NLRB v. SEARS, ROEBUCK & CO.

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Argument of Friedman

Chief Justice Warren E. Burger: We'll hear arguments next in number 73-1233, National Labor Relations Board against Sears, Roebuck.

Mr. Friedman, I think you may proceed whenever you're ready.

Mr. Friedman: Mr. Chief Justice, may it please the Court.

The question in this case here on the writ certiorari to the Court of the Appeals for the District of Columbia Circuit is whether the Freedom of Information Act requires the disclosure of certain documents generated by the General Counsel of the National Labor Relations Board so-called Advice and Appeals Memoranda which relate to the prosecution of unfair labor practices before the Board by the General Counsel.

And order to put the issue in context, I would like at the outset to describe briefly the procedures that are followed within the General Counsel's office in the deciding whether or not to prosecute an unfair labor practice charge before the Board.

As this Court is aware, the National Labor Relations Board itself has no authority to bring an unfair labor practice charge.

It can only act in response to a charge that has been filed with it.

If a charge is filed and any person can file a charge, then the General Counsel if he wishes to may prosecute the charge but only in response to someone else bringing a matter to the attention of the Board formally, may the Board issue an unfair labor practice complaint.

Now, the General Counsel of the Board, who is a presidential appointee, serves two functions in connection with the having of cases before the Board.

First, he is the one when a complaint has been issued who prosecutes the case before the Board, but secondly he has final authority to determine whether or not a complaint should be issued.

That is, if after examining the case, the General Counsel decides not to issue a complaint that is the end of that case as far as the Board is concerned.

Justice Potter Stewart: And it's wholly unreviewable, is it not?

Mr. Friedman: Wholly unreviewable held by a number of courts to that effect.

Now, the General Counsel in turn has delegated to the Board's Regional Directors of whom there are some 30th, the authority initially took process unfair labor process charges.

When a charge is filed with one of the Regional Directors he investigates that he ordinarily will interrogate witnesses, look at documents and so on.

And after he has completed his investigation, there are three possible things he may do.

First, he may conclude that there is nothing here that warrants the issuance of a complaint and he decides not to issue a complaint.

Secondly, he may conclude on the basis of his investigation that there's enough here to warrant the issuance of a complaint and he issues the complaint.

Or third, he may submit the merit to the General Counsel's Office in Washington for advice on whether or not he should issue a complaint.

The General Counsel has put out instructions to the Regional Directors that they are to refer two categories of cases to Washington for advice.

One, case that present novel or complex problems or two, cases that involve certain issues which the General Counsel has specified should be submitted to him in Washington in order to assure a uniform prosecutorial policy with respect to these cases.

Now, when the General Counsel receives from the Regional Director a request for advice, the matter submitted to something called the Office of Appeals in the General Counsel's Office where the case is thoroughly and carefully reviewed by a number of people.

And this review process culminates in something called an “Advice Memorandum”, in which the General Counsel sometimes act himself more frequently acting through the man in charge of the Office of Advice, advices the Regional Director on whether or not he should issue a complaint.

This Advice Memoranda, the General Counsel gives the reasons for his decision, discusses the evidence of the case, analyzes Board precedents and if the advice is that a complaint should issue generally gives the theory upon which he believes the case should proceed.

Now, although the representative examples that are included in the record of Advice Memoranda contain nothing making any reference to the possibility of settlements.

The report -- the two reports in this record presented by the Practice and Procedure Committee of the Labor Law Section of the American Bar Association on which Sears relies very heavily.

And in one of those reports, set forth at page 71 of the appendix, the Committee which represents of course the experts in this field both on the labor and the management side, recognizes that not infrequently, this Advice Memoranda will refer to settlement possibilities.

It's in the middle of page 71 and the statement is, “the response to the region will sometimes include specifics with respect to the kind of settlement or other action and will set forth the theories upon which such cause of action is based.”

And I stressed that because the ultimate question in the case is what these things are.

Are they just a statement of legal position or do they involve something more.

They basically reflect to the strategy, the litigation strategy of the General Counsel has recommended be followed.

And we think the fact that they refer to settlement negotiations and suggest a basis upon settlement, to us is very clear evidence of that.

Now, if the Regional Director should decide not to issue a complaint either because of the advice he has received from the General Counsel or because his own investigation indicates that a complaint is not appropriate, then the charging party has the right to appeal that determination to the General Counsel.

The matter is then similarly reviewed except by different office by something called the Office of Appeals.

If the Office of Appeals upholds the Regional Director's determination, it so advises him and the parties that there are rather brief statement giving the reasons for his decision.

If however, the Regional Counsel is reversed and the General Counsel concludes that a complaint should issue, they then prepare something called an Appeals Memoranda.

And the Appeals Memoranda is similar to the Advice Memoranda and that it too describes the case suggest theories, gives the reasoning of the General Counsel.

Now, it's these two categories --

Justice Potter Stewart: And the Appeals Memorandum is sent back to the Regional?

Mr. Friedman: To the Regional Director.

