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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 1975
- **Citation:** 421 U.S. 132

## Text

) wv wre

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

1
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

11
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

19

‘ 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

3n
11, 14- -15, |
18--19, 20°
- 12
°

iv

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.

2

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

3

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)

4

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. .

5

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.

6

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.

7

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.

8

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)

9

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

10

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

pw

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,

13

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.

ay

15

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).

16

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. -

17

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:

18

...(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.

See also, American Mail Line Ltd. v.
Gulick, supra (pre-decisional, staff
memorandum expressly relied upon ina

final agency decision not exempt from
disclosure); Bristol-Myers Corp. v. F.T.C.,
424 F.2d 935 (D.C.Cir. 1970), cert. den.,
400 U.S. 824 (1970) (documents relied
upon in agency rulemaking required to be -
disclosed); Vaughn v. Rosen, No. 1753-72
(D.D.C. 10/7977 slip. op. at 5-6)

(Civil Service Commission's evaluations

of agencies' personnel practices not

exempt under the fifth exemption). The
result in each of these cases is consis‘%ent
with Professor Davis' suggested 2zccommoda-
tion between the disclosure and indexing
requirements of Section (a)(2) and the
exemption for internal memoranda in section
(b) (5):

I think such an accommodation
calls for disclosure of all
"opinions and interpretations"
which embody the agency's
effective law and policy, and

the withholding of all papers
which reflect the agency's group
thinking in the process of work-
ing out its policy and determining

go

what its law shall be. The need
for secret communication among
officials within the government
should be recognized, but so
should the need to prohibiting
all secret law. Davis, Admin.
Law Tr. §3A.21, at p.159 (1970
Supp.).

The General Counsel attempts to minimize
the significance of advice and appeals
memoranda as records embodying his final
opinions, interpretations, and statements
of policy with the suggestion that these
documents are larded with privileged trial
preparation materials. In the future, there
is no reason why the General Counsel could
not publish his formal advice and appeals
decision in one document, and his internal
strategy advice in another. See, Grumman
v. Renegotiation Board, 425 F.2d 578, 581
(D.C.Cir. 1970). Meanwhile, insofar as
existing memoranda are concerned, the
district court's order below takes cogni-
zance of the problem by allowing the
General Counsel to delete settlement
Suggestions and names of affiants.

The General Counsel also argues, some-
what obliquely, that the advice and
appeals memoranda are not "final opinions"
because he is not.bound to rely upon them
as precedent. Professor Davis anticipated
this argument and disposed of it in the
following manner:

Some opinions may have little value,
but I would prefer to have all

of them available and indexed

than to have agencies select the
ones they believe to have prece-
dential significance. A private
party who wants to know the

agency's law should be entitled

20

to maxe his own determination of
what precedents have value. Id.,
§3A.14 at p.140.

Notwithstanding the General Counsel's pro-
testations to the contrary, the record does
indicate that prior advice and appeals

—memoranda are studied when a new case comes

up for decision, and that prior decisions
are sometimes expressly relied upon as
precedent. Pet.Br., p.5. This practice
strongly suggests that advice and appeals
memoranda do function as operative state-
ments of law and policy followed by the
Genera’ Counsel in carrying out his
responsibilities under the Labor Act. As
such, the advice and appeals memoranda are:
records of agency law required to be made
public under section (a)(2) of the FOIA.

IV. Advice and Appeals Memoranda
Are Statements of Policy and
Interpretations

Although not considered by the courts
below, advice and appeals memoranda,
separately or in combination, are "state-
ments of policy and interpretations which
have been adopted by...[{the General
Counsel] and are not published in the
Federal Register." 5 U.S.C. §552(a)(2)(B).
In every such memorandum, the General
Counsel at the very least interprets the
applicability of the law to the available
facts in a given case. As the General
Counsel testified in 1961, "the Advice
Branch...concerns itself with the inter-
pretation and application of legal
principles." Op.App. 3; emphasis added.
Advice and appeals decisions are also used
by the General Counsel to record and
communicate major and minor changes in
enforcement policy. In his 1961 congres-
sional testimony, the General Counsel

2l

indicated that the outcome of advice cases
is often affected by policy considerations,
€.g.:

(t)he general policy of the Act;

(t)he ascertainable purposes of
the particular statutory sections
involved in the case;

(t)he time and circumstances under
which the issue arises in relation
to the developing Board law; (This
may include seeking re-examination
of prior Board decisions.) Op.

App. 9.

Describing the procedure by which an appeal
is decided, the General Counsel testified,
"When a case...involves a policy issue,...
the case is discussed in detail with the
General Counsel...." Op. App. 13.

, Thus, in addition to being final
opinions and orders in individual cases,
advice and appeals memoranda are also ,
vehicles for transmitting statements des-
cribing the General Counsel's enforcement
policies as well as his interpretations of
the Labor Act. Since section (a)(2)(B)
requires that statements of policy and
interpretations adopted by an agency be
disclosed to the public, advice and
appeals memoranda may not be withheld.,

V. Advice and Appeals Memoranda
are Instructions to Staff That
Affect Any Member of the Public

Although advice and appeals memoranda
are not "administrative staff manuals,"
they do contain "instructions to staff
that affect any member of the public."

