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statements, whether the witness is favorable or adverse, employee or nonemployee. While those drafting discovery rules for the Board might determine that this "interference" is one that should be tolerated in order to promote a fairer decisionmaking process, that is not our task in construing FOIA.


The basic purpose of FOIA is to ensure an informed citizenry, vital to the functioning of a democratic society, needed to check against corruption and to hold the governors accountable to the governed. 1974 Source Book 38; see also NLRB v. Sears, Roebuck & Co., 421 U. S., at 152. Respondent concedes that it seeks those statements solely for litigation discovery purposes, and that FOIA was not intended to function as a private discovery tool, see Renegotiation Board v. Bannercraft Clothing Co., 415 U. S., at 22.22 Most, if not all, persons who have sought prehearing disclosure of Board witnesses' statements have been in precisely this posture parties respondent in Board proceedings.23 Since we are dealing here with the narrow question whether witnesses' statements must be released five days prior to an unfair labor practice hearing, we cannot see how FOIA's purposes would be defeated by deferring disclosure until after the Government has “presented its case in court.” Cf. NLRB v. Sears, Roebuck & Co., supra, at 159–160.

Consideration of the underlying policy of the Act as it applies in this case thus reinforces our conclusion that Congress, having given no explicit attention to this problem in its 1974 legislation, could not have intended to overturn the NLRB's longstanding rule against prehearing disclosure of

22 Tr. of Oral Arg. 31, 34.

23 This is not to suggest that respondent's rights are in any way diminished by its being a private litigant, but neither are they enhanced by respondent's particular, litigation-generated need for these materials. See EPA v. Mink, 410 U. S. 73, 86 (1973).

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witness statements. It was Congress' understanding, and it is our conclusion, that release of such statements necessarily "would interfere" in the statutory sense with the Board's "enforcement proceedings." We therefore conclude that the Court of Appeals erred in holding that the Board was not entitled to withhold such statements under Exemption 7 (A). The judgment of the Court of Appeals is, accordingly,



The "act of meddling in” a process is one of Webster's accepted definitions of the word "interference." A statute that authorized discovery greater than that available under the rules normally applicable to an enforcement proceeding would "interfere” with the proceeding in that sense. The Court quite correctly holds that the Freedom of Information Act does not authorize any such interference in Labor Board enforcement proceedings. Its rationale applies equally to any enforcement proceeding. On that understanding, I join the opinion.

MR. JUSTICE POWELL, with whom MR. JUSTICE BRENNAN joins, concurring in part and dissenting in part.

I join the Court's opinion to the extent that it holds that Exemption 7 (A) of the Freedom of Information Act (Act or FOIA), 5 U. S. C. $ 552 (b)(7)(A) (1976 ed.), permits the federal courts to determine 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.'” Ante, at 236.

*One of the definitions of "interference" is "the act of meddling in or hampering an activity or process." Webster's Third New International Dictionary 1178 (1961).

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I endorse the limitation of such "generic determinations of likely interference,” ibid., to "an imminent adjudicatory proceeding" that is "necessarily of a finite duration," ante, at 229 n. 10. I also agree that the National Labor Relations Board (Board) has sustained its burden of justifying nondisclosure of statements by current employees that are unfavorable to their employer's cause in an unfair labor practice proceeding against that employer. But I cannot accept the Court's approval of the application of the Board's rule of nondisclosure to all witness statements, unless and until a witness gives direct testimony before an administrative law judge. And I disagree with the Court's apparent interpretation of Exemption 7 (A) as providing no "earlier or greater access" to records than that available under the discovery rules that an agency chooses to promulgate. See concurring opinion of MR. JUSTICE STEVENS, ante, p. 243. There is no persuasive evidence that Congress in 1974 intended to authorize federal agencies to withhold all FOIA-requested material in pending proceedings by invoking restrictive rules of discovery promulgated under their "housekeeping" rulemaking authority.


The starting point is the language of Exemption 7 (A). Congress provided for the nondisclosure of “investigatory records compiled for law enforcement purposes, but only to the extent that the production of such records would (A) interfere with enforcement proceedings ...." Establishing a presumption of disclosure, the Act "does not authorize withholding of information or limit the availability of records to the public,

1 The FOIA was enacted in 1966 as a remedy for agency "housekeeping" rules that had restricted unduly public information about the operations of Government. See H. R. Rep. No. 1497, 89th Cong., 2d Sess., 3-6 (1966); S. Rep. No. 813, 89th Cong., 1st Sess., 3, 5 (1965). Congress intended to establish legislative standards for nondisclosure of official information and to empower the federal courts to review claims of agency noncompliance with those standards.

