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Au v. National Labor Relations Board

filed: July 8, 1976.

ROGER J. AU & SON, INC., APPELLANT
v.
NATIONAL LABOR RELATIONS BOARD



ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA C.A. No. 76-27

Author: Adams

Before: ADAMS and HUNTER, Circuit Judges, and SCHWARTZ, District Judge.

ADAMS, Circuit Judge.

An employer, the target of a pending unfair labor practice complaint before the National Labor Relations Board (NLRB), brings this appeal in furtherance of its claim that, under the Freedom of Information Act (FOIA), it is entitled to access to all written statements of witnesses contained in the NLRB case file.

I.

Roger J. Au & Son, Inc. (Au) is an Ohio corporation engaged in the construction of a flood control dike and diversion tunnel in Tyrone, Pennsylvania. A local of the International Union of Operating Engineers filed an unfair labor practice charge against Au with the NLRB. Following investigation, the NLRB issued a complaint.

After being advised that the NLRB intended to use testimony from six or eight witnesses, Au sought copies of all written statements of charging parties or potential witnesses, whether signed or unsigned, in the NLRB's case file. The Regional Director refused to divulge the statements, asserting that they were privileged under FOIA exemptions 7(A), (C), and (D).*fn1 Au appealed that decision to the General Counsel of the NLRB, who ultimately affirmed the Regional Director's action, relying on exemption 5 as well as the provisions of exemption 7.

Prior to receiving the General Counsel's reply, however, Au filed a complaint in the district court, seeking access to the statements.*fn2 The district court dismissed the complaint on the merits, stating:

[We] do not feel that in legislating the Freedom of Information Act, Congress intended said Act to be a broad discovery tool for litigations in administrative agency proceedings including those before the NLRB.

Au then appealed, and we now affirm the judgment of the district court.

II.

The NLRB defends against disclosure of the statements in its case file on a variety of grounds, citing FOIA exemptions 5 and 7(A), (C), and (D). It is unnecessary to consider each of these grounds, however, since, in accord with the decision of the Court of Appeals for the Second Circuit in Title Guarantee Co. v. NLRB,*fn3 we believe that statements of charging parties and potential witnesses in pending enforcement proceedings are privileged under FOIA exemption 7(A), which provides that:

Investigatory records compiled for law enforcement purposes [are exempt from disclosure], but only to the extent that the production of such records would (A) interfere with enforcement proceedings,....

Prior to 1974, Au concedes, 5 U.S.C. ยง 522(b)(7) protected the contents of files gathered for law enforcement purposes, "except to the extent available by law to a party other than an agency." In 1974, however, Congress amended this subsection, eliminating the "except"clause, and replacing it with the specific provisions of the present exemption 7. Au maintains that the "except" clause had defined, for all practical purposes, the maximum level of disclosure available under the old law. ...


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