate in the 88th Congress.'2 During the course of Senate

13 Hearings on S. 1160,S. 1336, S. 1758 and S. 1879 Before the Sub-

_— comm. on Adm. Practice and Proc. of the Senate Comm. on the Judiciary, ~

. 89th Cong., Ist Sess. 7 (1965).

hearings, several agencies expressed apprehension that the

language of exemption 5. limiting it to memoranda deal-

ing ''solely'' with matters of law or policy, would require

disclosure of entire documents, including legal and policy

recommendations whenever the documents contained any

factual information.'* Thus, to clarify its intention, the

Senate substituted the language — ‘which would not be

available by law to a private party in litigation with the

agency'' — for the wording: "dealing solely with matters

of law or policy." S Rep. No. 813, supra, 1.45 The

Senate Committee explained (/d. at 2 & 9):

The purpose of clause (5) is to protect from dis-

closure only those agency memorandums and let-

ters which would not be subject to discovery by

a private party in litigation with the agency. This

would include the working papers of the agency

attorney and documents which would come with-

in the attorney-client privilege if applied to pri-

vate parties.

+f x * *

14 See, e.g., Hearings on S. 1160, supra, at 46 (Treasury Depart-

ment); id. at 236-37 (ICC); id. at 266 (NLRB); id. at 406-07 (De-

partment of Commerce); id. at 417 (Department of Defense); id.

at-446 (FAA); id. at 450 (FCC).

15 ¢ 4160 as enacted defined "private party’’ as "any party other

than: an agency." Pub. L. 89-487, §3(g)," 80 Stat. 251. When the

statute was codified, the definition was incorporated into the exemp-

tion (Pub. L. 90-23, 81 Stat. 54), giving 5 U.S.C. §552(b)(S) its present

wording: "[memorandum] . . . which would not be available by law

to a party other than am agency in litigation with the agency.’ The

codification made no substantive change in the FOIA. E.g., H. Rep.

No. 125, 90th Cong., Ist Sess. 1 (1967).

5 att ss

eae Cea LR ROLE ROE ’ OSPR, ery ees x,

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It was pointed out in the comments of many of

the agencies that it would be impossible to have

any frank discussion of legal or policy matters in

writing if all such writings were subjected to pub-

lic scrutiny. It was argued, and with merit, that

~ efficiency of Government-would—be-greathy—ham-———_—_____-___

pered if, with respect to legal and policy matters,

all Government agencies were prematurely forced

to "operate in a fishbowl.'' The committee is

convinced of this general proposition, but it has

attempted to \delimit the exception as narrowly

as consistent with efficient Government operation.

The history of the legislation follows the same pattern

in the House. The bills introduced intc che 89th Congress

exempted only materials "dealing solely with matters of law

or policy.'"© Several executive agencies complained that

this language would force disclosure ‘of law and policy rec-

ommendations along with factual information.'’ The House

Committee subsequently reported out Senate bill 1160, in-

cluding the amended exemption 5 (H. Rep. No. 1497,

supra, at 10), and the bill was swiftly enacted into law.

While the legislative history of exemption 5 does not

conclusively answer all questions regarding Congressional

intent, it does significantly flesh out the meaning of the

words. Congress’ intention was to protect executive agencies

from being ''prematurely forced'''8 to disclose documents

16 Hearings on H.R. 5012-21, 5237, 5406, 5526, 5583, 6172,

6739, 7010, and 7161 Before the Subcomm. of the House Comm.

on Govt. Operations, 89th Cong., Ist Sess. 3 (1965).

17 see, eg. id. at 208 (Bureau of Budget); id. at 220 (Depart-

ment of Defense).

18g. Rep. No. 813, supra, at 9 (p. 18, supra).

CNS PEL EE TOS at MEL

regarding “‘certain . . . legal and policy matters,” '? such as

(a) memoranda "relating to the consideration and disposi-

tion of adjudicatory and rule-making matters,"'? including

those "summarizing facts used as a basis for recommenda-

tions for agency action if those facts were otherwise avail-- _

able to the public,"2! and (b) "the working papers of the *

agency attorney and documents which would come within

the attorney-client privilege if applied to private parties.''2

Conversely, Congress sought generally to insure disclosure

of certain internal documents such as "factual material''’

and "final agency determinations on legal and policy mat-

ters which affect the public" by excluding them from the

coverage of the exemption. Finally, the legislative history

indicates that the exemption should be-interpreted just

"as narrowly as [is] consistent with efficient Government

operation." .

19's Rep. No. 1219, supra, at 11 (p. 15, supra). See S.

Rep. No. 813, supra at 9 (p. 18, supra).

20 § 1666, supra, 110 Cong. Rec. 17086 (p. 14, supra).

21 110 Cong. Rec. 17667-68 (p. 16, supra).

22s. Rep. No. 813, supra, at 2 (p. 17, supra). See 110 Cong.

Rec. 17667-68 (p. 16, supra).

23 § Rep. No. 1219, supra, at 7 (p. 15, supra).

TE OLESEN ON AN ED LPT

24 14,

25 ¢. Rep. No. 813 (p. 18, supra). See H. Rep. No. 1497, supra,

at 10.

B. The Government’s Discovery Privilege Pro-

tects Only Certain Legal and Policymaking

Deliverations. ”

The language of exemption 5, as interpreted by this

Court, "clearly contemplates that the public is entitled to

PIT re er ae Bk

PT ee what Pha

;

all such memoranda or letters that a private party may

discover in litigation with the agency.'' Environmental

Protection Agency v. Mink, supra, 410 U.S. at 85-86.

Under Federal Rules of Civil Procedure 26 and 34, which

are to be liberally construed, a private party is entitled to

access to all relevant documents, subject only to claims

of evidentiary privilege, and the United States is bound

by the Federal Rules of Civil Procedure just as any other

litigant. E.g., NAACP v. Hodgson, 57 F.R.D. 81, 83

(D.D.C. 1972).

The General Counsel has asserted that his directives and

instructions would not and should not be available in dis-

covery (Pet. Br. 21), but the General Counsel does not

appear to have analyzed the origin and purpose of the

asserted governmental discovery privilege. Private organiza-

tions enjoy no general evidentiary privilege protecting their

internal communications from discovery. See, e.g., Kaiser

Aluminum & Chemical Co. v. United States, 157 F. Supp.

