Lapas attēli
[blocks in formation]

anyone else's.” 563 F. 2d, at 730; see NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 143 n. 10 (1975).

Nor does the legislative history provide more than ambiguous support for the Court's reading. There are statements by Senator Hart, the principal sponsor of the Exemption 7 amendment, that appear favorable. But these statements, made on the floor of the Senate, are not very clear on the point in dispute. Thus while Senator Hart noted that the original intent of the 1966 provision was to deny "an opposing litigant earlier or greater access to investigative files than he would otherwise have,” 120 Cong. Rec. 17033 (1974), reprinted in 1975 Source Book 332, he also said that Exemption 7 (A) "would apply whenever the Government's case in court& concrete prospective enforcement proceeding—would be harmed by the premature release of evidence or information not in the possession of known or potential defendants.” Id., at 333. If Exemption 7 (A) were intended to authorize nondisclosure in every pending proceeding, it is doubtful that Senator Hart would have spoken in terms of "whenever the Government's case in court ... would be harmed by the premature release ...." I find equally unilluminating statements to the effect that the 1974 amendment was not intended to work "a radical departure from existing case law under the Freedom of Information Act.” Id., at 334 (remarks of Sen. Hart).

The one point that emerges with clarity is that Congress intended that "the courts look ... to the reasons for the seventh exemption before allowing the withholding of documents.Ibid. But it is difficult to reconcile that principle with the underlying rationale of the Court's opinion that “the release of information in investigatory files prior to the completion of an actual, contemplated enforcement proceeding was precisely the kind of interference that Congress continued to want to protect against.” Ante, at 232. Congress had before it several proposals that would have drawn the line between

[blocks in formation]

files in "pending or contemplated” proceedings and files in "closed" cases. These were not adopted. One must assume that a deliberate policy decision informed Congress' rejection of these alternatives in favor of the language presently contained in Exemption 7 (A). Moreover, as the Court notes, ante, at 229 n. 10, at least two of the decisions of the Court of Appeals for the District of Columbia Circuit that Congress intended to overrule “involved files in still-pending investigations.” See Ditlow v. Brinegar, 161 U. S. App. D. C. 154, 494 F. 2d 1073, cert. denied, 419 U. S. 974 (1974); Center for National Policy Review v. Weinberger, 163 U. S. App. D. C. 368, 502 F. 2d 370 (1974). Senator Hart stated that these cases, among others, were wrongly decided because the courts failed to approach the disclosure issue "on a balancing basis, which is exactly what this amendment seeks to do.” 1975 Source Book 349.

The Court's approach in this case also is in tension with Congress' most recent amendment to the Act. Congress in 1976 overturned our decision in FAA Administrator v. Robertson, 422 U. S. 255 (1975), which held that Exemption 3, 5 U. S. C. § 552 (b)(3), should not be interpreted to disturb a broad delegation of authority to an agency to withhold information from the public. Pub. L. No. 94-409, $ 5 (b)(3), 90 Stat. 1247. Congress tightened the standard for Exemp

5 See 2 Hearings on S. 1142 et al. before the Subcommittees on Administrative Practice and Procedure and Separation of Powers of the Senate Judiciary Committee and the Subcommittee on Intergovernmental Relations of the Senate Committee on Government Operations, 93d Cong., 1st Sess., 2 (1973) (Sen. Kennedy); id., at 227 (Dept. of Justice), discussed in 1975 Source Book 339; id., at 338 (Committee on Federal Legislation of the Assn. of Bar of City of New York).

6 In Center for National Policy Review, for example, the court held that Exemption 7 permitted the Secretary of Health, Education, and Welfare to resist disclosure of the material of 22 "open and active" files involving agency review of public school discrimination practices in northern localities.

[blocks in formation]

tion 3 "to exempt only material required to be withheld from the public by any statute establishing particular criteria or referring to particular types of information," and rejected Robertson, which was viewed as "afford[ing] the FAA Administrator cart[e] blanche to withhold any information he pleases ...." H. R. Rep. No. 94–880, pt. 1, p. 23 (1976). The Court's ruling today appears to afford an agency similar carte blanche authority to withhold witness statements in investigatory files, at least during the pendency of an enforcement proceeding.

The Court appropriately recognizes the danger that FOIA claims are "likely to cause substantial delays in the adjudication of unfair labor practice charges." Ante, at 237–238. But Congress had a right to insist, as I believe it did in the 1974 legislation, that nondisclosure of investigatory records be grounded in one of the six specific categories of harm set out in Exemption 7, even though litigation may ensue over disputed claims of exemption.