Justice Potter Stewart: And to nobody else?

Mr. Friedman: To nobody else, that's what they -- these are the two things they want to see.

Justice Potter Stewart: Yes, I know that.

Mr. Friedman: This is -- now this is an internal document in which the General Counsel explains to the Regional Director why he thinks the case should go forward.

Suggest the legal theories of the case, discusses the evidence, may again refer to settlement negotiations and will discuss the applicable board and court precedents.

And I'd like to just make one other point of here, because the claim is that somehow, these Appeals Memoranda represent the law of the General Counsel.

They are not the law of the General Counsel, the General Counsel makes no law, all he does is applies the law as the Board and courts have developed it.

He is the prosecuting arm, the prosecuting arm of the Board in handling of this unfair labor practice during --

Justice Potter Stewart: There is an appeal only in the event the Regional Director decides not to.

Mr. Friedman: That is correct.

Justice Potter Stewart: And how -- what are the mechanics to that appeal?

I did not know about that appeal before.

Mr. Friedman: Oh!

The mechanics of that appeal are that the charging party who --

Justice Potter Stewart: First of all the Regional Director, I suppose, has to advise the charging party --

Mr. Friedman: He advises --

Justice Potter Stewart: Or if he decided not to.

Mr. Friedman: He advises the charging party.

There are some examples of that giving the reasons why he has decided not to issue a complaint.

Advising the charging party, I believe, that's within 10 days that he may appeal to the General Counsel.

Justice Potter Stewart: And then how is that appeal --

Mr. Friedman: That is a written piece of paper that is sent to the General Counsel indicating why the charging party believes that a complaint should issue in this case.

If the charging party wishes to he may have the opportunity to argue orally before the General Counsel's Office in Washington.

Justice Potter Stewart: But it's just -- it's an ex parte appeal, the potential chargee is not defined.

Mr. Friedman: No, no.

Potential -- no.

The potential chargee is not a party, although, the potential chargee may have the opportunity if he wishes to be heard also.

This is a relatively infrequent thing.

Justice Potter Stewart: He is --

Justice William H. Rehnquist: Not simultaneous?

Mr. Friedman: No, no.

There's no -- there's nothing comparable to the argument before this Court.

Justice Potter Stewart: Right.

Mr. Friedman: It's heard ex parte by each side.

Justice Potter Stewart: How does the charging -- potential chargee know about it?

Mr. Friedman: Oh!

He is given notice of the appeal by the -- when, I believe when the general -- when the charging party files a notice of appeal.

This notice is given to the chargee because --

Justice Potter Stewart: Is that first notice he gets?

Mr. Friedman: Of the appeal.

But no, when it charges filed initially --

Justice Potter Stewart: With the General Counsel -- with the --

Mr. Friedman: With the Regional Director, he informs the party charged?

Justice Potter Stewart: Who is he?

Mr. Friedman: The Regional Director.

Well, let me.

Under the Board's regulations, the charging party has a response ability to serve a copy of the charge upon the person charged.

Justice Potter Stewart: The chargee.

Mr. Friedman: So he is put on notice and normally in this situation, not normally but frequently, the Board or the Regional Director's representatives may interrogate the and go on and talk to the charged party to see what his side of the case is.

Justice Potter Stewart: Now.

Mr. Friedman: Because you get one side from the charging party, the charged party may have a wholly different point of view.

Justice Potter Stewart: Then the Regional Director, if and only if he decides with or without having sought it by Washington not to file a complaint --

Mr. Friedman: Yes.

Justice Potter Stewart: Then and then only is there an appeal.

Mr. Friedman: That's correct.

Justice Potter Stewart: And it's preliminarily an ex parte appeal.

Mr. Friedman: Yes.

Justice Potter Stewart: Later, there may be or is an opportunity by the potential chargee to be heard also in Washington.

Mr. Friedman: Yes.

Justice Potter Stewart: And is all -- and it's done on the papers but sometimes also on an oral hearing.

Mr. Friedman: Sometimes on an oral hearing with extensive review of the case in the Office of Appeals because that is assigned to a lawyer who studies it than a group of people study the case.

It's very extensively considered.

Justice Potter Stewart: And how long it processes this?

Mr. Friedman: Oh, it might be --

Justice Potter Stewart: In any given case?

Mr. Friedman: A week or two weeks.

Very -- I suppose depending on whether it's going to be a hearing.

What may sometimes happen occasionally when the case gets to the General Counsel's Office, it may be sent directly the General Counsel himself may consider.

And let me say that this is exactly, if I may come to this right now.

This is exactly what happened in this case.

In this case, what happened in this case --

Justice Potter Stewart: Well, just before you finish.

I want to get this procedure.

Mr. Friedman: Alright, let me try it.

Justice Potter Stewart: Because I didn't know anything about that until I read these briefs in this case.

Then if the General Counsel's Office upholds the decision of the Regional Director not to --

Mr. Friedman: Issue a choice.

Justice Potter Stewart: File a complaint then what?