939, 944 (Ct. Cl. 1958) (Reed, J.). Any special privilege

of the executive branch results from the constitutional

and common law doctrine of executive privilege. Since

its constitutional elements are apparently limited to com-.

munications involving the President, which are not at

issue here, we need concern ourselves with only its common

26 Nixon v. United States, _ U.S. ___, 94 S.Ct. 3090, 3106-07

(1974). Communications involving judges and their law clerks or

legislators and their aides apparently enjoy similar constitutional pro-

tection.

Sees

Fe I ET REM ee at tit te EO AME LTR AL PARLE AO ls REAP EP AS ALND RA AD 2 + ne SaRiaaraneN, —-

law elements which Congress has embodied in the Free-

dom of Information Act.2”. We are not dealing here with

the executive priviléges protecting national security infor-

mation® or informants’ identities,’ but only with a gen-

eral claim that internal communications must be protected.

munications has historically been recognized to protect the

"secrets of the cabinet."" See Marbury ¥. Madison, 5 U.S.

(1 Cranch) 137, 170 (1803) (Marshall, C.J.). This privilege

for high-level policymaking deliberations has been held to

include deliberations of decisionmakers in adjudicatory and

rule-making proceedings because such proceedings have ‘a

quality resembling that of a judicial proceeding.” United

States v. Morgan, 313 U.S. 409, 422 (1941), quoting 298

U.S. 468, 480 (1936). In a much quoted passage from

the Morgan case, this Court disapproved an order allowing

the taking of the Secretary of Agriculture's deposition by

The doctrine of executive privilege " internal com-

_ Ethyl Corp. v. Environmental Protection Agency, 478 F.2d

47, 52 (4th Cir. 1973); Philadelphia Newspapers, Inc. v. HUD, 343

F. Supp. 1176, 1178 (E.D. Pa. 1972); Committee on Civil Rts. of

the Assoc. of the Bar of the City of New York, Executive Privilege:

Analysis and Recommendations for Congressional Legislation 6-7

(1973); see Cooney v. Sun Shipbuilding & Drydock Co., 288 F.

Supp. 708, 712 (E.D. Pa. 1968).

28 Compare United States v. Reynolds, 345 U.S. 1 (1953) (na-

tional security privilege in discovery) with Environmental Protection

Agency v. Mink, 410 U.S. 73 (1973) (protected by exemption 1 of

FOIA). een

29 Compare Roviaro v. United States, 353 U.S. 53 (1957) (in-

former privilege in discovery) with Evans v. Department of Trans-

portation, 446 F.2d 821 (Sth Cir. 1971), cert. denied, 405 U.S. 918

(1972) (informant's identity protected by exemption 7 of FOIA).

declaring that "it was not the function of the court to

probe the mental processes of the Secretary.'' United

States v. Morgan, supra, 313 U.S. at-422, quoting 304 U.S.

1, 18 (1938). But see Citizens to Preserve Overton Park

v. Volpe, 401 U.S. 402, 419-21 (1971).

Bteserateesiauiiare ins Se

The recent prominence of the policymaking privilege can

be traced to a 1958 opinion of Mr. Justice Reed, sitting

by designation, in Kaiser. Aluminum & Chemical Co. v.

United States, 157 F. Supp. 939 (Ct. Cl. 1958), in’ which

the term "executive privilege'' was apparently used for the

first time in a judicial opinion.” The document sought

there was an advisory opinion prepared for the Liquidator of

War Assets by a “confidential assistant" containing '‘advice

on program policy" with regard to a preposed sale of

aluminum plants. /d. at 943. The court, after making it

clear that it was not dealing with the ‘primary facts upon

which conclusions are. based," allowed certain expressions

of opinion to be withheld in order to protect the making

of "governmental policy." Jd. at 947. The court reasoned

that disclosure would be "injurious to the consultative func-

tions of government" because it would inhibit "open, frank

discussion between subordinate and chief,'' and would, in

30 The year 1958 is also significant because prior to that year

most government privilege cases were grounded on the government's

alleged authority to withhold documents under the so-called "House-

keeping Statute," 5 U.S.C. 8301 (1970) [formerly 5 U.S.C. §22].

In 1958 Congress amended that statute to make it clear that it does

not authorize withholding of information from the public. Pub. L.

85-619, 72 Stat. 547 (Aug. 12, 1958). Thus, while some courts have

continued to cite pre-1958 precedents without considering either the

effect of the 1958 amendment or the legitimate scope of the execu-

tive privilege, the trend is to reconsider the scopy of the privilege in

view of its purposes. See Cooney v. Sun Stilbuilding & Drydock

Co., 288 F. Supp. 708, 713-14 (E.D. Pa. 1968) (for discussion and

citation of cases).

effect, allow a party "to probe the mental processes’’ of

the administrator in reaching his conclusions. /d. at 946.

The Kaiser case has been widely followed in cases concern-

ing the government's privilege regarding policymaking

deliberations?! and factual and investigative matters have been

generally found to be disclosable even if other portions were

not.22

A second, closely related, element of the internal com-

munications privilege is the protection of the government

attorney's work product, and deliberations which, if in

the private sector, would fall within the attorney-client

privilege. In fact, Justice Reed analogized the policymak-

ing privilege recognized in Kaiser to the attorney-client

privilege. 157 F. Supp. at 946-47. Courts have determined

that intra-agency communications concerning litigation strat-

egy are sufficiently analogous to the attorney-client com-

munications to necessitate protection.*? Similarly, ''|t]he

31 See, e.g., Boeing Airplane Co. v. Coggeshall, 108 U.S. App.

D.C. 106, 280 F.2d 654 (1960) (policy recommendations made to

Renegotiation Board); O'Keefe v. Boeing Co., 38 F.R.D. 324 (S.D.

N.Y. 1965) (recommendations as to Air Force policy); Walled Lake

Door Co. v. United States, 31 F.R.D. 258 (E.D. Mich. 1962) (memo-

randa and reports pertaining to decision of the Interstate Commerce

Commission).

32 See, e.g, Machin v. Zuckert, 114 U.S. App. D.C. 335, 316

F.2d 336, cert. denied, 375 U.S. 896 (1963); Boeing Airplane Co.

v. Coggeshall, 108 U.S. App. D.C. 106, 112-13, 280 F.2d 654,

660-61 (1960); Carl Zeiss Stiftung v. V.E.B. Carl Zeiss, Jena, 40

F.R.D. 318, 327 (D.D.C. 1966), aff'd, 128 U.S. App. D.C. 10, 384

F.2d 979, cert. denied, 389 U.S. 952 (1957).