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except as specifically stated in this section.” 5 U. S. C. $ 552 (c) (1976 ed.). Moreover, “[a]ny reasonably segregable portion of a record shall be provided to any person requesting such record after deletion of the portions which are exempt under this subsection." $ 552 (b).

The language of Exemption 7 (A) simply cannot be squared with the Court's conclusion that "giving a party litigant earlier and greater access to the Board's case than he would otherwise have" under agency rules is "the kind of harm that Congress believed would constitute an 'interference' with NLRB enforcement proceedings . ." Ante, at 241. It is instructive to compare the 1974 amendment with the 1966 version of the "investigatory files” exemption. Exemption 7 as originally enacted permitted nondisclosure of investigatory files compiled for law enforcement purposes except to the extent available by law to a private party.” 80 Stat. 251. Congress in 1974 abandoned the language that keyed the standard of disclosure to that available generally to private litigants.» In its place, Congress prescribed that the withholding of investigatory records be based upon one or more of six specified types of harm. That change in language suggests that Congress may have intended a more focused inquiry into the likelihood of harm resulting from disclosure of investigatory records than was possible under a standard defining the scope of disclosure in terms of an agency's rules of discovery."

2 The exception clause first appeared in a post-passage amendment on the floor of the Senate to accommodate Senator Humphrey's desire that the investigatory files exemption shield from disclosure prehearing statements of NLRB witnesses. 110 Cong. Rec. 17666–17668 (1964), reprinted in Subcommittee on Administrative Practice and Procedure, Senate Judiciary Committee, Freedom of Information Act Source Book, S. Doc. No. 93-82, pp. 109, 111 (1974).

3 Congress did not disturb similar language contained in Exemption 5, 5 U. S. C. $ 552 (b) (5) (1976 ed.). See EPA v. Mink, 410 U. S. 73, 85–86 (1973).

* Although the Committee Reports and the debates appear to be silent on

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The Court of Appeals in this case observed that “[i]f the mere fact that one could not have obtained the document in private discovery were enough, the Board would have made naught of the requirement that nondisclosure be permitted ‘only to the extent that ... production ... would ... interfere' in some way" with the proceeding. 563 F. 2d 724, 730 (CA5 1977). There also is force to the Court of Appeals' view that such a standard is unworkable because the courts have not accorded uniform recognition to the Board's authority to deny rights of discovery to litigants in proceedings before it. Moreover, that court noted that a discovery standard may require an assessment of the particular needs of the FOIA plaintiff when the Act mandates release of information "to any person,” 5 U. S. C. $ 552 (a)(3) (1976 ed.), incorporating the principle that "anyone's case is as strong (or as weak) as

the point, the deletion of the exception clause has been viewed as evidence of an intent to broaden the scope of disclosure under Exemption 7. See Fuselier & Moeller, NLRB Investigatory Records: Disclosure Under the Freedom of Information Act, 10 U. Rich. L. Rev. 541, 546 (1976). Others have attached little significance to this change in language. See Attorney General's Memorandum on the 1974 Amendments to the Freedom of Information Act 5 n. 3 (1975), reprinted in House Committee on Government Operations and Senate Committee on the Judiciary, Freedom of Information Act and Amendments of 1974 (Pub. L. 93–502) Source Book, 94th Cong., 1st Sess., 515 (Joint Comm. Print 1975) (hereinafter cited as 1975 Source Book); Ellsworth, Amended Exemption 7 of the Freedom of Information Act, 25 Am. U. L. Rev. 37, 45–46, n. 39 (1975). In an early decision, the clause had been construed “to limit persons charged with violations of federal regulatory statutes to the discovery available to persons charged with violations of federal criminal law.” Bristol-Myers Co. v. FTC, 138 U. S. App. D. C. 22, 26, 424 F. 2d 935, 939, cert. denied, 400 U. S. 824 (1970). See Note, The Freedom of Information Act: A SevenYear Assessment, 74 Colum. L. Rev. 895, 948, and n. 291 (1974). The proviso later was relied on by the same court to deny disclosure to an FOIA litigant who would not have been a "party" engaged in litigation with an agency. See Weisberg v. United States Dept. of Justice, 160 U. 8. App. D. C. 71, 79 n. 15, 489 F. 2d 1195, 1203 n. 15 (1973) (en banc), cert. denied, 416 U. S. 993 (1974).

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