Mr. Friedman: Then a notice to that effect is sent to the charging party and to the Regional Director and that's the end of it.

Justice Potter Stewart: That's the end of it and there's no memo and there's nothing --

Mr. Friedman: There's no -- there's no --

Justice Potter Stewart: There are no papers there in that kind of situation that are involve in this case.

Mr. Friedman: That's correct.

Justice Potter Stewart: Because there are none.

Mr. Friedman: There are none other than the letter which is a public document because sent to the parties.

Justice Potter Stewart: Just a notice?

Mr. Friedman: Yes.

There's no --

Justice Potter Stewart: So, it's only in the event that the tentative decision or the decision of the Regional Director is reversed.

Mr. Friedman: That is correct.

Justice Potter Stewart: That papers are produced that is --

Mr. Friedman: That's right.

Justice Potter Stewart: Among others of this lawsuit.

Mr. Friedman: That's right.

When in effect the General Counsel has made the decision to authorize the prosecution of the case, now the Mink case, that's -- what is involved in this lawsuit.

Justice Potter Stewart: And it is under the statute, his ultimate non-reviewable decision that is of the General Counsel.

Mr. Friedman: That is --

Justice Potter Stewart: It is just something that this is just delegated as a matter within the bureaucracy this portion of it to the Regional Director, right?

Mr. Friedman: The General Counsel has --

Justice Potter Stewart: Has a statutory --

Mr. Friedman: Authority and he is --

Justice Potter Stewart: Authority --

Mr. Friedman: Delegated to the Regional Director.

Justice Potter Stewart: To decide whether or not to file a complaint if --

Mr. Friedman: That is right.

Justice Potter Stewart: The charge has been filed.

Mr. Friedman: That is right and he is delegated to the Regional Director the initial processes in this complaint.

Justice Potter Stewart: Part of this decision.

Mr. Friedman: That is correct.

Justice Potter Stewart: Thank you very much.

Chief Justice Warren E. Burger: Is he -- the General Counsel has a tenure of office that's fixed by statute --

Mr. Friedman: Four years Mr. Chief Justice.

So, quite --

Chief Justice Warren E. Burger: So he can only be removed for cause, is that not so?

Mr. Friedman: I believe so, yes.

Let me just come back if I may if one more thing to talk -- describe a little bit about these Appeals Memoranda and the Advice Memoranda here.

All that they really decide, all that the General Counsel is deciding when he either recommends in the Advice Memorandum when he authorizes a complaint or in the -- at the Appeals Stage and the Appeals Memorandum when he tells them to go ahead and file it, is that this is a matter that ones presentation to the Board.

He is not deciding that there is a violation and that is shown rather explicitly.

In this record, there are at least three examples in the Advice and Appeals Memoranda and also in two letters sent to counsel for charging parties in which it explicitly stated that, this is a matter that warrants passing on by the Board.

Let me just refer the Court to two of these and then I'll cite the others at page 191 as Advice -- an Advice Memorandum which ends up that authorization of complaint was warranted to place the issues of the case before the Board.

And then at page 206, which is an Appeal Memorandum in the second full paragraph under reasons for actions it said.

“Issues were raised with respect to various issues which warranted Board determination on the basis of record testimony.”

Another example of that is at page 211 of the record and then at page 32 and 199 of the record, letters sent by the General Counsel to counsel for the charging parties.

Now, let me come to the facts of this case very briefly.

In this case, Sears filed -- Sears, Roebuck the respondent filed with the Regional Director a charge against a union alleging that the union had refused to bargain.

That alleged refusal of the bargain whether there was a refusal to bargain turned upon whether Sears had properly withdrawn from a multi-employer unit prior to the time that bargaining began.

This is a matter of some dispute within the Board.

There's a lot of Board precedents on this, a lot of litigation on this as to just when an employer or a union may withdraw from multi-unit bargaining.

The Regional Director referred this case to the General Counsel for advice.

The next thing that we know by the record is that the Regional Director advised Sears that he was not filing a complaint on the case.

Sears then appealed this to the General Counsel and the General Counsel reversed and advised Sears that a complaint would be filed stating and as again, coming back to what I said a minute ago that this case raised issues warranting Board determination.

That's at page 32 of the appendix and then the Board, the Regional Director subsequently issued a complaint.

Now, prior to the time that Sears appealed from the Regional Director's refusal to issue a complaint to the General Counsel.

It requested the General Counsel to furnish it under the Freedom of Information Act with three things.

First, the Advice Memorandum that the General Counsel had submitted to the Regional Director advising it not to issue a complaint in this case.

Secondly, all Advice and Appeals Memoranda relating to the same subject that is the timeliness of employer withdrawal from multi-employer bargaining units.

All of those Appeals and Advice Memoranda rendered within the past five years.

And third, an index or a digest to the Advice and Appeals Memoranda, what it stated was it needed this information in order to successfully prosecute its appeal to the General Counsel.