33 Carl Zeiss Stiftung v. V-E.B. Carl Zeiss, Jena, supra, 40 F.R.D.

at 323-25. See, e.g., Zacher v. United States, 227 F.2d 219, 226

(8th Cir. 1955), cert. denied, 350 U.S. 993 (1956) (recommenda-

tions to Attorney General regarding litigation decision); Clark

(continued)

work products of government attorneys are no less pro-

tected than those of private attorneys. ''>4

With regard to the issue of whether agency policy state-

ments and directives are discoverable, one commentator

ine CRE Sit

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has pointedly stated that "there are no Rule 26 cases dl-

rectly on the question," but has argued that ''a number of

considerations directly support the requirement that an

agency disclose the 'working law' which it follows in the

disposition of individual cases.'' Note, The Freedom of

Information Act and the Exemption for Intra-Agency

Memoranda, 86 Harv. L. Rev. 1047, 1058 (1973). Like-

wise, the Ninth Circuit has stated that Rule 26 cases de-

nying discovery of advisory opinions can be distinguished

as not involving recommendations adopted as policy. GSA

y. Benson, 415 F.2d 878, 881 (1969), aff'g 289 F. Supp.

590 (W.D. Wash. 1968).

However, the General Counsel has reliflitpon considered

dictum in Davis v. Braswell Motor Freight Lines, 363 F.2d

600 (Sth Cir. 1966), a case which antedates the effective

date of the Freedom of Information Act. The appellate

33 (continued) v. Pearson, 238 F.Supp. 495, 496 (D.D.C. 1965)

(advisory recommendations as to Justice Department action); United

States v. Six Lots of Ground, 27 Fed. Cas. 1097 (C.C. La. 1872)

(No. 16,299) (correspondence between Attorney General and district

attorney as to dismissing a writ of error).

34 Thill Securities Corp. v. New York Stock Exchange, 57 F.R.D.

133, 138 (E.D. Wis. 1972); cf. Hickman v. Taylor, 329 U.S. 495

(1947). Upon a showing of "substantial need" and "undue hard-

ship" a litigant can discover the materials prepared by an adversary's

attorney in preparation for trial, except for the attorney's "mental

impressions, conclusions, opinions, or legal theories." F.R. Civ. P.

26(b\3 ).

cP iB its a 8 DANE IM AD BR OD

BOD A tS EE Li OEP APIO SE:

court there held that the trial court should have quashed

a subpoena for advice memoranda — appeals memoranda

were not involved — because the subpoena had been issued

to the Regional Director rather than the head of the agency,

the General Coun i i

court then considered whether, under a proper subpoena

to a non-party agency,» the advice memoranda would be

subject to discovery, answering in the negative, by stating

that:

The asserted purpose of the subpoena was to un-

cover evidence concerning the Board's findings or

determinations, whether preliminary, temporary e

or final, on the status of the unions as represen-

tatives of the employees of Braswell. Under the

circumstances in this case, we conclude that this

objective cannot be satisfied in this manner and

that, therefore, the subpoena should have been

quashed. [/d. at 603 (emphasis added)}.

The court then quoted broad language from the Kaiser

and Morgan cases, concluding that there was a “quali-

fied privilege which, in the absence of special circum-

stances, shields it from examination by the public.”

363 F.2d at 60405 (footnote omitted). To the extent

that Davis deals with preliminary recommendations, it is

correct. But to the extent that it deals with final agency

decisions, it is, we submit, in error. Morgan and Kaiser,

35 Since exemption 5 allows withholding only of information

which would not be available in discovery "with the agency," it

is important to keep in mind that [t]he government is subject

to broader discovery in actions brought by or against it than in

those in which it is not a party." 4 J. Moore and J. Lucas, Fed-

eral Practice §26.60[6], at 26-25 (2d ed. 1974) (and cases cited

therein). \

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relied upon by the Davis court, did not deal with the question

of adopted policy, and the Davis court’s error resulted from its

failure to focus on that distinction.

One district court has, however, recently addressed the

agency law 1s i >

randa, concluding that "instructions to staff, and general

policy statements or interpretations by the IRS affecting

members of the public on the specific issue of deprecia-

tion" had to. be made available in discovery. Robins &

Wells, Inc. v. United States, 63 F.R.D. 73, 76-77 (M.D.N.C.

1974). While the court held that private letter rulings

and technical advice memoranda did not have to be made

available in that case because the plaintiff had failed both

to demonstrate their relevancy or materiaiity and to de-

scribe the requested documents with reasonable particular-

ity, it did not say that they were privileged. Jd. at 77.

In fact, ip a Freedom of Information Act context, these

IRS documents have: been found to be agency law, which

must be disclosed unless some exemption other than (b)(5)

is found to be applicable. Tax Analysts and Advocates v.

IRS, No. 73-1978 (D.C. Cir., Aug. 19, 1974), aff'g in part,

rev'g in part, 362 F. Supp. 1298 (D.D.C. 1973).

The validity of the determination that relevant statements

of agency policy, interpretations, and instructions to staff

adopted by the agency should generally be available in dis-

covery is supported ‘by consideration of the reasons for the

executive's qualified privilege for internal communications.

As the foregoing discussion revealed, the privilege is in-

tended to protect the free and frank flow of opinions

when policy-making officials must consult with subordinates

for advice. Distlosure of such ‘information might in som.

instances unduly subject subordinates to harsh criticisi..

which should rightly be aimed only at officials ultimately

BIW VARIES AAPL EGE TL ARP IEO TE

responsible for agency decisions, and, conversely, ‘disclosure

of agency working papers may actually mislead rather than

help the public because of their preliminary and changeable

character. See, ¢.g., Sterling Drug, Inc. v. F.T.C., 146 U.S.

App. D.C.. 144, 152, 448 F.2d 698, 706 (1971).

This balance. however, changes significantly when one

_considers policy, interpretations, or instructions to statt

which have already been adopted by the agency. Disclo-

sure of adopted policy should not inhibit agency discussion

because: (1) a staff member's career rewards from having

his recommendation adopted far outweigh any possible

detriment from resulting public criticism; and (2) criticism

for adopted policy will be aimed at the "agency.’’ not

individual staff members. On the other hand, the public's

need for access to adopted agency policy is acute. In ig-

norance of (or with unequal access, to) such policy. state-

ments, which are available only from the agency, parties

cannot intelligently frame their arguments. | Additionally,

public criticism of agency policy, as opposed to intra-

agency recommendations, and of inconsistent agency appli-

cation of such policy, should be encouraged.