22

5 U.S.C. §552(a)(2)(C). Advice memoranda
instruct the Regional Director either to
file a complaint or to issue a dismissal
letter; appeals memoranda reverse the
Regional Director's. original refusal and
direct him to file a complaint. The

General Counsel strains to suggest that,

in theory, the Regional Directors could
disregard the basic instructions contained
in advice memoranda. Pet.Br., p.6. However,
after a "careful examination of the
[advice] procedure," the district court
found that the Regional Director must

abide by the advice decision in every case:

..-(T)he net effect of an Advice
memorandum is to truncate the
delegated authority of a Regional
Director to the point where his
issuance of a complaint or refusal
to do so is merely a ministerial
function. Far from being recom-
mendations, although ancillary
recommendations may be contained
therein, Advice memoranda are
instructions mandatory in sub-
stance if not in form. 346
F.Supp. at 753.

The instructional effect of an appeals
decision is equally mandatory, a point

the General Counsel does not dispute.
"Upon receipt of...the appeals memorandum,
the Regional Director, unless there is a
oo eeents issues a complaint." Pet.Br.,
D.o.

In regard to the district court's
holding that advice memoranda are
instructions to staff affecting a member
of the public, the General Counsel argues
that these instructions are exempt because
they pertain to law enforcement matters
rather than to administrative matters.

23

The Senate committee report gave the
following reason for the addition of the
word "administrative" to an earlier bill's
provision that "staff manuals and instruc-
tions" be made available to the public:

Tne limitation of the staff
manuals and instructions
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 traditional con-
fidential nature of instructions
to Government personnel prosecu-
ting violations of law in court,
while permitting a public
examination of the basis for
administrative action. S.Rep. 2.

Three U.S. Courts of Appeals have
decided that in adding the "administra-
tive" limitation to the "staff manuals and
instructions" disclosure mandate, Congress
intended to except only that law enforce-
ment information which, if disclosed, would
make it possible for law violators to avoid

apprehension or the imposition of sanctions.

In contrast, law enforcement manuals and
instructional materials that would assist
lay members of the public in obeying the
law were required to be disclosed.

Law enforcement is the process by
which a society secures com-
pliance with its duly adopted
rules. Enforcement is adversely
affected only when information

is made available which allows
persons simultaneously to vio-
late the law and to avoid detec-
tion. Information which merely
enables an individual to conform

eet cea as |

sean

Sots Te +e

24

his actions to an agency's under-
standing of the law applied by
that agency does not impede law
enforcement and is not excluded
from compulsory disclosure....

4 Far from impeding the goals
of -itaw enforcement, in fact, the
disclosure of information clari-
fying an agency's substantive or
procedural law serves the very
goals of enforcement by encou-
raging knowledgeable and
voluntary compliance with the
law. Such clarifying informa-
tion is found in agency rulings
made public....It may be found
in the criteria for investiga-
tive action; in standards for
evaluation and so forth. Hawkes
v. I.R.S., 467 F.2d 787, 795
(6th Cir. 1972) (footnote
omitted); quoted with approval
in Stokes v. Brennan 076 F.2d
699, 701-02 (5th Cir. 1972);
accord, Davis Admin. Law. Tr.
§3A.12, at p. 137 (1970 Supp.).

Most recently, the U.S. Court of Appeals for
the District of Columbia Circuit, following
a similar analysis, held that portions of
the Defense Contract Agency Audit Manual
containing "interpretations of rules and
statutes or guidelines for allowability

of costs" were required to be disclosed.
Cuneo v. Schlesinger, 484 F.2d 1086, 1090-
1091 (D.C.Cir. 1973).

Advice and appeals memoranda must be
disclosed in order to provide an oppor-
tunity for "public examination of the
basis for [the General Counsel's] adminis-
trative action” on unfair labor practice
charges. S.Rep. 2. The disputed documents

25

do not contain the kind of law enforcement
information that would help employers and
unions circumvent their legal obligations
under the Labor Act. On the contrary, ad- }

vice and appeals memoranda contain the kind
of information that would increase public
—uanderstanding of the Labor Act's require=-——____->——

ments, particularly as those requirements
are interpreted and applied by the General

Counsel.
CONCLUSION

The judgment of the court of appeals
should be affirmed.

Respectfully submitted,

Carol A. Cowgill

Peter H. Schuck

Consumers Union of United
‘States, Inc.

1714 Massachusetts BvEnOes
N.W. :
Washington, D.C. 20036 9

SSR DU Re i Fe TTR DPA =

Marvin M. Karpatkin
1345 Avenue of the Americas
New York, New York 10019

Melvin L. Wulf é
John H. F. Shattuck $
American Civil Liberties ;
Union f
22 East 40th Street j
New York, New York 10016 3

Attorneys for Amici Curiae

November 1974

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386414_0402%3A07. Public record. Not legal advice.