the Board that portion of the charge (now known as Case No. 4-CB-2281), containing allegations against the plaintiff and plaintiff's International Association.
7. Beginning with the period in or about May 16, 1973 and continuing to the present date, agents of the National Labor Relations Board, and specifically agents assigned to Region IV, engaged in an investigation of the charges against plaintiff; and in the process thereof, have obtained Affidavits in the course of investigation of the aforesaid charges.
8. On December 11, 1974, the defendant Peter W. Hirsch, acting for and on behalf of the National Labor Relations Board, issued a Complaint against plaintiff, charging plaintiff with having violated § 8(b)(1)(A) of the National Labor Relations Act. The issuance of this Complaint, and the factual allegations in support thereof, were based upon allegations of fact disclosed to the Board during the course of its investigation.
9. On or about December 27, 1974, an unfair labor practice charge was filed with Region IV of the National Labor Relations Board and docketed as Case No. 4-CB-2392.
10. Beginning with the period in or about December 27, 1974 and continuing to the present date; agents of the National Labor Relations Board, and specifically agents assigned to Region IV, engaged in an investigation of the charges against plaintiff; and in the process thereof, have obtained affidavits in the course of investigation of the aforesaid charge.
11. On September 30, 1975, the defendant Peter W. Hirsch, acting for and on behalf of the National Labor Relations Board, issued a Complaint against plaintiff, charging plaintiff with having violated § 8(b)(1)(A) of the National Labor Relations Act. The issuance of this Complaint, and the factual allegations in support thereof, were based upon allegations of fact disclosed to the Board during the course of its investigation.
12. On or about November 21, 1975, amended unfair labor practice charges in Case Nos. 4-CB-2127 and 2281 were filed with Region IV of the National Labor Relations Board.
13. Beginning with the period in or about November 21, 1975 and continuing to the present date, agents of the National Labor Relations Board, and specifically agents assigned to Region IV, engaged in an investigation of the charges against plaintiff; and in the process thereof, have obtained affidavits in the course of investigation of the aforesaid charges.
14. On January 20, 1976, the Acting Regional Director of Region IV issued an Amended Complaint against plaintiff, et al., consolidating cases 4-CB-2127, 4-CB-2281 and 4-CB-2392, adding additional allegations against plaintiff, and scheduling trial on the merits for February 4, 1976.
15. By letter dated November 25, 1975, counsel for the plaintiff, Bernard N. Katz, Esquire, made demand upon the defendants, pursuant to the provisions contained in the Freedom of Information Act, for all affidavits which the Region presently had in its file and which related to the above-noted litigation. Plaintiff duly offered to bear any expense in the reproduction of such documents.
16. By letter dated December 9, 1975, the defendant, Peter W. Hirsch, responded to Mr. Katz' letter by denying to produce for plaintiff's inspection and copying any affidavits obtained by the Board during its investigation of the charges.
17. By letter dated December 22, 1975, and in accordance with the rules and regulations of the National Labor Relations Board, plaintiff appealed the Regional Director's decision to General Counsel for the National Labor Relations Board.
18. On January 22, 1976, subsequent to the date of the filing of the instant Motion, General Counsel for the National Labor Relations Board denied plaintiff's appeal.
19. Plaintiff has exhausted all available avenues under existing Board rules and regulations in its effort to obtain copies of the aforenoted affidavits given to Board Agents in support of the charges against plaintiff.
20. Most, if not all, of the individuals who gave affidavits to the Board Agents will be called as witnesses on behalf of the Board at the trial scheduled for February 4, 1976.*
21. In its preparation for the February 4, 1976*trial, the Board has substantially relied on the information contained in the affidavits and such information acted as the basis for the allegations contained in the Complaint issued against plaintiff.
