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

Supreme Court brief1975

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IN THE

Supreme Court of the United States

Ocrosper Term, 1974

No. 73-1233

NATIONAL Laspor RELATIONS Boarp and

* Perer G. Naso, GENERAL COUNSEL,

Petitioners,

—vV.—

Sears, RoepucK anp Company,

Respondent.

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

BRIEF FOR AMERICAN CIVIL LIBERTIES UNION

AND CONSUMERS UNION OF UNITED STATES, INC.

AMICI CURIAE

CaroL A. CowGILL

Peter H, Scuuck

Consumers Union of United

States, Inc.

1714 Massachusetts Avenue, N.W.

Washington, D.C. 20036

Marvin M. KarpaTKIN

1345 Avenue of the Americas

New York, New York 10019

Metvin L. Wuur

JoHN H. F. SHattruck

American Civil Liberties Union

22 East 40th Street

New York, New York 10016

Attorneys for Amici Curiae

TABLE OF CONTENTS

Page

INTEREST OF AMICI ........ 1

STATUTE INVOLVED. ........ 2

QUESTION PRESENTED. ....... 2

DECISIONS BELOW... . 3

STATEMENT OF THE CASE... .... 5

Summary of Argument ....... 8

Argument

I. The General Counsel Is An

Agency Subject to the

Public Disclosure Require-

ments of the FOIA ..... 9.

II. Advice and Appeals Memo-

randa Are Final Opinions

and Orders. .....+... 10

TII. Advice and Appeals Memo-

randa Are Not Intra-Agency

Memoranda That May Be

Withheld Under Exemption 5. 16

IV. Advice and Appeals Memo-

randa Are Statements of

Policy and Interpretations. 20

V. Advice and Appeals Memoran-

da Are Instructions to

Staff That Affect Any

Member of the Public. ... 2]

CONCLUSION. . « «© 6 © © «© © © «© @ 29

TABLE OF AUTHORITIES

Cases . Page

American Mail Line Ltd. v. Gulick.

Wil F.2d 696 (D.C.Cir. 1969). 15, 18

Balanyi v. Local 1021, Interna-

t'l Bro. uf Electrical Wkrs.,

374 F.2d 723 (7th Cir. 1967). .13n

Bristol-Myers Corp. v. F.T.C.

424 F.2d 935 (D.C.Cir. 1970),

cert. denied, 400 U.S. 824

(1970). ... . . . 18

Cuneo v. Schlesinger, 484 F.2d

1086 (D.C.Cir. 1973). . . « « « 9s 24

Consumers Union v. Veterans

Administration, 301 F.Supp.

796 (S.D.N.Y. ee ier appeal

dismissed as moot, F.2d

1363 (2d Cir. oot * s ee

Environmental Protection Agency |

v. Mink, 410 U.S. 73 (1973) . .11

Getman v. N.L.R.B., = F.2d a

(D . Gy Cir - 1971) : a & a:

Grumman Aircraft Engineering Corp.

v. Renegotiation Board, 482

F.2d 710 (D.C.Cir. 1973), cert.

ranted ay “ Ag No.73-

1316. ss « « By i2es 2 eas

Grumman pncnekt Niguieeeine cone:

v. Renegotiation Board, 425

P.26 575 (D.C.Cir. 1970). « +19

Hawkes v. I.R.S., 467 F.2d sal

- (6th Cir. 1972) .... eres |

Pacific Architects and Engineers

Incorporated v. Renegotiation

Board, No. 73-2093 (D.C.Cir.,

decided October 8, 1974). .+..49

‘ ws

Soucie v. David, 448 F.2d moet

(D.C.Cir. r. 1973). ;

fee tgs Inc. v. F.T.C.

450 F.2d 696 (D.C.Cir. r. 1971)

Stokes v. Brennan,476 F.2d ee

(5th Cir. r. 1972). ; ‘

Tax Analysts and Advocates v.

— I.R.S., No. 73-1976 (D.C.Cir.

August 19, 1974) .