This analysis demonstrates that the executive’ s ‘jntetaal

communications exemption applies only to advice and rec-

ommendations given on certain legal or policymaking mat-

ters. It includes adjudicatory and rulemaking decisions —

one cannot probe the. decisionmaker's mind — and it in-

cludes attorney-client and attorney work product informa-

tion. The privilege is intended to protect the deliberative

process whereby (sometimes controversial) policy is formu-

lated: it is not intended to protect policy decisions already

made. ~ ee ae

-C. Advice and Appeals Memoranda Are Agency Law

. Which Must Be Disclosed. :

Having thus concluded that final agency determinations

on legal and policy matters which affect the public must be

disclosed, we next consider whether advice and appeats

memoranda fit that description. Only if they do not fit

that description is it necessary to independently consider

whether, even though they are internal memoranda under

exemption 5, they should nevertheless be disclosed on the

ground that their production would not be '"'injurious to

the consultative function of government that the privilege

of non-disclosure protects."" Environmental Protection

Agency y. Mink, supra, 410 U.S. at 87, quoting Kaiser

Aluminum & Chemical Corp., 157 F. Supp. 939. 946 (Ct.

Cl. 1958). | '

In section 552(a)(2), Congress delineated three somewhat

overlapping categories of agency law which are not pro-

tected by exemption 5:77 : '

36 We thus respectfully suggest that if, in the tandem case, Rene-

_gotiation Board v. Grumman Aircraft Engineering Corp., No. 73-1316,

respondent Grumman is correct in its argument that the documents

it seeks are agency opinions (and we agree that it is correct), then

there is no reason to ask whether they are nonetheless within exemp-

tion 5 (Brief for Respondent 20), because Congress has excluded all

agency opinions from the coverage of exemption 5.

37 The General Counsel conceded below that in the performance

of his pre-complaint prosecutorial authority, he, or more correctly

the Office of the General Counsel, is an agency within the meaning

of 5 U.S.C. §551(1). (Pet. App. C, p. 6a n.4). We do not understand

him to dispute that fact at this late stage. In any event, that fact

seems indisputable: in making the final decision as to whether or not

a coniplainant can gain access to the NLRB, the General Counsel acts

as an “authority” of the Government and is therefore, an “avency.”

7 (continued )

Pruitt ="

(A) final opinions, includihg concurring and

dissenting opinions, as well as orders, made in

the adjudication of cases; .

(B) those statements of policy and interpre-

tations which have been adopted by the agency

and are not published in the Federai Register:'**)

and

tions to staff that affect a member of the pub-

lic.

Both Judge Corcoran in the district curt, and Judges Mil-

ler, Wright and Robb in the Court of Appeals, held that

advice memoranda were mandatory “instructions to staff"

and that appeals memoranda were "'final opinions’ in the

‘ adjudication of cases. We think that these determinations

are supported by the record, and that, in any event, the

advice and appeals memoranda are ''statements of policy

and interpretations which have been adopted by the agency

[the Office of the General Counsel] ." |

Much of the General Counsel's contrary argument is no

more than a war of semantics: another in the legion of

cases in which we have been involved where ''lawyer's

37 (continued) 5 U.S.C. §551(1). See Washington Research Pro-

ject, Inc. v. HEW, No. 74-1027, slip op. 11-17 (D.C. Cir., Sept. 12,

1974); Soucie v. David, 145 U.S. App. D.C. 144, 448 F.2d 1067

(1471).

38 The FOIA also requires publication in the Federal Register of

"statements of general policy or interpretations of general applicabil-

ity 1ormulated and adopted by the agency.” 5 U.S.C. §552(a1D)

(emphasis added). Thus section 552(a2B), quoted in the text, con-

cerns only policy statements and interpretations of limited or specific

applicability.

ECW

PENS SEEN ER. ENA EERE IO

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verbiage" given in affidavit form has transformed insignifi-

cant differences into major bones of contention. See, ¢.g.,

Ditlow v. Volpe, 362 F. Supp. 1321 (D.D.C. 1973), rev'd

as to a different issue, __ U. S. App. D.C..__, 494 F.2d

1073, cert. denied, 43 U.S.L,W. 3256 (Oct. 29, 1974) (No.

73-1780). For example, the General Counsel claims on the

one hand that advice and appeals memoranda are “not

used or cited as precedents'' (Pet. Br. 6), while on the other .

hand he states that all questions presenting "novel or com-

_ plex problems'’ are required to be submitted to the Gen-

eral Counsel's Division of Advice so that a uniform policy

can be created throughout the country (Pet. Br.. 4). How

a uniform policy can be created without the use of prece-

dent is difficult to fathom. Moreover, if they are not

used as precedent, it is mystifying ‘vhy the Division of

Advice bothers to either index its memoranda (Pet. Br. 6

n.5) or to refer to prior memoranda in later cases (Pet. —

Br. 5).

Similarly, the General Counsel says that he has delegated

to Regional Directors only the initial power to decide

whether to issue complaints (Pet. Br. 3), yet. he claims

that the "ultimate decision'’ on whether to file the com-

plaint lies with the Regional Director (Pet. Br. 6). More-

over, he has been able to cite no case in which Regional

Directors did not take the action directed in "advice"

_ . memoranda (Pet.. Br. 6). Finally, the General Counsel's

assertion — that in some cases where a memorandum di-

rects the issuance of a complaint, the memorandum "may"

discuss settlements (Pet. Br. 5) — is both irrelevant, since

the courts below said that such information could be de-

leted (Pet. App. C, pp. 9a, 10a), and circumspect, since

the General Counsel, who now makes all of these memo-

randa public at the end of a proceeding (Pet. Br. 10 n.12),

was not able in the district court to cite even one example

‘containing settlement advice.

1. Appeals Memoranda Are “Final Opinions” or “Orders,”

“Made In The Adjudication Of Cases”

Neither the House nor the Senate Reports lend much

light to the meaning of subsection (a)(2). The Senate Re-

port repeats the statutory language (S. Rep. 813, supra,

at 6-7), andthe House Report's elaboration is that: "the

bureaucracy has developed its own form of case law. This

law is embodied in the thousands of orders, opinions, state-

ments, and instructions issued by hundreds of agencies.

