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JOSEPH HORNE CO. v. NLRB

September 21, 1978

JOSEPH HORNE CO., a Division of Associated Dry Goods Corporation, Plaintiff,
v.
NATIONAL LABOR RELATIONS BOARD, Defendant



The opinion of the court was delivered by: COHILL

MEMORANDUM AND ORDER

Plaintiff, Joseph Horne Company, filed this action pursuant to the Freedom of Information Act ("FOIA" or the "Act"), 5 U.S.C. § 552, following the refusal of the defendant, National Labor Relations Board ("NLRB" or "Board") to supply plaintiff with copies of specified documents from a case which the Board had closed (Case No. 5-cb-1352).

 Jurisdiction is invoked pursuant to 5 U.S.C. § 552(a)(4)(B), 5 U.S.C. §§ 701 Et seq. and 28 U.S.C. § 1651.

 Presently before us are cross motions for summary judgment. The underlying facts are not in dispute, and both plaintiff and defendant in their respective motions for summary judgment assert that each is entitled to a favorable judgment as a matter of law. We heard oral arguments on these motions and received briefs from all parties. We have completed our In camera inspection of certain documents which we requested at the oral argument.

 Plaintiff seeks these documents to assist it in preparation for filing an unfair labor practice charge with the Board involving similar issues, averring that it seeks to ascertain, via these documents, the Board's basis for determining that merit existed in the claim asserted in the closed file and the facts underlying that determination.

 The Board avers that the documents plaintiff requests are exempt from disclosure under 5 U.S.C. § 552(b)5 and 7(A), (C) and (D).

 The FOIA was enacted to "pierce the veil of administrative secrecy and to open agency action to the light of public scrutiny." Department of the Air Force v. Rose, 425 U.S. 352, 361, 96 S. Ct. 1592, 1599, 48 L. Ed. 2d 11, 21 (1976). Disclosure rather than secrecy is the basic objective of the Act. The exemptions to disclosure contained in 5 U.S.C. § 552(b) (and invoked by the Board here) must therefore be narrowly construed to permit the maximum possible access by individuals to information gathered by government agencies consonant with the overall purpose of the Act. Hartman v. Alexander, 78-1 U.S. Tax Cas. (CCH) P 9115, 41 A.F.T.R.2d (P-H) 305, W.D.Pa., C.A. 76-1321 (November 17, 1977).

 Consequently, under the FOIA, the agency seeking to deny access and disclosure has the burden "to prove de novo in trial court that the information sought fits under one of the exemptions." Vaughn v. Rosen, 157 U.S.App.D.C. 340, 343, 484 F.2d 820, 823 (1973); Committee on Masonic Homes, Etc. v. N. L. R. B., 556 F.2d 214 (3d Cir. 1977); 5 U.S.C. § 552(a)(4)(B). The applicability of an exemption is not to be determined on the basis of the identity of the plaintiff, the label given to the file or document, or the isolated fact that the information may aid a party in other litigation. Kanter v. Internal Revenue Service, 433 F. Supp. 812 (N.D.Ill.1977). The only relevant inquiry is a consideration of whether the exemptions claimed by the agency factually apply to the withheld document. Hartman v. Alexander, supra.

 As previously indicated, the Board contends that the material sought by plaintiff is exempt under any one of four exemptions set forth in the Act. The first exemption relied on by the Board, 5 U.S.C. § 552(b)(5), provides as follows:

 
"(b) This section does not apply to matters that are
 
(5) inter-agency or intra-agency memorandums or letters which would not be available by law to a party other than an agency in litigation with the agency;"

 The remaining three exemptions relied on by the Board are contained in 5 U.S.C. § 552(b)(7)(A), (C) and (D), which read as follows:

 
"(b) This section does not apply to matters that are
 
(7) investigatory records compiled for law enforcement purposes, but only to the extent that the production of such records would (A) interfere with enforcement proceedings, . . . (C) constitute an unwarranted invasion of personal ...

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