II As the Court demonstrates, the congressional requirement of a specific showing of harm does not prevent determinations of likely harm with respect to prehearing release of particular categories of documents. The statements of the Act's sponsors in urging an override of President Ford's veto of the 1974 amendments shed light on this point. The President's message to Congress explained that "confidentiality would not be maintained if many millions of pages of FBI and other investigatory law enforcement files would be subject to compulsory disclosure at the behest of any person unless the Government could prove to a court-separately for each paragraph of each document

that disclosure 'would cause a type of harm specified in the amendment." 1975 Source Book 484. The bill's proponents discounted the President's concern. See id., at 405-406 (remarks of Rep. Moorhead); id., at 451-452

[blocks in formation]

(remarks of Sen. Hart). As then Attorney General Levi observed: “This legislative history suggests that denial can be based upon a reasonable possibility, in view of the circumstances, that one of the six enumerated consequences would result from disclosure.” Attorney General's Memorandum on the 1974 Amendments to the Freedom of Information Act 13 (1975), reprinted in 1975 Source Book 523.

A In my view, the Board has demonstrated a "reasonable possibility” that harm will result from prehearing disclosure of statements by current employees that are damaging to their employer's case in an unfair labor practice proceeding. The Courts of Appeals have recognized with virtual unanimity that due to the “peculiar character of labor litigation (,) the witnesses are especially likely to be inhibited by fear of the employer's or-in some cases—the union's capacity for reprisal and harassment.” Roger J. Au & Son, Inc. v. NLRB, 538 F. 2d 80, 83 (CA3 1976). The "delicate” relationship between employer and employee or between union and employee member-suggests that "[t]he labor case is peculiarly susceptible to employer (or union) retaliation, coercion, or influence to the point that it can be concluded that there is no need for an express showing of interference in each case to justify giving effect to the exemption contained in Section 7 (A) in

* The Court of Appeals in this case also recognized that "there may be some risk of interference with Board proceedings in the form of witness intimidation from harassment of an employee-witness during the five days prior to the hearing, done in an effort to silence him or dilute the nature of his testimony." 563 F. 2d 724, 732 (CA5 1977). It determined, however, that the Board had failed to introduce any evidence tending to show that such intimidation was likely, and declined to accept the Board's assertion that “in every case the potential for intimidation is so great as to require nondisclosure of all statements and affidavits.” Id., at 732-733 (emphasis supplied).

[blocks in formation]

Labor Board proceedings." Climax Molybdenum Co. v. NLRB, 539 F. 2d 63, 65 (CA10 1976).

The Board knows from experience that an employer or a union charged with an unfair labor practice often can exercise special influence-either through threats or promises of benefit over employees or members whose welfare and opportunity for advancement depend on remaining in the good graces of the charged party. Accordingly, the Court has construed § 8 (a)(4) of the National Labor Relations Act, as amended, 61 Stat. 140, 29 U. S. C. $ 158 (a)(4), to protect employees who give written sworn statements to a Board field examiner even when they do not file a charge or testify at a formal hearing on the charge. NLRB v. Scrivener, 405 U. S. 117 (1972).

Although the Board may be able to impose post hoc sanctions for interference with its witnesses, see 29 U. S. C. $$ 158 (a)(4) and 162; 18 U. S. C. $ 1505 (1976 ed.), these remedies cannot safeguard fully the integrity of ongoing unfair labor practice proceedings. Intimidation or promise of benefit may be subtle and not susceptible of proof. As the Board cannot proceed without a charge filed by knowledgeable individuals, see Nash v. Florida Industrial Comm'n, 389 U. S. 235, 238 (1967), many instances of interference could go undetected. Even if interference is detected and a complaint is filed, appropriate sanctions often cannot be imposed until after the initial unfair labor practice proceeding has terminated. Moreover, as the Court notes, many employees, mindful of the

8 The Court's substantive labor law rulings have "take[n] into account the economic dependence of the employees on their employers, and the necessary tendency of the former, because of that relationship, to pick up intended implications of the latter that might be more readily dismissed by & more disinterested ear." NLRB v. Gissel Packing Co., 395 U. S. 575, 617 (1969); see Textile Workers v. Darlington Co., 380 V. S. 263 (1965); NLRB v. Exchange Parts Co., 375 U. S. 405 (1964). Similar considerations apply to statements made or inducements offered by labor unions. See, e.g., NLRB v. Savair Mfg.Co., 414 U. S. 270 (1973).

« iepriekšējāTurpināt »