This is the material which would be made available under

subsection (b) of S. 1160."" H. Rep. No. 1497, supra, at

With this background, we must consider the words of the

Act — “opinions,” “‘order,” and “adjudication.” As has

been expl&ined by Professor Davis, these are much broader

concepts under the Administrative Procedure Act (APA) than

one not familiar with it might suppose. K. Davis, Administrative

Law Treatise 83A.8, at 128 (Supp. 1970). " ‘Order’ means

the whole or any part of a final disposition .. . of any

agency in any matter other than rulemaking but including

licensing,'' 5 U.S.C. 8551(6), and "' ‘adjudication’ means

agency process for the formulation of an order."' 5 U.S.C.

§551(7)._ An "opinion" is, of course, an explanation of, or

justification for, an order. Thus, under the applicable APA

definitions, every order is issued as part of the final disposi-

tion, affirmative or negative, of an adjudication. Therefore,

since advice and appeals memoranda are final dispositions

of the agency's duty to determine whether a complainant

may have access to the NLRB process, they are orders and

opinions in the adjudication of cases.

PORE aah Satan cepa has

NRA} Hs .

The General Counsel's contrary claim is dependent upon

significant omissions and the use of words with double

meanings. He asserts that: .

An appeal memorandum is not the "final disposi-

tion'’ by the agency of the unfair labor practice

complaint, since, in sustaining the appeal, the Gen-

eral Counsel has directed that a complaint be

filed and the adjudicatory process begin. [Pet.

Br. 45 n.33].

in the first place, this statement is dependent upon read-

ing the word ''agency"’ to mean the NLRB, omitting the

fact that the Office of the General Counsel is itself an

agency. Second, even reading agency to mean NLRB,

the decision not to file a complaint is certainly a "final

disposition" cutting off all access to the Board's processes.

39 In fact, from the public's standpoint those advice memoran-

da which instruct the regional director not to issue a complaint

may be the most important of all the documents sought, especially

since appeals memoranda are no longer written in cases affirming

a decision not to file a complaint (A. 94-95; Pet. Br. 7). Cer-

tainly, absent an appeal to the General Counsel, an advice memo-

randum is the final disposition of the case. In fact, while a charg-

ing party may as a general rule stand about a 1 in 20 chance of

securing a reversal by the General Counsel on appeal (Op. App. A

15), his chances are. despite the apparent success of Sears in this

particular case, a great deal slimmer where the Division of Advice

has already decided that no complaint should issue, especially

since the General Counsel or an immediate subordinate participates

in the decisions in both advice and appeals cases. Most certainly,

an advice memorandum which orders the dismissal of a case does

not contain settlement strategies or the like since there is nothing

to settle. While in a case where a complaint is filed, the public

may eventually be able to discern the reasons for the General

Counsel's decision from his presentation before the Board, no such

e (continued)

Conversely, the decision to file a complaint is the final dis-

position of the issue of whether the Board's processes shall

be available to a complainant. Finally, the General Coun-

sel's reasoning is circular in that he says that an appeal

memorandum is not a final disposition because the adjudica-

tory process has not begun, whereas the question of whether

the adjudicatory process has begun hinges on whether the

General Counsel's action is a “final disposition.”

The General Counsel's appeals memoranda are orders, and

opinions explaining those orders, made in the adjudication

of cases which have far too long been cloaked in sécrecy.

As the General Counsel himself admits, their disclosure

"produces a better informed labor bar and public and

affords me the opportunity to receive comments on my

action."" (Pef. Br. 46 n.34, quoting A. 150).

2. Advice And Appeals Memoranda Are Statements Of

Policy And Interpretations Which Have Been Adopted

By The Agency.

Subsection (a)(2)(B) — "those statements of policy and

interpretations which have been adopted by. the agency" —

on its face is the broadest and clearest of the categories

of agency law which must be made available to the public.

Policy statements or interpretations are not limited to those

39 (continued) opportunity ever occurs when a complaint is not

filed. Further, when the Washington Office decides a novel question,

it creates a new national policy of which the public should be ap-

prised. It is no answer to say that, under the pressure of this liti-

gation, the General Counsel has begun to make available advice and

appeials memoranda in closed cases (see Pet. Br. 10 n.12) because, if

this was merely a discretionary decision, a less benevolent General

Coumsel might in the future reverse that policy on the ground, for

example, of administrative convenience.

;

heres

made in adjudication, since then they would be part of

an (a)(2)(A) opinion, and (a)(2)(B) would be superfluous.

Neither are they limited to those policy statements and

interpretations used as precedent — in fact, if they are

used as precedent, they must be published in the Federal

and Advocates v. IRS, 362 F. Supp. 1298, 1303-04 (D.D.

C. 1973), aff'd in part, rev'd in part on other grounds, No.

73-1978 (D.C. Cir., Aug. 19, 1974); K> Davis, supra, at

130.

With regard to legislative history, the Senate committee

once again restated the words of ihe Act without explana-

tion or qualification, presumably with the intent that the

words of the Act should be given their plain meaning.

S. Rep. No. 813, supra, at 6. The House Committee, on

the other hand, grouped together ''statements of policy, inter-

pretations, staff manuals and instructions," stating that

"I t]his material is the end product of Federal .administra-

tion. It has the force and effect of law in most cases,

yet under the present statute [old Section 3 of the APA]

these Federal agency decisions have been kept secret-from

the members of the public affected-by the decisions.'’ H.

Rep. No. 1497, supra, at 7.4° Curiously, this ''statement

40 The same report somewhat qualifies the above statement by

adding that "an agency may not be required to make available . . .

any advisory interpretation on a specific set of facts which is re-

quested by and addressed to a particular person, provided that such

intcrpretation is not cited or relied upon by any officer or employee

of the agency as a precedent in the disposition of other cases. /d.

(emphasis added). Since the term "person" excludes agency personiiel

(5 U.S.C. §551(2)), this qualifying statement is inapposite to the facts

of this case where interpretations are addressed to Regional officials

of the General Counsel's Office. In any event, the accuracy of this

statement, which appears to conflict with the Senate report, is

(continued)

is in the form of a statement of fact, not a statement of

intent, and as a statement of fact it seems clearly mistaken;

interpretations are made not only as the end product of

administration but at any interim stage of administration."

K. Davis, supra, at 135. Many interim interpretations —

é.g., an administrative law judge's opinions, decisions based

on interpretations of the law to prosecute A and not B,

or to settle with C and not D — are effectively the law.

Private parties affected by such agency law should be en-

titled to have access to it. Thus, this Court should accept

the literal words of the statute, as repeated in the Senate

report, rather than the somewhat ambiguous "end product"

statement written into the House report. Tax Analysts and

Advocates v. IRS, supra, 362 F. Supp. at 1304.