Haeyie v. Rosen, 484 F.2d 820

D.C.Cir. 1973), cert. denied,

94 S.Ct. 1564 (1974) .

Statutes and Policy Procedure

Administrative Procedure Act,

5 U.S.C. $551. #2 « « « « 9s

Freedom of Information Act,

5 U.S.C. §552. . . «.

National Labor Relations Act,

29 U.S.C. §151 et seq. .. .

National Labor Relations Board

Statements of Procedure,

$101'.8 . ° . . . . . .

Miscellaneous

Davis, Administrative Law

Treatise’. . . « « © « «© « e

H.Rep. No. 1497, 89th asia :

2d Sess. (1966). — : * %

- National ‘Labor Relations Board

Report for the Fiscal Year

Ended June 30, 1972 ....

- 9-10

- 15,17

. 24

- ll

9; 18

10-lln, 14

- passim

. 3n

11, 14- -15, |

18--19, 20°

- 12

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

lst Sess. (1965)... 2... . .12, 23

Testimony of NLRB General

Courfsel, June 29, 1961 before

—~tnhe House Labor Subcommittee

(Op.App. 1-15) (reprinted at

1CCH Labor Law neporter,

§1150.01) ... ee + we « « «Oh 20,e)

In The

4 SUPR COURT OF THE UNITED 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 AMERICAN CIVIL LIBERTIES UNION

AND CONSUMERS UNION OF UNITED oi INC.,

AMICI CURIAE

INTEREST OF AMICI?/

ae American Civil Lioerties Union is a

nationwide, non-rartisan orvanization of

more than 250,900 members dedicated solely

to the preservation of the liberties safe-

guarded by the Bill of Rights. During its

fifty-four year existence the ACLU has been

particularly concerned with the freedoms

protected by the First Amendment to the

Constitution, and in recent years it has

represented numerous citizens requesting

disclosure of information from executive

agencies of the Government under the Freedom

of Information Act.

Consumers Union of ‘United States, Inc.

("Consumers Union") is a nonprofit member-

ship organization chartered in 1936 under

the laws of the State of New York to pro-

vide information, education, and counsel

about consumer goods and services and the

management of the family income. Consumers

Union's income is derived solely from the

sale of Consumer Reports (magazine and TV)

and other publications. Expenses of occa-

Sional public service efforts y be met,

in part, by nonrestrictive, nontommercial

grants and fees. In addition to reports on

Consumers Union's own product testing,

Consumer Reports, with its 2.2 million

circulation, regularly carries articles on

health, product safety, marketplace eco-

nomics, and legislative, judicial and

regulatory actions which affect consumer

welfare. Consumers Union's publications

carry no advertising and receive no commer-

cial support. ,

1/7 Letters from both of the parties, con-

senting to the submission of this brief,

have been filed with the Clerk.

In connection with its product testing,

publishing, and other activities, Consumers

Union frequently requests information from

government agencies. The first lawsuit under

the Freedom of Information Act was brought

by Consumers Union to obtain hearing aid

test data and scoring methodologies from the

Veterans Administration. Consumers Union v.

Veterans Administration, 301 F.Supp. 796

(S.D.N.Y. 1969), appeal dismissed as moot,

436 F.2d 1363 (2d. Cir. 1971). Soon there-

after, Consumers Union made a pai sicularly

helpful contribution as amicus curiae in a

FOIA appeal brought by the National Labor

Relations Board. See, Getman v. N.L.R.B.,

450 F.2d 670, 673, n.25 (D.C.Cir. 1971).

The public's right to know the bases and

criteria for decisions made by government

agencies is inherent in our system of gov-

ernment. The Freedom of Information Act was

passed by Congress to ensure that the public

would be able to know how executive agencies

were discharging their functions. Amici

Curiae believe that this case and its com-

panion, Renegotiation Board v. Grumman

Aircrafc Engineering Corporation, No. 73-

1316, present important questions concern-

ing the reach of the Act to prevent the

development of "secret law" by administra-

tive agencies.

STATUTE INVOLVED

The provisions of the Freedom of Infor-

mation Act, 5 U.S.C. §552, are reproduced

at pp. 53-56 of the appendix to petitioners'

brief.

QUESTION PRESENTED

Whether the Freedom of Information Act

requires disclosure of the General

Counsel's finai-opinions in advice and

appeals cases.

