REHNQUIST, J., dissenting

437 U.S.

district court issue an injunction as a matter of course without regard to established equitable considerations, saying:

"Only the other day we stated that 'An appeal to the equity jurisdiction conferred on federal district courts is an appeal to the sound discretion which guides the determinations of courts of equity.'. . . The essence of equity jurisdiction has been the power of the Chancellor to do equity and to mould each decree to the necessities of the particular case. Flexibility rather than rigidity has distinguished it. The qualities of mercy and practicality have made equity the instrument for nice adjustment and reconciliation between the public interest and private needs as well as between competing private claims. We do not believe that such a major departure from that long tradition as is here proposed should be lightly implied. ... [I]f Congress desired to make such an abrupt departure from traditional equity practice as is suggested, it would have made its desire plain." 321 U. S., at 329-330.

Only by sharply retreating from the principle of statutory construction announced in Hecht Co. could I agree with the Court of Appeals' holding in this case that the judicial enforcement provisions contained in § 11 (g)(1) of the Act require automatic issuance of an injunction by the district courts once a violation is found. I choose to adhere to Hecht Co.'s teaching:

"A grant of jurisdiction to issue compliance orders hardly suggests an absolute duty to do so under any and all circumstances. We cannot but think that if Congress had intended to make such a drastic departure from the traditions of equity practice, an unequivocal statement of its purpose would have been made." 321 U. S., at 329. Since the District Court possessed discretion to refuse injunctive relief even though it had found a violation of the Act, the

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REHNQUIST, J., dissenting

only remaining question is whether this discretion was abused in denying respondents' prayer for an injunction. Locomotive Engineers v. Missouri, K. & T. R. Co., 363 U. S. 528, 535 (1960). The District Court denied respondents injunctive relief because of the significant public and social harms that would flow from such relief and because of the demonstrated good faith of petitioner. As the Court recognizes, ante, at 193, such factors traditionally have played a central role in the decisions of equity courts whether to deny an injunction. See also 7 J. Moore, Federal Practice ¶ 65.18 [3] (1972); Yakus v. United States, 321 U. S. 414, 440-441 (1944). This Court has specifically held that a federal court can refuse to order a federal official to take specific action, even though the action might be required by law, if such an order "would work a public injury or embarrassment" or otherwise "be prejudicial to the public interest." United States ex rel. Greathouse v. Dern, 289 U. S. 352, 360 (1933). Here the District Court, confronted with conflicting evidence of congressional purpose, was on even stronger ground in refusing the injunction.

Since equity is "the instrument for nice adjustment and reconciliation between the public interest and private needs," Hecht Co., supra, at 329-330, a decree in one case will seldom be the exact counterpart of a decree in another. See, e. g., Eccles v. People's Bank, 333 U. S. 426 (1948); Penn Mutual Life Ins. Co. v. Austin, 168 U. S. 685 (1898). Here the District Court recognized that Congress, when it enacted the Endangered Species Act, made the preservation of the habitat of the snail darter an important public concern. But it concluded that this interest on one side of the balance was more than outweighed by other equally significant factors. These factors, further elaborated in the dissent of my Brother POWELL, satisfy me that the District Court's refusal to issue an injunction was not an abuse of its discretion. I therefore dissent from the Court's opinion holding otherwise.

NATIONAL LABOR RELATIONS BOARD v. ROBBINS TIRE & RUBBER CO.

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

FIFTH CIRCUIT

No. 77-911. Argued April 26, 1978-Decided June 15, 1978

After the National Labor Relations Board (NLRB) filed an unfair labor practice complaint against respondent employer, respondent requested, pursuant to the Freedom of Information Act (FOIA), that the NLRB make available prior to the hearing copies of all potential witnesses' statements collected during the NLRB's investigation. This request was denied on the ground that the statements were exempt from disclosure under, inter alia, Exemption 7 (A) of the FOIA, which provides that disclosure is not required of "investigatory records compiled for law enforcement purposes, but only to the extent that the production of such records . . . would interfere with enforcement proceedings." Respondent then filed an action in District Court seeking disclosure of the statements and injunctive relief. That court held that Exemption 7 (A) did not apply because the NLRB did not claim that release of the statements would pose any unique or unusual danger of interference with the particular enforcement proceeding, and hence directed the NLRB to provide the statements for copying prior to any hearing. The Court of Appeals affirmed, holding that the NLRB had failed to sustain its burden of demonstrating the availability of Exemption 7 (A) because it had introduced no evidence that interference with the unfair labor practice proceeding in the form of witness intimidation was likely to occur in this particular case. Held: The Court of Appeals erred in holding that the NLRB was not entitled to withhold the witness statements under Exemption 7 (A). Pp. 220-243.