Statements of agency policy and interpretations such as

those contained in advice and appeals memoranda are not

in any way preliminary views, but rather are the working

law of the agency. As such they are exactly the type of

agency directives which Congress required to be made pub-

lic. Not only will disclosure lead to better justice because

affected parties will have a chance to know the agency's

law, but public criticism aimed mainly at the agency which

has adopted the policy, should have a salutary effect.

40 (continued) questionable. See K. Davis, supra, 131-32. Several

courts have stated that the House report "represents the thinking of

only one house, and to the extent that the two reports disagree, the _

surer indication of congressional intent is to be found in the Senate :

report, which was available for consideration in both houses." Ben-

son v. GSA, 289 F. Supp. 590, 595 (W.D. Wash. 1968), affd on 3

‘other grounds, 415 F.2d 878 (9th Cir. 1969). Accord, Getman v. :

NLRB, 146 U.S. App. D.C. 209, 212, n.8, 450 F.2d 670, 673 n.8 é

(D.C. Cir.), stay denied, 404 U.S. 1204 (1971); Tax Analysts and re

Advocates v. IRS, supra, 362 F. Supp. at 1304; Consumers Union f

v. Veterans Administration, 301 F. Supp. 796, 801 (S.D.N.Y. 1969), §

appeal dismissed as moot, 436 F.2d 1363 (2d Cir. 1971).

LOB EER IEE SRE FOIL IER LONE SLR LOE TY LEBER NE ELIE YMRS ESLER HA I deat coir em

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3. Advice Memoranda Are Administrative Instructions

To Staff That Affect A Member Of The Public

Subsection (a)(2)(C) requires every agency to make

available for public inspection “administrative staff manu-

als and instructions to staff that affect any member of

the public.” As pointed out by the General Counsel

(Pet. Br. 42), an earlier version of the bill did not con-

tain the word “administrative.” It was inserted by the

Senate committee which explained the addition of the

word as follows:

The limitation of the staff manuals and in-

structions affecting the public which must be

made available to the public to those which

pertain to administrative matters rather than

to law enforcement matters protects the tra-

ditional confidential nature of instructions to

Government personnel prosecuting violations

of law in court, while permitting a public ex-

amination of the basis for administrative

action [S. Rep. 813, supra, at 2.

From this statement, the General Counsel concludes that

instructions regarding “administrative matters” must be

made public, but that instructions regarding “law enforce-

ment matters” may be kept secret (Pet. Br. 43), a dichot-

omy which appears plausible. 41 But the General Counsei’s

assertion that advice memoranda, which deal with admin-

istrative enforcement of law, may therefore be withheld

41 the General Counsel’s simultaneous arguments that advice and

appeals memoranda do not concern ‘administrative matters” (Pet

Br. 43), but that they are nonetheless “related solely to the inter-

nal personnel rules and practices of an agency,” 5 U.SC. §552(b)(2)

(Pet. Br. 37), is incongruous to say the least.

is not plausible because the Senate committee explicitly

explained that by law enforcement matters it referred to

“prosecuting violations of law in court.” The dichotomy,

it thus turns out, is between enforcement in court and en-

forcement in an agency. While the wisdom of Congress’

action may be questioned in some particular cases, the

Senate report leaves no alternative.

While the explanation given in the House report contra-

dicts the Senate’s interpretation, it also contradicts the

words of the statute since it would allow withholding of

a great deal of policy information which seriously affects

the public: ‘tan agency may not be required to make

available those portions of its staff manuals and instructions

which set forth criteria or guidelines for the staff in audit-

ing. or inspection procedures, or in the selection or handling

of cases, such as operational tactics, allowable tolerances,

or criterie for defense, prosecution, or settlement of cases.”

H. Rep. No. 1497, supra, at 7-8. This statement, which

would allow withholding of substantive and procedural

agency law contained in staff manuals or instructions to

staff, would take back most of what the words of the

statute gave. For example, under the House committee’s

interpretation, IRS staff manuais and instructions to staff

would not be available to the public, but the courts have

held otherwise. Hawkes v. IRS, 467 F.2d 787 (6th Cir.,

1972): Long v. IRS, 349 F. Supp. 871 (W.D. Wash. 1972);

Long v. IRS, 339 F. Supp. 1266 (W.D. Wash. 1971). The

House report’s language is an apparent attempt to amend

the Act, already passed by the Senate, without changing

the words of the statute. This Court should reject that

attempt.

_Two courts of appeals, apparently finding the confusion

caused by the Committee reports to be hopeless and

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rejecting the consequences of a literal reading of the statute

as unacceptable, have adopted a third course. In Hawkes

vy. IRS, 467 F.2d 787, 795 (6th Cir., 1972) and Stokes

v. Brennan, 476 F.2d 699, 701 (Sth Cir., 1973), these

courts concluded that Congress intended that staff manu-

als and instructions to staff should generally be disclosed,

but that a limited exception would be recognized allow-

ing deletions “to bar disclosure of information which, if

known to the public, would significantly impede the en-

forcement process.” /d. In explanation, the Stokes court

quoted the following language from the Hawkes opinion:”

Law enforcement is the process by which a

society secures compliance with its duly

adopted rules. Enforcement is adversely

affected only when information is made

available which allows persons simultane-

ously to violate the law and to avoid de-

tection. Information which merely enables

an individual to conform his actions to an

agency’s understanding of the law applied

by that agency does not impede law en-

forcement and is not excluded from com-

pulsory disclosure under (a)(2)(C).

Far from impeding the goals of law en-

forcement, in fact, the disclosure of infor-

mation clarifying an agency Ss substantive

or procedural law serves the very goals of

enforcement by encouraging knowledgeable

and voluntary compliance with the law.

Such clarifying information . . . may be

found in the criteria for investigative action;

in standards for evaluation and so forth.

Materials providing such information are

administrative in character and clearly disclose-

able under (a)(2)(C). [/d. (emphasis in original;

footnote omitted)].

This, in fact, appears to be the course taken by the

district court in this case 4s it ordered disclosure of the

advice and appeals memoranda but allowed the deletion

of “the names of affiants, and settlement suggestions

from the Office of the General Counsel to the regional

directors.” (Pet. App. C, p. 9a). This result will allow

the General Counsel to withhold, until trial, the identity

of informers and his settlement strategy. But there is no

reason to go further in order to keep ‘secret the General

Counsel’s instructions concerning his interpretations of the

law. In fact, the one thing which the legislative history

of subsection 552(a)(2) does make clear is that Congress

intended to force agency statements and interpretations of

legal and policy matters into public view. Congress em-

braced the view, later stat

law is an abomination.” K. Davis, supra, Pp. 137.