DECISIONS BELOW

The instant FOIA litigation arose out of

an unfair labor practice charge filed by

Sears which generated both an advice memo-

randum ordering dismissal of the charge, and

an appeals memorandum reversing the latter

and ordering the Regional Director to issue

a complaint .2 During the administrative

2/All charges under the National Labor Rela-

tions Act (29 U.S.C. §151, et seq.) are

filed with one of the Board's 31 Regional

Directors to whom the General Counsel has

delegated his authority to decide whether

complaints shall issue. However, to insure

a uniform prosecutorial policy, all unfair

labor practice charges presenting novel

legal or policy issues are referred to the

Advice Branch of the Office of the General

Counsel for initiai disposition. N.L.R.B.

Statements of Procedure, §101.8. In such

cases, the General Counsel's decision to

issue a complaint or dismiss the charge is

explained in a written opinion referred to

as an advice memorandum.

A Regional Director's refusal to issue

an unfair labor practice complaint, whether

pursuant to an advice memorandum or not,

may be appealed by the charging party to the

General Counsel's Office of Appeals. If the

Regional Director is reversed, the General

Counsel's decision is announced in a writ-

ten opinion which also "sets forth the

reasons why a complaint should issue...."

(Pet.Br., p.8) The opinions issued in

.appeals cases are referred to as appeals

memoranda. If the Regional Director's deci-

sion not to issue a complaint is sustained,

no opinion is prepared. (Pet. Br., p.7)

proceedings on the Labor Act charge, Sears

filed suit under the FOIA--naming as defen-

dants_both the National Labor Relations

Board2’ and its General Counsel--sand ulti-

mately secured a court order darecting the

de‘endants to disclose and index all appeals

and advice memoranda issued by the General

Counsel since July 4, 1967, the effective

date of the FOIA; to produce any documents

incorporated by reference in said memoranda

as well as any necessary explanatory

material; and to cease his practice of

deleting material (such as citations to

prior cases) from disclosed advice and

appeals memoranda without providing any

written justificaticn for the deletions,

except that deletions of settlement instruc-

tions and names of affiants could continue

to be made without wrivten justification.

346 f SUPP - at 755; Pet. App. C, pp.9a-

10a.4/ In its opinion, the District Court

held that the requested memoranda were

instructions affecting the public and

final opinions required under 5 U.S.C.

§§552(a)(2)(C) and (A), respectively, to be

indexed and made available to the public,

and that they were not internal memoranda

exempt under §552(b)(5). Pet. App. C, pp.

7a and 9a. The court of appeals affirmed,

without opinion, in a percuriam decision

citing the district court's opinion and the

3/ The General Counsel's motion to dismiss

the Board as an improper party, based on the

argument that tne Office of the General

Counsel is an independent agency, was denied.

4/ “"Pet.App." refers to the appendix to the

petition for writ of certiorari; "Pet. Br."

to Brief for the Petitioners; "Op. App." to

the appendix to the Brief for Respondents,

and "A." to the separate apper.dix printed

pursuant to Rule 36. .

recent decision in Grumman Aircraft Engi-

neering Corp. v. Renegotiation Board, 452

F.2d 710 (D.C.Cir. 1973), cert. granted, May

28, 1974, No. 73-1316, Pet. App. A., pp.

la-2a. This Court has set Grumman for oral

argument i1 tandem with the instant case.

STATEMENT OF THE CASE_

Amici adopt as their own the detailed

statement of the case presented in respon-

dent's brief. Certain facts abouf€ the

General Counsel's advice and appeals pro-

cedures are especially pertinent to the

resolution of the legal issues in the in-

stant FOIA case. Briefly summarized, those

facts are:

1. Petitioners concede that the

General Counsel is an independent

agency possessing the unreviewable

power to decide which unfair labor

practice cases shall be heard by

the National Labor Relations Board.

346 F.Supp. at 753, n.4; Pet. Br.,

p.3. As the threshhold decision-

maker--the sentry at the Board's

gates--the General Counsel wields

enormous power to affect the ~ /

direction of national labor policy .2

2. In the interest of insuring

the development of a uniform

5/ According to the National Labor Rela-

tions Board Report for the Fiscal Year

Ended June 30, 1972, almost 87% of the

Board's 25,555 closed cases were closed

prior to the issuance of a complaint. Less

than 6% of the total cases were closed after

a Board or court decision.

prosecutorial policy ,0/ the

General Counsel's Advice Branch

disposes of all unfair labor

practice charges involving

novel or complex-legal issues.

