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Board's prehearing settlement practice, may be willing to cooperate with the Board because they know that their identity will not be revealed and they will not be called to give public testimony adverse to their employer's interest unless such a course is absolutely necessary.
Until the Board's view here is proved unfounded, as an empirical matter, I agree that the danger of altered testimonythrough intimidation or promise of benefit-provides sufficient justification for the judgment that disclosure of unfavorable statements by current employees prior to the time when they are called to give testimony before an administrative law judge, "would interfere with enforcement proceedings ...
B But the Court holds that all “witness statements in pending unfair labor practice proceedings are exempt from FOIA disclosure at least until completion of the Board's hearing. ...' Ante, at 236. I find no warrant for that sweeping conclusion in the expressed intention of the 93d Congress. Exemption 7 (A) requires that the Board demonstrate a reasonable possibility that disclosure would "interfere with enforcement proceedings ... .” In my view, absent a particularized showing of likely interference, statements of all witnesses other than current employees in proceedings against employers (or union members in proceedings against unions)--are subject to the statutory presumption in favor of disclosure. In contrast to the situation of current employees or union members, there simply is no basis for presuming a particular likelihood of employer interference with union representatives or others not employed by the charged party, or, in a proceeding against a union, of union interference with employer representatives and other nonmembers of the union or the bargaining unit. Simi
9 Similarly, the Board may protect against prehearing disclosure statements by union members and employees unfavorable to the union's cause in an unfair labor practice proceeding.
larly, I am unwilling to presume interference with respect to disclosure of favorable statements by current employees, and would require the Board to show a reasonable possibility of employer reprisal. See Temple-Eastex, Inc. v. NLRB, 410 F. Supp. 183, 186 (ED Tex. 1976).
I do not read the Act to authorize agencies to adopt or adhere to nonstatutory rules 10 barring all prehearing disclosure of investigatory records. The Court reasons, ante, at 241, that such disclosure—which is deemed “premature” only because it is in advance of the time of release set by the agency—will enable "suspected violators ... to learn the Board's case in advance and frustrate the proceedings or construct defenses which would permit violations to go unremedied ...." Title Guarantee Co. v. NLRB, 534 F. 2d 484, 491 (CA2), cert. denied, 429 U. S. 834 (1976). This assumption is not only inconsistent with the congressional judgment expressed in the Federal Rules of Civil Procedure that "trial by ambush,” New England Medical Center Hosp. v. NLRB, 548 F. 2d 377, 387 (CA1 1976); Capital Cities Communications, Inc. v. NLRB, 409 F. Supp. 971, 977 (ND Cal. 1976), well may disserve the cause of truth, but it also threatens to undermine the Act's overall presumption of disclosure, at least during the pendency of enforcement proceedings."
10 It may be that criminal law enforcement agencies will be able to resist pretrial disclosure of witness statements on the theory that the Jencks Act, 18 U. S. C. $ 3500 (a) (1976 ed.), falls within the terms of Exemption 3 of the Act; see supra, at 248–249.
11 I do not construe the Court's ruling today to authorize agencies to withhold disclosure of materials generated in closed or otherwise inactive proceedings, absent a particularized showing of harm, even though the Board itself would like this authority. Brief for Petitioner 33 n. 17. The Board has advanced this view in the Courts of Appeals with some success. Compare New England Medical Center Hosp. v. NLRB, 548 F. 2d, at 385–386 (records generated in a related, inactive investigation held protected against disclosure), with Poss v. NLRB, 565 F. 2d 654, 657 (CA10 1977) (statements taken in an investigation that ended in a decision not to issue a complaint held not protected).
There may be exceptional cases that would permit the Board to withhold all witness statements for the duration of an unfair labor practice proceeding. Such a situation could arise where prehearing revelation would divulge incompletely developed information which, if prematurely disclosed, may interfere with the proceedings before the Board, or where the facts of a case suggest a strong likelihood that the charged party will attempt to interfere with any and all of the Board's witnesses. The Act requires, however, that the Board convince a federal court that there is a reasonable possibility of this kind of interference.12
I would reverse the judgment of the Court of Appeals to the extent that it requires prehearing disclosure of unfavorable statements by respondent's current employees, but affirm as to any remaining statements in dispute.18
12 In light of my view of the limits of Exemption 7 (A), I reach the Board's alternative argument that the witness affidavits in dispute are protected against disclosure by Exemption 5, 5 U. S. C. $ 552 (b) (5) (1976 ed.). That section provides that the Act does not apply to "interagency or intra-agency memorandums or letters which would not be available by law to a party other than any agency in litigation with the agency. ... I agree generally with the analysis of the Court of Appeals that the purpose of this Exemption is to protect agency litigation strategy and decisionmaking processes, and not to incorporate fully the "work product” privilege recognized in Hickman v. Taylor, 329 U. S. 495 (1947), and Fed. Rule Civ. Proc. 26 (b) (3). Our decision in NLRB v. Sears, Roebuck & Co., 421 U. S. 132, 154-155, 159–160 (1975), provides support for this view. In this case, by contrast, the Board does not suggest that the witness affidavits in question are anything other than verbatim transcripts of statements made by witnesses to Board personnel.