D. Advice And Appeals Memoranda Should In

Any Event Be Released Because Disclosure

Will Not Injure The Consultative Functions Of

' Government

The Freedom of Information Act mandates disclosure of

U.S.C.

all identifiable records not specifically exempted, 5

§552(a)(3). Thus, even if advice and appeals memoranda

were not required by 5 U.S.C. §552(a)(2) to be made

publicly availa

cause the General Counsel has failed to carry h

of proving the applicability of any exemption.

is burden

spect, defendant’s reliance upon exemption 5 is misplaced

ed by Professor Davis, that “secret

canes o8

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because advice and appeals memoranda do not fall within

the Congressionally recognized scope of that exemption

and because disclosure would not harm the “consultative

functions” of government. See Environmental Protection

Agency v. Mink, supra, 410 U.S. at 87. Courts have

generally allowed withholding under exemption 5 only

of legal or policy-formative advice, and we suggest that

the cases define the proper limits of the exemption. In

addition, the fact that the General Counsel himself now

makes all of the memoranda available when a proceeding

- js closed (Pet. Br. 10 n.12) indicates that no significant

inhibition to agency policy deliberations would result

from their disclosure at a time when they may still be

useful to litigants in that and other pending proceedings.

In Environmental Protection Agency Vv Mink, supra,

410 U.S. at 93, 89, this Court recognized that the pur-

pose of the fifth exemption is to permit frank discussion

of policy matters, in agency deliberations, and concluded

that, since protection of purely factual or investigative

materials was not necessary to further this purpose, such

materials should be disclosed. 42 In reaching this conclu-

sion, it accepted the District of Columbia Circuit’s state-

ment that any factual material not inextricably “‘inter-

twined with policymaking processes” must be disclosed if

42 While the pending amendments to the FOIA would explicitly

- override this Court’s decision in the Mink case with regard to the

national security exemption (5 U.S.C. §552(b)\1)), they will not.

affect the portion of that decision dealing with the (b)(5) internal

policymaking exemption, except to make clea: Congressional agree-

ment with this Court’s statements that non-exempt, segregable por-

tions of agency records must be separated and disclosed. See H.

Rep. 93-1380, supra, at 4, Sa :

AG A AO NA OLB A LATE Dig Hie A A EAU

that can be done “without impinging on the policymaking

decisional processes intended to be protected by this ex-

emption.” Jd. at 92, quoting 150 U.S. App. D.C. 223,

237, 238, 464 F.2d 742, 746, 747 (1973). It also stated

that the agency should be given the opportunity to prove

by affidavits or other evidence that particular documents

fell within the protected policy-formative category and con-

tained no separable, factual information. 410 U.S. at 92.

The factual/policymaking test of Mink has been more

fully developed by the D.C. Circuit in the case being argued

in tandem with this one, Grumman Aircraft Engineering

Corp. v. Renegotiation Board. 157 U.S. App. D.C. 121, 482

F.2d 710 (1973), cert. granted, 94 S.Ct. 2603 (1974), 8

and in Montrose Chemical Corp. v. Train, ___ U.S. App.

DL... aa F.2d 63 (1974). Using a method of analy-

sis very similar to that used by this Court in Mink, the

D.C. Circuit in Grumman recognized that “[p]rotecting

the confidentiality of advice given during governmental

deliberations prior to actual promulgation of policy is, of

course, eminently sensible,” but that “the case for apply-

ing the privilege, and thus the exemption, is markedly

weaker where the documents at stake are not solely part

of the consultative and deliberative process, but rather rc-

flect actual decisions communicated outside the agency.”

: 43 We note that the Government’s Supreme Court brief in Grum-

man reveals that its challenge is apparently not to the Circuit Court’s

statement of the law, but rather to its application in the Renegotia-

tion process — a process whose peculiar features led toa reversal

in Renegotiation Board v. Bannercraft Clothing Co., Inc., 415 US.

i (1974). In Grumman, however, the Renegotiation Board’s changes

of procedures, and decision to begin publishing opinions, have nar-

rowed the issue to a dispute about the finality of the Regional

Board’s reports under prior practice.

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482 F.2d at 718. See K. Davis, supra, at 159, The D.C.

Circuit thus concluded that “a distinction must be drawn

between documents composed exclusively for purposes of

assisting policy formulation and those which serve to te

flect policy already made and announced.” 482 F.2d at

719 (footnote omitted). Therefore, Regional Renegotia-

tion Board reports, whose purpose the Court found was

to support the agency’s decision, had to be disclosed.

Similarly here, the. General Counsel communicates to the

parties the decisions made in advice and appeals memoranda,

but he refuses to reveal the policy statements reflected in

those memoranda which give the reasons for his decision.

In another carefully reasoned opinion, the D.C. Circuit

in the Montrose Chemical Corp. “ase further developed

the exemption 5 test. It held that summaries of factual

information, prepared by the staff of the Environmental

Protection Agency solely to aid the Administrator in mak-

ing a decision in a complex adjudicatory proceeding for

cancellation of DDT registrations, were part of the de-

liberative process protected by exemption 5, where all of

the facts were on the public record and the Administator

explained his decision in a 50 page opinion. 491 F.2d

_ at 64-65, 68. Looking to the purpose behind the exemp-

tion and relying heavily upon the Morgan cases (see pp. 21-22,

supra), the Court declared “that the purpose of exemption

5 is not simply to encourage frank intra-agency discussion

of policy, but also to ensure that. the mental processes of

decision-makers are not subject to public scrutiny.” Id.

at 70 (footnote omitted). In other words, deliberations

in the course of making adjudicatory decisions or of for-

mulating policy are protected whether or not the particu-

lar materials contain overt recommendations on policy, 4

result seemingly compelled by the legislative history of the

FOIA (see px 16, supra 44 Thus. in this case, if Sears were

seeking the preliminary drafts of advice and appeals memo-

randa, Montrose would apply, but here Sears is seeking

only the advice and appeals memoranda themselves. Since

the memoranda are the functional equivalent of the Ad-

ministrator’s 50 page final opinion, they should be dis-

closed.