3. A Regional Director's re-

fusal to issue a complaint,

whether pursuant to an advice

decision or not, may be appealed

by the charging party to the

67 In testimony before the House Labor Sub-

committee on June 29, 1961, the NLRB

General Counsel presented the following ex-

planation of the need for.a centralized

advisory function. (The t€@stimony is re-

printed at 1 CCH Labor Law Reporter,

§1150.01.)

Absent some kind of centralized

advice section into which impor-

tant novel and complex legal issues

can be channeled, the risk of

chaotic developments in the law

would be marked. For, were Regional

Directors left entirely free in

‘this regard, each might proceed

on his own view of a given legal

question with the result that the

law could, as a practical matter

and before Board decision of the

issue, be one thing in one Region

and conflicting in others. Such a

result would be at odds with the

statutory purpose of encouraging

stability in labor management re-

lations. And the omission of

selective control by the General

Counsel, over these important

cases would amount to a failure

to exercise his statutory role

in administering the law.

Op App. at 7, emphasis added.

General Counsel's Office of

Appeals.

4, Both advice and appeals

cases are decided by an agenda

consisting of staff and senior

attorneys whose decision is

either adopted, modified, or

rejected by the General Counsel.

Op. App. at 3-5, and 11-13.

5. In both advice and appeals

cases, the General Counsel's final

determination and his reasons

therefor are routinely set forth

in, respectively, advice memo-

randa and appeals memoranda.//

6. The General Counsel's past

practice was to withhold the

texts of advice and appeals memo-

randa from the public. However,

while the instant case was pend-

ing in the district court, the

General Counsel announced he would

disclose all advice and appeals

memoranda in closed cases. Pet.

BPss Dwi, Neale

7. A subject matter index to

advice decisions was maintained

by the General Counsel before the

instant litigation began. A. 148-

149; A. 42-44. It was not until

after the instant litigation was

filed however, that the General

Counsel undertook voluntarily to

prepare a similar subject matter

(fA Appeals memoranda are issued only in

cases reversing the Regional Director's

decision to dismiss an unfair labor prac-

tice charge. See, note 1, supra.

index for appeals decisions. Brief

for Appellant in the court of

appeals, p.29, n.ll. Indices to

advice and appeals decisions in

closed cases are ‘also being made

available to the public. A.42-44,

8. In the course of the agenda

procedure, prior advice and appeals

memoranda are reviewed and analyzed.

Op. App. at 3-5, and 11-13. On’

occasion, the General Counsel cites

and even attaches prior opinions to

his final advice or appeals deci-

sions. Pet. Br., pp.5-6. These

written, indexed opinions do, there-

fore,have precedential signifi-

cance in determining whether an

unfair labor practice charge

shall be dismissed or a complaint

filed with the Board.

Summary of Argument

Amici argue that the advice and appeals

decisions are "final opinions...and...

orders made in the adjudication of cases,"

"statements of policy and interpretations

which have been adopted by the...[General

Counsel] and are not published in the

Federal Register," and "instructions to

staff that affect a member of the public,"

and that the requested documents are,

therefore, required to be made publicly

available under section (a)(2) of the

Freedom of Information Act ("FOIA"), 5

U.S.C. §552(a)(2)(A), (B), and (C). In this

connection, amici also argue that the

General Counsel's opinions in advice and

appeals cases may not be withheld under the

FOIA's fifth exemption for “intra-agency

memorandums...." 5 U.S.C. §552(b)(5)

Amici do not address petitioners' claim,

raised for the first time in this Court, k

that the requested documents are also ;

exempt under the second and seventh exemp- }

tions to the FOIA, 5 U.S.C. §552(b)(2) and

(b)(7). We wish to point out only that

allowing petitioners to make untimely

exemption claims would be inconsistent with

a recent line of cases holding that FOIA

exemption justifications must be made with

particularity and at a very early stage in

the litigation. See, Vaughn v. Rosen,

484 F.2d 820 (D.C.Cir. 1973), cert. den.,

94 S.Ct. 1564 (1974); Cuneo v. Schlesinger,

484 F.2d 1086 (D.C.Cir. 1973); Pacific

Architects and Engineers Incorporated v.