13 There is no need for a remand in this case, cf. Harvey's Wagon Wheel, Inc. v. NLRB, 550 F. 2d 1139, 1143 (CA9 1976), for the Board conceded in the District Court that "[t]here's nothing unique in Board proceedings in these statements .
FIRST FEDERAL SAVINGS & LOAN ASSOCIATION OF BOSTON ET AL. v. TAX COMMISSION OF
MASSACHUSETTS ET AL.
APPEAL FROM THE SUPREME JUDICIAL COURT OF
No. 77–334. Argued March 21, 1978-Decided June 15, 1978
Appellants brought suit in a Massachusetts court challenging the State's
power to impose an excise tax on federal savings and loan associations as measured by their net operating income, claiming that the tax violates $ 5 (h) of the Home Owners' Loan Act of 1933, which provides that no tax on a federal savings and loan association shall be "greater than that imposed” by the State on similar local thrift and home financing institutions. Appellants claimed that the state tax on their net operating income exceeds that imposed on similar local institutions because the deduction available under the state tax statute for "minimum additions to its guaranty fund or surplus required by law or the appropriate federal and state supervisory authorities” is generally lower for federal savings and loan associations than for similar state savings institutions. Appellants also contended that because the Massachusetts tax does not apply to credit unions, which, appellants maintained, are "similar" to federal savings and loan associations, the associations are entitled to the credit unions' exemptions. The Supreme Judicial Court of Massachusetts upheld the statute. Held:
1. The Massachusetts tax is not discriminatory on its face. The amount of the deduction depends on varying regulatory practices as to the reserves that must be maintained, but a tax is not invalid because it recognizes that state and federal regulations may differ. Nor does the record show any discrimination in fact, or in statutory purpose (federal reserve requirements were as high as the State's when the tax was enacted). Pp. 257-260.
2. Credit unions are not "similar” to federal savings and loan associations within the meaning of 85 (h), as is clear not only from distinctions between the two under both federal and state law but also from the fact that Massachusetts savings banks and cooperative banks are more competitive with federal associations than credit unions are. Congress recognized that States might classify their own institutions in various ways, as Massachusetts has done in excluding credit unions from a large
classification that includes state institutions more closely resembling the
federal associations. Pp. 260–262. 372 Mass. 478, 363 N. E. 2d 474, affirmed.
STEVENS, J., delivered the opinion of the Court, in which BURGER, C. J., and BRENNAN, STEWART, WHITE, MARSHALL, POWELL, and REHNQUIST, JJ., joined. BLACKMUN, J., filed an opinion concurring in part and dissenting in part, post, p. 263.
Chester M. Howe argued the cause for appellants. With him on the briefs was Maxwell D. Solet.
S. Stephen Rosenfeld, Assistant Attorney General of Massachusetts, argued the cause for appellees. With him on the brief were Francis X. Bellotti, Attorney General, and John E. Bowman, Jr., and Margot Botsford, Assistant Attorneys General.*
MR. JUSTICE STEVENS delivered the opinion of the Court.
This appeal challenges the power of the State of Massachusetts to impose a tax on federal savings and loan associations. Relying on a federal law forbidding States to tax federal associations more heavily than “similar” state institutions, appellants contend that the State's tax discriminates against federal associations because: (1) the state institutions subject to the tax are allowed a larger deduction for required additions to reserves than federal associations, and (2) the state tax does not apply to credit unions, which appellants believe to be "similar" to federal savings and loan associations.
In the Home Owners' Loan Act of 1933, Congress authorized the creation of federally chartered savings and loan associations. 48 Stat. 128. Section 5 (h) of that Act, as amended, 76 Stat. 984, 12 U. S. C. § 1464 (h) (1976 ed.), provides:
“No State, county, municipal, or local taxing authority
*Solicitor General McCree, Assistant Attorney General Ferguson, Stuart A. Smith, and David English Carmack filed a brief for the United States as amicus curiae urging reversal.