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NEMACOLIN MINES CORP. v. NLRB

March 22, 1979

NEMACOLIN MINES CORPORATION, a corporation, Plaintiff,
v.
NATIONAL LABOR RELATIONS BOARD et al., Defendants



The opinion of the court was delivered by: MCCUNE

MEMORANDUM

Petitioner, Nemacolin Mines Corporation (Nemacolin) seeks the disclosure of a statement made by one of its employees to an investigator for the respondent, the National Labor Relations Board (NLRB). The statement was collected in the course of the NLRB's investigation of an unfair labor practice charge against Nemacolin. The investigation, prosecution, and enforcement of the underlying unfair labor practice charge has been completed.

 Nemacolin maintains that disclosure is required by the Freedom of Information Act, 5 U.S.C. § 552, Et seq., (FIOA). The NLRB argues that the statement is exempt from the FIOA by reason of exemptions 5, 6, and 7 of the FIOA, 5 U.S.C. § 552(b)(5)(6) and (7). This case is novel. It differs from the more common attempt to use the FOIA to expand administrative discovery, an attempt barred by the recent Supreme Court decision of NLRB v. Robbins Tire and Rubber Co., 437 U.S. 214, 98 S. Ct. 2311, 57 L. Ed. 2d 159 (1978). This case requires reconciliation of the FOIA with long established investigatory procedures of the NLRB. The public interest in disclosure of documents upon which governmental decisions rest must be balanced with the need of the NLRB to preserve informant confidentiality which encourages citizens to come forward with pertinent information. We find relevant exemptions 7(A) and 7(D) of the FOIA. *fn1" For the reasons which follow, we find disclosure of the requested statement proper.

 Exemption 7(A)

 Exemption 7(A) exempts from FOIA disclosure:

 
"(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 . . ." 5 U.S.C. § 552(b)(7)(A).

 The statement sought by Nemacolin obviously falls under "investigatory records compiled for law enforcement purposes." Whether its disclosure would "interfere with enforcement proceedings," however, is contested.

 Nemacolin argues that there can be no interference with enforcement proceedings when the proceedings to which the statement relates are closed. The NLRB argues that, even though the unfair labor practice proceedings against Nemacolin are closed, disclosure would interfere with future NLRB investigations at Nemacolin and elsewhere, since the NLRB could no longer promise any sort of confidentiality to informants. The NLRB, therefore, interprets enforcement proceedings to mean proceedings in general. Nemacolin interprets enforcement proceedings to mean only the proceeding for which the statement was prepared.

 No appellate court has considered the question of whether post-enforcement disclosure of statements made to the NLRB while investigating an unfair labor practice charge is barred by exemption 7(A) in its present form. Legislative history of exemption 7, however, illuminates the proper scope of the exemption.

 Exemption 7, as originally enacted, was much broader in scope than it is at present. The original exemption allowed disclosure of " "investigatory files compiled for law enforcement purposes except to the extent available by law to a party other than an agency'." 80 Stat. 251, as quoted in Wellman Industries, Inc. v. NLRB, 490 F.2d 427 (4th Cir. 1974). Many courts, faced with the clear import of the text of the original exemption, applied it to all investigatory files, whether closed or open. See, Weisberg v. U. S. Department of Justice, 160 U.S.App.D.C. 71, 489 F.2d 1195 (1973); Aspin v. Department of Defense, 160 U.S.App.D.C. 231, 237, 491 F.2d 24, 30 (1974); Ditlow v. Brinegar, 161 U.S.App.D.C. 154, 494 F.2d 1073 (1974); Center for National Policy Review on Race and Urban Issues v. Weinberger, 163 U.S.App.D.C. 368, 502 F.2d 370 (1974); Wellman Industries, Inc. v. NLRB, supra; and Evans v. Department of Transportation, 446 F.2d 821 (5th Cir. 1971). Indeed, the central issue of many of these cases in construing the original exemption was merely whether the documents sought were investigatory files. No inquiry was made into the need for continued secrecy in individual circumstances. The impact of the exemption was to preclude FOIA disclosure of investigatory materials, regardless of any real need for their retention.

 Congress became alarmed at the wooden interpretation exemption 7 was given by some courts, and amended the statute in 1974. Administration of the Freedom of Information Act, H. R. Rep. No. 92-1419 (1972). The new language of the exemption, Supra, focuses not upon whether a file is investigatory, but rather upon the interference with governmental litigation which would result from disclosure. This change precludes a mechanical application of the exemption to all investigatory records, whether litigation has been closed or is open when disclosure is sought. Inquiry must be made into the amount of interference disclosure will cause in each situation.

 The restrictive amendment of the exemption is indicative of a Congressional intention to limit the scope of the exemptions. The fact of amendment alone, however, does not lend strong support to any inference concerning the interpretation of the text of that amendment. For this we must turn to precedent construing the amended version of exemption 7.

 The amended exemption 7(A) has recently been considered by the Supreme Court in NLRB v. Robbins Tire and Rubber Co., 437 U.S. 214, 98 S. Ct. 2311, 57 L. Ed. 2d 159 (1978). Robbins Tire concerns the disclosure of statements similar to that considered here Before the unfair labor practice hearing, rather than after the file has been closed. Despite this critical distinction, Robbins Tire is relevant to the issue before us.

 Robbins Tire holds that statements made to NLRB investigators prior to an unfair labor practice charge hearing are within the parameters of exemption 7(A). This holding is carefully limited to pre-hearing disclosure. The Ratio decidendi of the holding, however, supports an ...


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