(a) Exemption 7 (A)'s language does not support an interpretation that determination of "interference" under the Exemption can be made only on an individual, case-by-case basis, and, indeed, the language of Exemption 7 as a whole tends to suggest the contrary. Nor is such an interpretation supported by other portions of the FOIA providing for disclosure of segregable portions of records and for in camera review of documents, and placing the burden of justifying nondisclosure on the Government. Pp. 223-224.

(b) Exemption 7 (A)'s legislative history indicates that Congress did not intend to prevent federal courts from determining that, with respect

to particular kinds of enforcement proceedings, disclosure of particular kinds of investigatory records while a case is pending would generally "interfere with enforcement proceedings," and, more particularly, did not intend to overturn the NLRB's longstanding rule against prehearing disclosure of witnesses' statements. Pp. 224–236.

(c) Witness statements in pending unfair labor practice proceedings are exempt from FOIA disclosure at least until completion of the NLRB's hearing, since the release of such statements necessarily would involve the kind of harm that Congress believed would constitute an "interference" with NLRB enforcement proceedings-that of giving a party litigant earlier and greater access to the NLRB's case than he would otherwise have. Thus, here the NLRB met its burden of demonstrating that disclosure of the witnesses' statements in question "would interfere with enforcement proceedings," since the dangers posed by premature release of the statements would involve precisely the kind of "interference with enforcement proceedings" that Exemption 7 (A) was designed to avoid, the most obvious risk of such "interference" being that employers or, in some cases, unions will coerce or intimidate employees and others who have given statements, in an effort to make them change their testimony or not testify at all. Pp. 236-242. 563 F.2d 724, reversed.

MARSHALL, J., delivered the opinion of the Court, in which BURGER, C. J., and STEWART, WHITE, BLACKMUN, REHNQUIST, and STEVENS, JJ., joined. STEVENS, J., fiied a concurring opinion, in which BURGER, C. J., and REHNQUIST, J., joined, post, p. 243. POWELL, J., filed an opinion concurring in part and dissenting in part, in which BRENNAN, J., joined, post, p. 243.

Carl L. Taylor argued the cause for petitioner. With him on the brief were Solicitor General McCree, John S. Irving, Norton J. Come, and Carol A. De Deo.

William M. Earnest argued the cause for respondent. With him on the brief was Charles A. Poellnitz.*

*Briefs of amici curiae urging affirmance were filed by Stephen A. Bokat and Stanley T. Kaleczyc for the Chamber of Commerce of the United States; by Robert E. Williams, Douglas S. McDowell, and Frank C. Morris, Jr., for the Equal Employment Advisory Council; and by Alan B. Morrison for the Freedom of Information Clearinghouse.

MR. JUSTICE MARSHALL delivered the opinion of the Court. The question presented is whether the Freedom of Information Act (FOIA), 5 U. S. C. § 552 (1976 ed.), requires the National Labor Relations Board to disclose, prior to its hearing on an unfair labor practice complaint, statements of witnesses whom the Board intends to call at the hearing. Resolution of this question depends on whether production of the material prior to the hearing would "interfere with enforcement proceedings" within the meaning of Exemption 7 (A) of FOIA, 5 U. S. C. § 552 (b)(7)(A) (1976 ed.).

I

Following a contested representation election in a unit of respondent's employees, the Acting Regional Director of the NLRB issued an unfair labor practice complaint charging respondent with having committed numerous violations of § 8 (a)(1) of the National Labor Relations Act (NLRA), 29 U. S. C. § 158 (a)(1), during the pre-election period.1 A hearing on the complaint was scheduled for April 27, 1976. On March 31, 1976, respondent wrote to the Acting Regional Director and requested, pursuant to FOIA, that he make available for inspection and copying, at least seven days prior to the hearing, copies of all potential witnesses' statements collected during the Board's investigation. The Acting Regional Director denied this request on April 2, on the ground that this material was exempt from the disclosure requirements of

1 After investigating the union's objections to the election, the Acting Regional Director not only issued an unfair labor practice charge but also recommended that seven challenged ballots be counted and, if they did not result in the union's receiving a majority, that a hearing be held on certain of the union's objections. The Board adopted the Acting Regional Director's recommendations and, when a count of the challenged ballots failed to give the union a majority, the hearing on its objections to the election was consolidated with the hearing on the unfair labor practice charge.