Renegotiation Board, No. 73-2093 (D.C.Cir.

decided October 8, 1974).

I. The General Counsel Is An Agency

Subject to the Public Disclosure

Requirements of the FOIA

The express requirement in section (a)

(2) that certain information be insade public

and indexed applies to "(e)ach agency."

"Agency" is defined in the Administrative

Procedure Act, 5 U.S.C. §551(1) to mean,

with certain enumerated exceptions not

applicable here, "each authority of the

Government of the United States, whether

or not it is within or subject to review

by another agency...." The General Counsel

has conceded that "in the performance of

his pre-complaint prosecutorial authority,

he is clearly an agency within the meaning

of 5 U.S.C. §551(1)." 346 F. Supp. at 753,

n.4. Principally, his authority consists

of the power to make final, unreviewable

decisions as to whether unfair labor

practice charges shall be presented to the

Board. This statutory function clearly

entails the exercise of "substantial inde-

pendent authority." Soucie v. David, 448

ARE RE

F.2d 1067, 1073 (D.C.Cir. 1973). As a legal

consequence of the General Counsel's status

as an independent agency, it follows that if

the disputed advice and appeals opinions

fall within the categories of information

specified in section (a)(2) of the FOIA, the

General Counsel must index the documents

and make them available to the public.

II. Advice and Appeals Memoranda Are

Final Opinions and Orders

Section 552(a)(2)(A) requires that

agencies index and make available for public

inspection and copying "final opinions,

including concurring and dissenting

opinions, as well as orders, made in the

adjudication of cases." The district court

held that advice memoranda are "instructions

which affect a member of the public” within

the meaning of section (a)(2)(C), and that

appeals memoranda are "final opinions" with-

in the meaning of section (a)(2)(A). The

record, however, reveals no substantial

difference between advice and appeals

memoranda--indeed, petitioners characterize

the two types of documents as "comparable."

Pet. Br., p.8. Each is essentially an

opinion setting forth the General Counsel's

disposition of an unfair labor pygctice

charge and his reasons therefor.2

5/ Only a small percentage (an average of

10% in 1959 and 1960) of unfair labor prac-

tice charges filed with the Regional Direc-

tors are referred to the Advice Branch for

initial decision. Op.App. 5. Of these, only

those resulting in determinations that a

complaint should not issue may be appealed.

Thus, it is very rare that an unfair labor

practice charge generates both an advice

and an appeals memorandum. For purposes of

the FOIA and the Administrative Procedure

The advice memorandum, as well as the appeals

memorandum, "occupies the same opinion status

as any document produced by a decision-

maker in an adjudicatory-like process [here

the Agenda procedure]...!" Grumman v. Rene-

Gobi ahlen Board, 482 F.2d 710, 713 (D.C.Cir.

1973). :

Advice and appeals memoranda are the

mechanisms the General Counsel uses to

announce and explain final dispositions of

requests by aggrieved parties that unfair

labor practice complaints be filed with the

Board. The General Counsel's final decisions

in advice and appeals cases are recorded in

written opinions which are being or will be

indexéd. In these opinions, the General

Counsel discusses, distinguishes, repudiates,

or follows the legal reasoning of prior

decisions. In sum, the advice and appeals

memoranda are formal statements of the law

governing the General Counsel's disposition ©

of unfair labor charges.

To the extent that advice and appeals

opinions are withheld or not promptly dis-

closed, they constitute the kind of secret

agency law Congress expressly sought to

eradicate when it enacted the FOIA. See,

e.g., Environmental Protection Agency v.

Mink, 410 U.S. 73 (1973); Tax Analysts

and Advocates v. I.R.S., No. 73-1975 (D.C.

Cir. 8/19/74); Davis, Admin. Law Tr. §§3A.9,

ell, .12, .14, and .21 (1970 Supp.). Ina

8/(con't.) Act, 5 U.S.C. §551 et seq., an

advice opinicn is "final" whether or not it

could be reviewed by the Office of Appeals.