The dichotomy between deliberative, policy-formative

documents on the one hand, and finalized or decisional

documents on the other hand, has also been recognized in

other judicial circuits. For example, in Tennessean News-

papers, Inc. v. FHA, 464 F.2d 657, 660 (1972), the Sixth

Circuit distinguished betwee documents containing expres-

sions of “preliminary views,” opinions, and recommenda-

tions made during agency policy deliberations, which fall

within exemption 5, and documents that are “finished

_ work product” or final reports, which must be disclosed. %

44 The Montrose court indiéated that there might be a distinction

between situations “where all facts are already on the record,” and a

situation “(w]here the factual material is not already in the public

domain.” 491 F.2d at 71. i

45 Accord, Philadelphia Newspapers, Inc v. HUD, 343 F. Supp.

1176 (E.D. Pa. 1972); see GSA v. Benson, 415 F.2d 878 (9th Cir.

1969).. See also Sterling Drug, Inc. v. FTC, 146 U.S. App. D.C.

237, 243, 450 F.2d 698, 704 (1971) (“internal working papers in

which opinions are expressed and policies formulated and recom-

mended” may be withheld, except for factual portions): haternational

Paper Co. v. FPC, 438 F.2d 1349, 1359 (2d Cir)., cert. denied, 404

US. 827 (1971) (documents withheld “were merely preliminary inter-

agency memoranda, compiled preparatory to the formulation of the

Commission’s final decisions”). Bur compare.Washington Research

Project, Inc. v. HEW,,No. 74-1027 (D.C. Cir, Sept. 12, 1974) (“evalu-

ative” reports regarding grant applications are protected by exemp-

tion 5) with Soucie v. David, 145 US, App. D.C. 144, 147, 448

(continued)

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Likewise, advie,and appeals memoranda, which are ‘ssued

after careful examination and consideration, are neither

preliminary nor deliberative, and they are not concerned

with recammending poli@@alternatives, but only with in-

forming the Regional Office of what the agency’s policy

is.

Thus, the recommendations of a law clerk concerning

a case in agency adjudication, a document containing the

advice of a trial attorney to his section chief as to whether

a case should be appealed, or a staff recommendation sug-

gesting which of two alternative policies should be adopted,

would generally be exempt. But those.situations do not

describe this case. Advice and appeals memoranda are

not compiled by law clerks, by trial attorneys, or by staff

members requested to aid an administrat’r in formulating

policy.

Although the General Counsel refers to these memoranda

as “prelin¥nary” and as containing merely his “mental im-

pressions” (Pet. Br.-23) — through his staff attorneys — .

' the fact is that these memoranda generally go through

45 (continued) F.2d 1067, 1070 (1971) (remanded for deter-

mination. of whether ex€mption 5 applied to “the Garvin Report,

which evaluates the Federal Government’s program for development

of a supersonic ‘transport aircraft (SST)”) and Vaughn v. Rosen,

157 U.S. App. D.C. 340, 484 F.2d 820 (1973), cert. denied, 415

U.S. 977 (1974) (remanded to determine whether “evaluations of

certain agencies’ personne! management programs” are within ex-

emption 5). On remand, the district court in Vaughn ordered dis-

closure of all but a small proportion of the Civil Service reports

sought on the ground that they.were not advisory opinions or policy

recommendations but instead documents which adhered to policy

already made. Vaughn v. Rosen, Civ. No. 1753-72, slip. op. 5-7

(D.D.C., Oct. 9, 1974).

several drafts before reaching the final form wh ch is trans-

mitted .to the Regional Offices. They do not consist of

the type of quick comments or preliminary, subjective

views which exemption 5 was intended to protect. They

are documents produced by supervisory personnel whose

job is to decide whether a party should be permitted access

to the process created by Congress to handle labor disputes.

We do not contend that suggestions moving from 2 super-

visor to a subordinate need be disclosed, but that agency

directives which affect the rights of members of the pub-

lic, and which by definition move from supervisor to sub-

ordinate, should be disclosed upon request. See, ¢g., Stern

v. Richardson, 367 F. Supp. 1316 (1973). Although pre-

pared by attorneys, advice and appeals memoranda are the

agency’s basic guidelines to its field offices in the handling

of cases involving private parties, and as such they are

something altogether different from the work product of a

private attorney.

In the courts below, as in almost every case under ex-

emption 5, the claim was made that disclosure of these

memoranda would inhibit evaluators and make them less

’ candid, thereby thwarting the purpose of the exemption.

But this argument proves too much, for the same can be

said of every piece of paper reflecting the ideas or views

of a government employee, yet every such document is

not immune from disclosure. Exemption 5 has not been

construed so broadly, but has been applied only in the

narrow area of policy formulation in its preliminary stages.

Since advice and appeals memoranda are neither prelimi-

nary nor recommendatory, but are final and decisional, they

are not exempt from mandatory disclosure.

Furthermore, since any inhibiting effect that disclosure

might have upon agency deliberations will result whenever

ROM eo?

participants know that their views will be made public in

the foreseeable futére, the fact that the General Counsel

himself now discloses all of these- memoranda at the close

of proceedings (Pet. Br. 10 n.12) indicates that disclosure

upon transmittal to the Regional Offices will not inhibit

agency discussions. See M.A. Schapiro & Co., Inc. v.

SEC, 339 F. Supp. 467, 469 (D.D.C., 1972). While the

General Counsel may believe that there are other reasons

for secrecy, they are not reasons recognized by Congress

in the fifth exemption. There is simply no basis for con-

cluding that disclosure here will injure the ‘‘consultative

functions” of government. See Environmental Protection

Agency v. Mink, supra, 410 U.S. at 87.

Finally, immediate availability of advice and appeals

memoranda will clarify the law, focus th: arguments of

litigants before the NLRB, and, by increasing the public’s

knowledge of the General Counsel’s views, will encourage

voluntary compliance. Also, the benefits which convinced

the General Counsel to make these memoranda available

at the close of a proceeding — greater public understand-

ing, trust, and criticism of the General Counsel’s policies

(Pet. Br. n.34) — will be even greater if the public learns

of the General Counsel’s. positions at a time when public

comments may still have some effect.

In short, nothing in the legislative history, the policies

behind exemption 5, or the relevant authorities would

permit the General Counsel to withhold advice and appeals

memoranda, and there are substantial reasons why they

should be immediately made available to the public.

CONCLUSION

For the foregoing reasons, this Court should affirm the

judgment of the court of appeals.

Respectfully submitted,

ALAN B. MORRISON

LARRY P. ELLSWORTH

Suite 700

2000 P Street, N.W.

Washington, D.C. 20036

(202) 785-3704

¥ Counsel for the Freedom of

Information Clearinghouse,

Amicus Curiae

November, 1974.

Beeeserrerece

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.