Bourg v. National Labor Relations Board

751 F.2d 982
CourtCourt of Appeals for the Ninth Circuit
DecidedJanuary 8, 1985
DocketNos. 82-4719, 83-1612
StatusPublished
Cited by1 cases

This text of 751 F.2d 982 (Bourg v. National Labor Relations Board) is published on Counsel Stack Legal Research, covering Court of Appeals for the Ninth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Bourg v. National Labor Relations Board, 751 F.2d 982 (9th Cir. 1985).

Opinion

PER CURIAM..

Plaintiff law firm brought suit under the Freedom of Information Act, 5 U.S.C. § 552(a)(4)(B), challenging the refusal by the National Labor Relations Board to release documents from its files. The firm had requested affidavits and other documents gathered and produced by the NLRB during an investigation of an unfair labor practices charge brought against a client of the firm, Local 118 of the International Association of Bridge, Structural and Ornamental Ironworkers. The NLRB released some materials but withheld seven docu[984]*984ments, claiming exemption from disclosure under 5 U.S.C. §§ 552(b)(5), (b)(7)(A), (b)(7)(C), and (b)(7)(D). Upon cross motions for summary judgment, the district court inspected the seven documents in camera and ordered three documents disclosed {in camera submission document numbers 3, 4, and 7). The court held that the NLRB properly withheld the remaining four documents {in camera submission document numbers 1, 2, 5, and 6). Both sides appeal. We affirm in part and reverse in part.

The purpose of the FOIA is to “ensure an informed citizenry.” NLRB v. Robbins Tire & Rubber Co., 437 U.S. 214, 242, 98 S.Ct. 2311, 2327, 57 L.Ed.2d 159 (1978). Under 5 U.S.C. § 552(a)(4)(B) documents are presumed to be subject to disclosure unless the agency proves that one or more of the nine specific statutory exemptions in § 552(b) applies. To ensure maximum disclosure, those nine exemptions should be narrowly construed. Dep’t of the Air Force v. Rose, 425 U.S. 352, 360-1, 96 S.Ct. 1592, 1598-99, 48 L.Ed.2d 11 (1976). See, e.g. Church of Scientology v. United States Dep’t of Justice, 612 F.2d 417, 426 (9th Cir.1979) (general purpose of the FOIA justifies narrow construction of the exemptions). The district court is to review de novo the agency’s decision to withhold documents from disclosure. 5 U.S.C. § 552(a)(4)(B). This court will reverse the district court’s findings that a particular document is exempt from mandatory disclosure only if the finding is clearly erroneous. Church of Scientology v. United States Dep’t of the Army, 611 F.2d 738, 742 (9th Cir.1979). Because both parties have appealed, we must determine whether any of the cited exemptions apply to any of the seven documents reviewed in camera by the district court.

The district court held that one of the withheld documents, an intra-agency telegram, was properly withheld under § 552(b)(5) as an intra-agency predecisional communication. Neither the NLRB nor the law firm challenges the district court’s order with respect to this document (document number 1). See FTC v. Grolier, Inc., 462 U.S. 19, 103 S.Ct. 2209, 2211-12, 76 L.Ed.2d 387 (1983); EPA v. Mink, 410 U.S. 73, 85, 93 S.Ct. 827, 835, 35 L.Ed.2d 119 (1973).

The remaining six documents are all affidavits describing union practices, officials, and members, apparently submitted as part of the NLRB unfair labor practices investigation. At issue before this court is whether any or all of these affidavits are exempt from mandatory disclosure under any of the exemptions the parties allege to be applicable.

The district court held that documents 2, 5 and 6 are exempt from disclosure under § 552(b)(7)(C) because their release would create a substantial risk of embarassment for or reprisals against the authors and subjects and would therefore constitute an unwarranted invasion of privacy. The NLRB argues that these documents are also exempt from disclosure under § 552(b)(5).

FOIA exemption 5 allows withholding of inter- or intra-agency documents which would not be available in litigation to a party other than the agency. The Supreme Court has recently held that, for inter- or intra-agency documents, exemption 5 incorporates all civil discovery privileges; if an internal document would be immune from civil discovery, it is similarly protected from mandatory disclosure under the FOIA. United States v. Weber Aircraft Corp., — U.S. -, 104 S.Ct. 1488, 79 L.Ed.2d 814 (1984); see FTC v. Grolier, 103 S.Ct. at 2214. In Weber, the Court held that statements made by agency personnel in the course of an airplane crash investigation would be privileged from discovery and accordingly also exempt from mandatory disclosure under the FOIA. The documents in Weber were internal agency documents. The statements were submitted by employees of the agency doing the investigation. 104 S.Ct. at 1491-92 n. 13. Weber did not decide what constitutes internal agency documents; the decision expressly left open the question whether exemption 5 could cover documents submitted to an agency by persons outside the government. [985]*985Id. at 1492 n. 13. See FTC v. Grolier, 103 S.Ct. at 2212. Weber stands for the proposition that once it is determined that internal agency documents are involved, exemption 5 incorporates all civil discovery privileges. Id. 104 S.Ct. at 1492-93.

None of the six contested documents was prepared as an internal document, by any NLRB official, or for any NLRB attorney as part of litigation. Documents submitted to the NLRB by private parties in the course of an unfair labor practices investigation are not internal agency documents. Poss v. NLRB, 565 F.2d 654, 659 (10th Cir.1977). See also Title Guarantee Co. v. NLRB, 534 F.2d 484, 492 n. 15 (2nd Cir.), cert. denied, 429 U.S. 834, 97 S.Ct. 98, 50 L.Ed.2d 99 (1976) (results of agency interviews are not protected); Joseph Horne Co. v. NLRB, 455 F.Supp. 1383, 1387 (W.D.Pa.1978) (statements of witnesses interviewed by agency field examiners are not protected). Because these documents are not internal, Weber does not apply. We need not decide whether any civil discovery privileges would protect these documents because exemption 5 by its terms applies only to internal agency documents or documents prepared by outsiders who have a formal relationship with the agency. See generally Federal Open Market Comm. v. Merrill, 443 U.S. 340, 352-3, 99 S.Ct. 2800, 2808-09, 61 L.Ed.2d 587 (1979); County of Madison v. Dep’t of Justice, 641 F.2d 1036, 1040, 1042 (1st Cir.1981); Ryan v. Dep’t of Justice, 617 F.2d 781, 790 (D.C.Cir.1980).

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