The General Counsel refused to furnish these memoranda under the Freedom of Information Act relying on exemptions 5 and 7 of the Act which is that I will discuss shortly, and also saying that these memos were not a final disposition of the case but were merely guides to the Regional Directors on how to prosecute the case.

Sears then filed this action in the District of Columbia District Court to obtain this information.

While the case was pending before the District Court, the General Counsel of the Labor Board announced that as a matter of discretion and not because it was required by the Freedom of Information Act, that he was going to make available to the public copies of all of the Appeals and Advice Memoranda in so-called close cases.

That is cases where the Board proceeding had been completed.

He stated that he was doing this in order to provide the public and the Labor Board with further information as to how this office was functioning.

Both sides in this case moved for summary judgment.

The District Court granted Sears motion and entered a rather broad order set forth at pages 9 to 10 of the record which directed the Board's General Counsel to provide all Advice and Appeals Memoranda.

Sears had broadened its claim in its complaint so we were directed to produce all Advice and Appeals Memoranda for the past five years including anything incorporated by reference and those things, that is if for example as we read the order, if the order directed them to produce an Appeals Memorandum and the Appeals Memorandum said for reasons stated in the Regional Director's Memorandum, we conclude we will not -- it was not to authorize complaint in this case, that would have to be produced.

They also -- it also said that where it used some vague language such as in the circumstances of this case, the General Counsel have to explicate that and explain exactly what was meant.

Now, let me say that this kind of thing in the circumstances of this case as set forth and the reasons given in the Appeals Memoranda or the advices of the -- the request for advice from the Regional Director.

This is just some kind of shorthanded phrases within in the informal administrative procedure that is followed.

What is done in this situation is the parties the General Counsel is dealing with the people in the Regional Director's Office and the region they are familiar with these things.

Justice William H. Rehnquist: Are you saying that the District Court required the General Counsel to prepare material that wasn't in existence in order to --

Mr. Friedman: It may.

It may Mr. Justice because when they -- what he said was, that defendants produce explanatory material including existing documents.

Justice Potter Stewart: What page is this?

Mr. Friedman: Page 10 (a) of the petition for certiorari where the District Court's opinion defend its produced explanatory material including existing documents and those instances were Advice or Appeals Memoranda rely upon the circumstances of the case or some other vague and imprecise reference without delineating what those circumstances are except where they can demonstrate that these documents are exempt under the Act which seems to us just leaves the thing very far-reaching.

Justice William H. Rehnquist: When they say including existing documents, the inference is perhaps that more than existing document.

Mr. Friedman: It may well be.

For example, if some of the basis for the action of the General Counsel's Office was in discussions -- in formal discussions are telephone conversations, they had with the people in the Regional Office would sometimes happens.

I assume they would have to unless they could show that these was exempt they would have to make this available.

They might have to reduce to writings some of the things if they had some notes.

They might have to make this into a formal memorandum.

The Court of Appeals summarily affirmed on the basis of the decision of the District Court and also cited its opinion in the Grumman case, which is another freedom of information case to be argued immediately after this case.

Now in the Freedom of Information Act, what Congress has done is to provide three different categories of information that are subject to production.

First is one category which has to be published in the Federal Register.

Then there's another category consisting of three components which has to be produced and indexed.

Finally, there is a third category of identifiable records which just have to be produced. But then the Act goes on in subsection (b) and list nine specific categories to which it says the Act does not apply.

Our submission to this Court is that three of those exemptions cover this material.

And if we are right in that, if we are right on any one of those, if any one of those exemptions covers this material, that of course is the end of the case.

You never have to reach the argument upon which Sears relies so heavily that these documents are comprehended within the three subcategories which are required to be published and indexed.

And so I will addressed primarily and perhaps exclusively depending how the time runs the reasons why we think the exemptions cover this and we have discussed the other issues fully in our brief.

Our principal reliance and our reliance in the lower court was on exemption number 5 which was before this Court two terms ago in the Mink case which provides for interagency or intra-agency memorandums or letters which would not be available by law to a party other than an agency in litigation with the agency.

There's no question that these are intra-agency memoranda.

This provision of the Act, I might add, is on page 14 (a) of our petition for certiorari and also will be found at page 56 of our brief on the merit.

Justice Byron R. White: Well, I take it.

I take it then that the Government doesn't contest the assertion that the General Counsel is an agency.

Mr. Friedman: We conceded that.

We conceded that in the District Court Mr. Justice --

Justice Byron R. White: Still do?

Mr. Friedman: We -- if I may say, we don't concede it but we don't contest it.

Justice Byron R. White: So, we treat the General Counsel separately from the Board for purposes of this case.

Mr. Friedman: For this purposes of this case, although if we didn't raise anything because we conceded in the District Court.

I think an argument could be made that he isn't, but we're not making that here.

Justice Byron R. White: So, is your argument just simply on the exemptions rather than on the earlier part of the Act.

Mr. Friedman: No.

We argued first the exemptions and then we argued the earlier part of it.

The distinction between them is, if we lose on the exemptions under subparagraph 3, all we're required to do is to produce them.