See, alternative holdings in Grumman v. Re-

negotiation Board, 482 F.2d 710, 713 (D.C.

Cir. 1973).

l2.

rare display of unanimity, the House and Senate

committees gave virtually identical reasons

for the requirement in section (a)(2) that

agency opinions and orders not only be dis-

closed, but that they also be indexed.

The indexing requirement will pre-

vent a citizen from losing a con-

troversy with an agency because of

some obscure or hidden order or

opinion which the agency knows

about but which has been unavaila-

ble to the citizen simply because

he had no way to discover it.

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

2d Sess., 8 (1966).

Requiring the agencies to keep a

current index of their orders,

opinions, etc., ...will prevent a

citizen from losing a controversy

with an agency because of some

obscure and hidden order or

opinion which the agency knows

about but which has been una-

vailable to the citizen simply

because he had no way in which

to discover it. S.Rep. No. 813,

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

(hereinafter S.Rep.).

Although the General Counsel is indexing

advice and appeals memoranda, he maintains

that these written opinions may be kept

secret indefinitely or, as is his current

practice, until the underlying labor charge

has been adjudicated by the Board.

Requiring agencies to make their law

public serves several beneficial policies

not the least of which is that persons are

better able to conform their conduct to the

requirements of the law as: interpreted and

applied by the agency. In this connection,

if complete information about an agency's

past decisions is available, persons are in

a much better position to predict what

action the agency is likely to take in

future cases. Furthermore, as the legisla-

tive history emphasizes, parties to agency

proceedings must know what the agency's

law is in order to present their cases most

vely._ One n errect of

requiring disclosure of agency law is that

the public is given an opportunity to

examine the agency's decisions, thereby

creating an incentive for tne agency to be

consistent and fair in its adjudications

rather than arbitrary and capricious.

The General Counsel argues that advice

and appeals memoranda are not "final

opinions...and...orders, made in the adjudi-

cation of cases" because only the Board

can adjudicate unfair labor practice cases.

The General Counsel's contention that he

does not adjudicate cases is both factually

and legally unsupportable. As a factual

matter, the General Counsel decides which

unfair labor practice charges are meritori-

ous and which shall be dismissed. Pet. Br.,

p:.3. The General Counsel's decision to dis-

miss a charge or to file a complaint is as

final and has as much impact on the parties

as any determination the Board might sub-

sequently make .9/ In effect, the General

Counsel adjudicates all "cases" initiated

97 The General Counsel's refusal to issue a

complaint may not be reviewed by the Board

nor, in general, by the courts. See, Balan-

yi v. Local 1031, Internat'l Bro. of Elec-

trical Wkrs., 374 F.2d 723 (7th Cir. 1967).

Furthermore, only a very small percentage

of unfair labor charges result in complaints.

See note 5, supra.

rat

Lb: an anfair labor prac.tice charge, whereas

the Board adjudicates only those "cases"

initiated by a complaint filed by the

General Counsel.

The agenda procedurel0/ the General

Counsel follows in deciding advice and

"——appeatis cases _ts—an adiudiceation—inder_the— —

Administrative Procedure Act, 5 U.S.C.

§551. Section 2(d) of the APA defines "ad-

jJudication" to mean “agency process for the

formulation of an order." 5 U.S.C. §551(7).

"Order" is defined to mean "the whole or

any part of a final disposition...of an

agency in a matter other than rulemaking

but including licensing." 5 U.S.C. §551(6).

Nothing could be more final than the

General Counsel's disposition of unfair

labor charges; his decisions granting or

denying access to the Board are unreviewable.

Parties whose charges are dismissed heave no

further recourse; parties against whom

complaints are filed have no alternative

but to settle or defend themselves before

the board.

All advice and appeals memoranda include

final orders, i.e., they either grant or

deny the charging party's request that the

General Counsel file a complaint with the

Board.

An "order" may say no more than

“application granted" or "appli-

denied" but that much has to be

open to public inspection;

10/ Op.App. at 3-5, and 11-13. An agenda is

a group of staff and senior attorneys who

prepare and recommend decisions in advice

and appeals cases for the General Counsel.

whether that much may be mean=

ingful has to depend upon the

application of the Information

Act to the other papers in the

case. Davis, Admin. Law Tr. §3A.8,

at p. 128 (1970 Supp.).