The joint exhibits submitted as part of the record on final hearing include the exchange of correspondence through which Union exhausted its administrative remedies for seeking to obtain disclosure (Joint Exhibits 1-4), and the complaints and amended complaints dated December 11, 1974, September 30, 1975, and January 20 and 29, 1976, charging unfair labor practices (Joint Exhibits 5-9). The charging party in the complaints was Associated Builders and Contractors, Inc., which alleged that agents and representatives of Local 30 committed unfair labor practices on various dates in March and April 1973, on various dates in December 1974, and on or about November 12, 1975. The acts and practices complained of (see Amended Consolidated Complaint Joint Exhibit 8) included mass picketing; preventing employees from entering work sites; assaulting persons; damaging or destroying materials, property and equipment; chasing and pursuing employees from work sites; and threats to do bodily injury. The affidavits sought by plaintiff were obtained in the course of the investigation. Following investigation of the charging party's allegations, the complaints and amended complaints were filed.
In addition to the Stipulation of Facts and the joint exhibits, I requested, following the hearing, that defendants submit the affidavits to me for in camera inspection. Plaintiff Union interposed no objection to the request, indeed endorsed it, and the affidavits have been received and reviewed.
It would be helpful, at the very outset, to state some applicable principles which will make this case more understandable and put it in proper perspective.
The problem arises because the NLRB's procedures permit pretrial discovery only on a showing of "good cause." 29 C.F.R. § 102.30. The NLRB's procedures have been held to be constitutional and not violative of due process. NLRB v. Interboro Contractors, Inc., 432 F.2d 854, 857-58 (2d Cir. 1970), cert. denied, 402 U.S. 915, 28 L. Ed. 2d 661, 91 S. Ct. 1375 (1971); NLRB v. Vapor Blast Manufacturing Co., 287 F.2d 402 (7th Cir.), cert. denied, 368 U.S. 823, 7 L. Ed. 2d 28, 82 S. Ct. 42 (1961). The district courts do not have jurisdiction to review decisions of the NLRB; that is the province of the Courts of Appeals. 29 U.S.C. § 160(e) and (f). See Myers v. Bethlehem Shipbuilding Co., 303 U.S. 41, 48-49, 82 L. Ed. 638, 58 S. Ct. 459 (1938); Sears, Roebuck & Co. v. NLRB, 433 F.2d 210 (6th Cir. 1970).
The Freedom of Information Act generally makes available to the public, upon compliance with specified procedures, records of all government agencies. The Act contains enumerated exceptions set forth in § 552(b). In the event of failure of an agency to comply with a request for disclosure, the district courts are given jurisdiction to enjoin withholding. 5 U.S.C. § 552(a)(4)(B) provides:
"(B) On complaint, the district court of the United States in the district in which the complainant resides, or has his principal place of business, or in which the agency records are situated, or in the District of Columbia, has jurisdiction to enjoin the agency from withholding agency records and to order the production of any agency records improperly withheld from the complainant. In such a case the court shall determine the matter de novo, and may examine the contents of such agency records in camera to determine whether such records or any part thereof shall be withheld under any of the exemptions set forth in subsection (b) of this section, and the burden is on the agency to sustain its action."
The Freedom of Information Act is not a discovery tool. NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 143 n.10, 44 L. Ed. 2d 29, 95 S. Ct. 1504 (1975); Williams v. Internal Revenue Service, 345 F. Supp. 591, 594 (D. Del. 1972), aff'd, 479 F.2d 317 (3d Cir. 1973). It was enacted to inform the public about agency action, and a person's rights under the Act are neither increased nor decreased by the fact that he is a litigant before the agency from which he seeks information. Renegotiation Board v. Bannercraft Clothing Co., 415 U.S. 1, 24, 39 L. Ed. 2d 123, 94 S. Ct. 1028 (1974); EPA v. Mink, 410 U.S. 73, 79, 92, 93 S. Ct. 827, 35 L. Ed. 2d 119 (1973).
At issue here is whether the affidavits sought fall within any of the enumerated exceptions to the Act. Defendants claim the right to withhold under Exemptions 5, 7(A), 7(C) and 7(D). Section 552(b) (Supp. 1976) of the Act, as amended in 1974, provides in pertinent part:
"(b) This section does not apply to matters that are --