On the other hand, if they come within any of the three subcategories of the earlier part of the Act which we don't think apply were required not only to produce them but also to index them.

So that our reliance is first, we say we don't have to produce them because they're exempt.

Secondly, we say if we do have to produce them, if we do have to produce them, they're not under subparagraph 2 which are the three categories but under subparagraph 3 with respect to which there is no indexing required.

But we --

Justice Byron R. White: Mr. Friedman, I gather any question whether the General Counsel is an agency would have been resolved in any of this by the amendment of 1974?

Mr. Friedman: It may or may not have been.

But we're not, I want to make clear, we're not charging -- contesting that in this.

Justice Byron R. White: They keep going.

Any establishment in the Executive Branch of the Government that have --

Mr. Friedman: Well, that there some legislative history suggesting that perhaps Congress did not intend to deal with subcategories.

Justice Byron R. White: Well, let's -- suppose none of the exemptions apply, under what category specified in the early part of the Act would these memoranda -- would Advice or Appeals Memoranda fall?

Mr. Friedman: Well, it would certainly be identifiable records under page -- on page 55 of our brief subparagraph 3.

Justice Potter Stewart: At 522.

Mr. Friedman: At 522 (a) (3), they'd be identifiable records.

It's also contended that they are final opinions and this is on page -- subparagraph 2 at page 54 final opinions made in the adjudication of cases, statements of policy and interpret --

Justice Byron R. White: And do you -- do you say that they are not?

Mr. Friedman: We say they are not any of those three.

That's right.

Justice Byron R. White: Any of those three?

Justice Potter Stewart: But you can see that they are identifiable records?

Mr. Friedman: Yes.

Yes, we do.

Justice Byron R. White: But -- and you say they're not opinions?

I suppose you must mean that the General Counsel has no claimed opinions because he doesn't adjudicate?

Mr. Friedman: That's correct.

He doesn't run the final opinions because he doesn't adjudicate.

These are not interpretations which the General Counsel has adopted.

This isn't --

Justice Byron R. White: Why isn't there a rejection of a complaint and adjudication?

Mr. Friedman: Well, because we think that as used in the Freedom of Information Act, what Congress was referring to was a determination of the legal issue.

And the General Counsel has not determined the legal issue when he refuses to issue a complaint.

Justice Byron R. White: Was it an adjudication under the Administrative Procedure Act?

Mr. Friedman: It might be.

We would -- it might be but we would contest it and --

Justice Byron R. White: Well, is it or isn't it?

You don't think an adjudication -- you don't think the word adjudication in the Freedom of Information Act should have the meaning and has the --

Mr. Friedman: I think, I think it has.

I think in determining whether if something is an adjudication under the Freedom of Information Act.

You have to look at the purposes of that statute.

You have to look at the purposes of that statute.

Justice Byron R. White: So your answer is, no it doesn't have the meaning that it does?

Mr. Friedman: I -- I would say not in all cases.

And we also think finally that these are not administrative instructions to staff because the legislative history shows that administrative instructions -- that administrative instructions was put in there that specific modifying word was put in there to make it clear that this dealt with administrative matters and not instructions relating to law enforcement or litigation.

Let me just come to what the Court said in Mink about exemption 5.

What the Court said in Mink in exemption 5 was that, “their Congress incorporated the special and subtle rule that confidential intra-agency advisory opinions are not privileged from inspection and that the question in each case is whether production of the contested documents would be injurious to the consultative functions of Government that the privilege of nondisclosure protects.”

It also said that, “Congress in this exemption was intended to permit discovery of purely factual matters appearing in Government documents that could be separated out from the nonfactual.”

Now, we think that these documents, we think of the essence of Government consultative functions.

This is the way within the General Counsel's Office advice is set out to the field on whether to prosecutor case, how to prosecute a case, what theory is to be followed.

The documents -- these are not documents in which you can separate out the factual from the nonfactual.

They are intertwined.

They are inextricably intertwined because of theory of the case is tied with the facts.

Indeed, when the people in the General Counsel's Office marshaled the facts, explained the facts, that itself is the essence of a lawyer's job.

He looks at the facts, decides how to present the facts in a way that will be most effective.

It's really either is or is certainly analogous to the lawyers work product which traditionally is not available in discovery.

And indeed, I think it's very revealing at page 131 of the record in this case, that Sears itself apparently recognized that these documents are being sought for something more than just information.

They wanted them as they've said in order to help prepare to litigate this case, first to take the appeal and then to litigate it before the Board.

At page 131, a letter in which Sears requested the General Counsel to extend the time for its hearings stated, “that we need this material to prepare witnesses prior to the Board hearing.”

Well, any lawyer would be delighted if he could have access to the material in his opponent's files showing how his opponent was going to try the case, what its strategy was, how he feel the evidence, how we would marshal it.

That we submit is precisely the kind of information that Congress intended to protect against disclosure in exemption 5 of the Freedom of Information Act.