The record in the instant case indicates

that the General Counsel routinely makes

prompt disclosure of the “order" portion of

advice and appeals op’nions. The disclo-

sure is made in letters to the parties

advising them of the outcome of advice and

appeals proceedings.

But, advice and appeals memoranda are

more than terse orders announcing the

outcome of the General Counsel's final

prosecutorial deliberations. They are also

opinions setting forth the General Counsel's

legal and policy rationales for his deci-

sion in the particular case. At present,

however, the texts of advice and appeals

memoranda are not promptly disclosed; these

final opinions are withheld until the under-

lying unfair labor practice case is closed.

Congress provided no exceptions to the

broad requirement in section (a)(2)(A) that

all agency opinions and orders be made

public. Thus, this Court should hold that

the General Counsel is required to disclose

all advice and appeals memoranda whether

or not the underlying unfair labor practice

cases are pending before the Board. Grumman

v. Renegotiation Board, supra; Davis,

Admin. Law Tr. §§3A.8 and 3A.21 (1970 Supp);

accord, American Mail Line Ltd. v. Gulick,

Wil F.2d 696 (D.C.Cir. 1969); Sterlin ’

Drug, Inc. v. F.T.C., 450 F.2d 698, 708

(D.C Cis. 1971).

III. Advice and Appeals Memoranda Are

Not Intra-Agency Memoranda That

May Be Withheld Under Exemption 5

The General Counsel's principal argument

for withholding advice and appeals memoran-

da is that they are internal memoranda exempt

from disclosure under the FOIA's fifth

exemption, 5 U.S.C. §552(b)(5).117 To

bolster this argument, the General Counsel

attempts to convey the impression that the

advice and appeals opinions are nothing

more than internal communications between

attorneys investigating, evaluating, and

discussing the prosecution of unfair labor

practice charges. This characterization of

the documents in issue, however, is simply

erroneous. Advice and appeals memoranda

are the "end product" of elaborate,

hierarchical decision-making processes;

these documents announce and explain the

General Counsel's final decision as to

whether he shall prosecute an unfair labor

practice charge.

The General Counsel's fifth exemption

argument has been made and rejected in

several decided cases dealing with similar

kinds of agency records. In holding that

previously internal documents explaining

11/7 Respondent does not seek the pre-

decisional memoranda prepared by the General

Counsel or his staff in advice and appeals

cases. If this Court holds, as amici con-

tend, that advice and appeals opinions are

required to be disclosed, the decision

would have no effect on the General Coun-

sel's discretionary authority to withhold

all preliminary, deliberative memoranda

prepared in the course of deciding advice

and appeals cases. -

the Federal Trade Commission's reasons for

approving a merger were final opinions re-

quired to be disclosed, the court commented:

...-(T)he policy of promoting the

free flow of ideas within the

agency does not apply here, for

private transmittals of binding

sSnterpreta—

tions should not be encouraged.

These are not the ideas and

theories which go into the making

of the law, they are the law it-

self, and as such should be made

available to the public. Sterling

Drug, Inc. v. F.T.C., supra, 450

F.2d at 708.

The court went one analytical step further

in the Grumman case holding that decisions

of the agency's Regional Boards were

"final opinions," and that, by definition,

"final opinions" could not be internél

memoranda, that the two kinds of records

are mutually exclusive categories ur:der

the FOIA.

Exemption 5 is simply irrelevant

to final agency opinions because

such opinions are decisional

documents rather than pre-deci-

sional, consultative and

deliberative inter- or intra-

agency memoranda. Grumman v.

Renegotiation Board, supra, 482

F.2d at 710. —

The court insisted that the purely factual

task of distinguishing between preliminary

internal memoranda and final agency decisi-~s

was to be guided by a simple principle:

...(A) document which a decision-

maker treats as justification for

a decision communicated outside the

bureaucracy to regulated parties

should not be shielded from public

disclosure on the ground that it

was originally prepared for pur-

poses of pre-decisional consulta-

: has.

customarily not disclosed the

document, or because the agency

labels the document other than

what it really is. Id. at 721.