Chief Justice Warren E. Burger: Thank you, Mr. Friedman.

Mr. Smetana.

Justice Byron R. White: I suppose you agree Mr. Friedman that the statute is not a very well drawn statute?

Mr. Friedman: Well, it's a [Laughter Attempt] unfortunately, it's a difficult subject.

There have been recent amendments attempting to clarify but there are none of the recent amendments deals with exemption 5, I may say Mr. Justice.

It's a difficult think and I think basically, you got to look at the purpose of Congress in these amendments.

That this Congress recognized that there was a strong public interest in making things public but also that Government couldn't operate in a fishbowl and that in certain instances, it was important to preserve the confidentiality of Government material.

Argument of Gerald C. Smetana

Mr. Gerald C. Smetana: Mr. Chief Justice and may it please the Court.

I think in beginning, I would like to spend some time in responding to Mr. Friedman's arguments.

But perhaps, I ought first to give the Court just a basic outline of what our position is.

And that is, it is our position as opposed to the position of the Solicitor General that if the documents in question fall within 2 (a) (b) or (c) of the Freedom and are required to be disclosed as either final opinions in adjudication statements of policy or administrative instructions affecting staff?

Then, you never reach the exemptions because they are -- the exemptions in so far as the kinds of documents involved here are mutually exclusive for the reason that Your Honor, if in fact, these are declarations of substantive law and obviously, I have to develop that whole point, and if this is an agency which has been conceded.

And these are the declarations of this agency then it would be contrary to the very basic principles of the Freedom of Information Act to permit an agency simply by passing documents back and forth to create the very kind of secret law which the Freedom of Information Act was designed to avoid.

Chief Justice Warren E. Burger: Do you think that the Freedom of Information Act could reach the communications between the division of the Department of Justice or the Labor Board and the Solicitor General's Office?

Mr. Gerald C. Smetana: Your Honor, in answer to that question.

I must confess to begin that in terms of the specifics of all of the various agencies that might or might not be affected by a decision here, I cannot speak for it.

But I can answer it in this fashion, that the record does reflect what types of documents are involved here.

And the kinds of documents which you admitted, the documents -- the procedure that we follow here was before the Mink case that we agreed upon representative samples of the kinds of documents after 12 weeks of going through the documents in the General Counsel's Office and the Advice Memos when in fact documents that he gave us and the Appeals Memos were documents that we found.

These very documents however, do not deal with the kinds of information that Mr. Friedman speaks of.

Perhaps, except in rare occasion.

They do not speak of trial tactics.

They do not speak of settlements.

They do not -- they do one thing.

They informed the public or the parties as this presently the case as to what the law is.

Now, I would submit and ask you a question Your Honor, if the Justice Department as a prosecutorial agency were to inform people as to what the law is.

In other words, only the basis of their proceeding, not the how, not the witnesses, not how they are going to try the case, that's what's involved here.

And maybe, that in the nature of Justice Department, other agency proceedings, the instructions or the trial tactics or the names of witnesses, or the facts may be so intertwined that for that reason, those agencies documents may not have to be produced and may fall under one of the exemptions.

But in this case, where the documents are pure and pristine, questions of law and where the district court judge quite correctly and affirmed by the Court of Appeals struck and said that settlements, discussions, names of witnesses or anything else that's exempt can be eliminated from the documents.

And they can in the nature of this documents then I submit that we don't have a problem in terms of the very kinds of fears that Mr. Friedman quite properly sets forth.

Justice William H. Rehnquist: What if United States Attorney say in the District Court of Missouri, writes back to the criminal division of Justice Department and gives them a set of facts and wants to know whether you go ahead and maintain a prosecution?

And the criminal division replies, well, the Eighth Circuit the way its constituted now isn't up to go for this kind of a case, we think maybe the Seventh Circuit might be better so the way the law stands in those two Circuits wait for one to come up in the Seventh Circuit.

Mr. Gerald C. Smetana: I would submit that those are the very types of consultative functions that would be exempt under exemption of b (5).

Justice William H. Rehnquist: Even though their discussion strictly of legal points.

Mr. Gerald C. Smetana: Well, because the very nature of the hypothetical you gave me Your Honor is one that deals with instructions which are not involved in this case.

This case would be a situation where the Attorney General or the U.S. Attorney would not in Washington however would not give any instructions with respect to how to try the case, which Circuit is better but only as to what his view of the law is.

And with respect to anything else, that would remain confidential and not be subject to disclosure.

Justice Potter Stewart: I understood your position was just generally on the law that if a document falls under the definition of 552 (a) (b) or (c), then it is producible, you don't even get to the exception.

Mr. Gerald C. Smetana: That's correct.

Only because and I wouldn't say that's true.

Justice Potter Stewart: Well, and yet -- well, let me just follow that up.

If you say that's correct then of course it's when -- my brother Rehnquist's examples seem to me gave you in his hypothetical a document that probably would fall under either (b) or (c), and yet you conceded that the exception would be applicable.

Mr. Gerald C. Smetana: For this reason, Your Honor, I think we read (a) (b) and (c) as being -- as referring to that portion of a document that is the final opinion or the substantive law.

The Justice -- Mr. Justice Rehnquist example I would submit that if those portions were included in a document that also talked about what the law was, then those portions of the document would not be (a) (b) or (c).

They would merely by identifiable, as Mr. Friedman says under 3 and then they would be exempt under one of the exemptions (b) (5).

Justice Potter Stewart: Is that what the law is available to you as it is to the criminal division if you're only talking about published opinions of Courts of Appeals.

Mr. Gerald C. Smetana: What we are talking about here Your Honor as opposed to published opinions, are the secret law if you will of the General Counsel of the National Labor Relations Board.

Justice Potter Stewart: Right.

Mr. Gerald C. Smetana: And I call Your Honor's attention in that regard particularly to the quarterly report of the General Counsel.

Now, the General Counsel and this is on page 150 of the appendix.

Now, the General -- and it goes on and on.

Now, every quarter and that was four times a year, he selects certain cases, advice and appeals decisions, that he believes that would be helpful if the public knew how he was proceeding.

It's interesting to note that those cases cited in the appendix are cases in -- which are open cases, cases in which he is proceeding.

In fact, they go to the very point Mr. Justice Rehnquist made.

He has been able through the device of publication, although selective publication, those cases that each uses are simply limiting the announcements as what the law is.

And it's also significant that the General Counsel has been called -- I mean he has the unreviewable discretion to proceed or not to proceed and this Court is only too familiar with the complexities of the labor law.

And in those -- in exercising those decisions, he essentially shapes the law, because by not proceeding, he makes as much law as he does by proceeding.

Now, Mr. Friedman called your attention to the fact that --

Justice Byron R. White: Well, if he proceeds, it got to be made to the Board, I take it.

Mr. Gerald C. Smetana: Well, but it is a separate agency.

I call Your Honor --

Justice Byron R. White: I didn't -- that isn't what I asked you.

The law was going to be -- would be made in a -- where complaint is filed.

The law is going to be made by the Board.

Mr. Gerald C. Smetana: Yes, there's no question.

Justice Byron R. White: By the Board, not by the counsel.

Mr. Gerald C. Smetana: No question.

In that situation, the law is ultimately made.

However, if he was in error --

Justice Byron R. White: Well, that's really say when he turns down, something you say makes the law but he may reasons for turning them down, no doubt he does.

Do you call those reasons law?

Mr. Gerald C. Smetana: That's correct.

But I would submit, Your Honor, even when the decision is to proceed he makes law because in the nature of the way this agency operates, more than 90% of the cases are settled.

And so that, even after he decides to proceed, the case will be settled based on the theory at which the General Counsel has proceeded, it never gets to the Board.

Some cases -- some settlements are reviewed by the Board but most of them are informal in nature and are not reviewed by the Board.

And I also would like to call Your Honors attention, Mr. Friedman made a statement that when there's a decision to proceed after this appeals process he talked about, there is never a memo.

Now, it's admitted that there is rarely a memo.

But I think a very good case in point is the appendix that is to the chamber's amicus brief in this case.

That is about a 20-page opinion of the General Counsel.

On a case where he is dismissed on appeal and --

Justice William O. Douglas: Do you think it's a -- do you think the General Counsel's review or adjudicated?

Mr. Gerald C. Smetana: Yes, Your Honor.

There are adjudications for the very reasons stated in your opinion this morning in the ITT case.

The -- this is -- they are first of all decisions made not within an agency as the 10 (k) proceeding was in that situation but this is the agency.

And more importantly, on page 15 of the slip opinion in that --

Justice Byron R. White: Well, they ought to be reviewable then I take it.

Mr. Gerald C. Smetana: Well, that's not the before this Court today.

I would think they would be and -- but that's not my personal view and not the view of anyone else.

Chief Justice Warren E. Burger: But that is unreviewable did they not?

Mr. Gerald C. Smetana: The statute makes them unreviewable however there was a statement in Mr. Justice Douglas' dissent in the Lockridge case that indicates this Court has never pass upon that and there are decision of the DC Circuit and other circuits that indicate, that they might be reviewable on an abusive discretion basis.

Justice William H. Rehnquist: Well, if there are adjudications under the ABA you don't need the Freedom of Information Act to require that are made public.

The ABA requires findings of fact, conclusions of law.

Mr. Gerald C. Smetana: Well, Your Honor the fact is that they haven't been and in fact we are one of the very few people who've gotten here and to make them public.

I'm a member of that ABA Committee that's been working for 10 years that Mr. Friedman spoke about, they're trying to get these matters produced and it's the position of the ABA that they are public and are the law and we haven't been successful.

Justice Byron R. White: For you to win under 2 (a), you have to arrive at the conclusion that these are adjudication?

Mr. Gerald C. Smetana: No, Your Honor I do not.

Under 2 (a) alone, yes I do.

Justice Byron R. White: That's what I say, under --

Mr. Gerald C. Smetana: Yes.

Justice Byron R. White: 2 (a), you must say there are adjudication.

Mr. Gerald C. Smetana: That's right.

That's correct.

Chief Justice Warren E. Burger: We'll resume at that point in an hour.

Mr. Gerald C. Smetana: Thank you.

Chief Justice Warren E. Burger: Mr. Smetana, you may proceed.

Mr. Gerald C. Smetana: Mr. Chief Justice, may it please the Court.

If I, in resuming I think it might be most effective and efficient if we can go right into the heart of the argument that respondent wishes to present to the Court.

And that is, as I outlined at the outset that it is our contention that the documents here involved are the law of the general counsel under Section a (2).

And I think, I want to consider the three areas and the first is, is it a final opinion under 2 (a)?

With respect and of course the area in dispute is whether it is in the final opinion in the adjudication of the case.

Justice Potter Stewart: You're talking about both the Advice Memorandum and the Appeals Memorandum, you're lumping them together?

Mr. Gerald C. Smetana: Yes, Your Honor.

I think, in that regard, perhaps I ought just to say in passing that while they -- Mr. Friedman accurately described, they have a different genesis.

So far as there effect.

They are equal, they have an equal effect.

For example, in the situation, well perhaps the best example I can use is the paper -- the Appeals Memorandum attached to the Chamber's brief which I briefly refer to as to the appendix to the amicus brief.

That memorandum was prepared, it took the General Counsel probably the best part of the year of consultations, briefs, from the various parties, there are perhaps six of eight cases involving the particular question under a (e) of the Act, a very complex area which Your Honors have before you in the Connell case.

And as a matter of interest to the Court, to show the significance that the unions in the Connell case placed upon us that's 73-1256, Connell Construction versus Plumbers and Steamfitters Local 100.

They attached the identical memorandum to their -- as appendix to their brief to support their position.

Now, I'm not going to talk about whether there's merit to that part at all.

But I think it's significant in the Connell case, that Connell appendix also contains the Advice -- the Appeals Letter.

And then there is the Appeals Memorandum which is essentially the document in the chambers brief in the Bonner case.

Now, the -- prior to this Appeals Memorandum, however, these cases were submitted for advice.

So, there was, we've never seen that Advice Memorandum.

It was a very secret document and the parties had to argue in the dark as to what the position of the General Counsel was.

In fact, in the very Connell case, the Fifth Circuit at which is before you in that case.

The Fifth Circuit was critical of the General Counsel for not acting.

Now, he has it within his prerogative and unreviewable discretion whether to proceed or not.

But the fact remains that until this memorandum was published and this General Counsel in his grace had decided to make it available to the bar.

The bar had no way of knowing for 10 years or thereabouts why the General Counsel refused to give this question to the Board.

And in this instance, he of course gave it to the Board.

Now, in an advice situation, the Advice Memorandum is every good as final Your Honor as the Appeals Memorandum if the party chooses not to appeal because that it the law whether or not the party chooses to appeal, in the underlying Sears case.

For example, we presented all argument I did myself to the Office of the General Counsel, and it was because of that oral and the first time around it was no avail.

The Advice Memorandum was against us and we never did see exactly what was in that we have seen it recently because the case is now closed.

But we never did see the Advice Memorandum.

As a result when we filed the appeal, we were arguing in the dark.

Now, the General Counsel attempted to give us some more information as this process went forward in this case again as a matter of grace and I think the appendix reflects the letter of the Regional Director which is exhibit page 21 where the Regional Director after we made the demand for the Advice Memorandum the first time, indicating that we're proceeding with respect to the Freedom Information Act.

The first paragraph of that letter states, “This letter sets forth with greater particularity my reason for refusing to issue complaint in the above caption case, and is sent pursuant to the teletype of July 21, 1971 from acting General Counsel Goslee to you.”

I think that's very significant that letter for number of reasons.

First of all, it shows that the Director is an essence a minister -- acting in a ministerial capacity and Judge Corcoran below quite correctly made that finding based on the facts of these case and these facts are not unique.

The records include the operations of the General Counsel which is his statement to the House Committee in 1961 which continue to be so and includes the lengthy ABA reports.

I think also this underlying case, and again this page 21 of the appendix points out the fact that the General Counsel on three occasions changed his theory.

Now, he is permitted to do that.

We ultimately won because he issued a complaint in our favor.

But in no time did we really know what his theory was the first time, had it no time then we really know what his theory finally was when he was going to proceed.

So, it was very difficult to act and it certainly would be very difficult for the other side if they were in disagreement with the basis of his action.

And yet, if we had chosen not to file the appeal or party chooses not to appeal, that is final.

It's final not only as to that party.

But moreover, it's final because the law of the advice, that is the law of General Counsel if its not appeal.

And it's interesting to note that while parties are informed of an appeals decision, parties are not informed when the matter goes to advice.

Now, I think sophisticated practitioners before the Board know to ask the right questions and if they do ask they tell you.

But you might not ever know when you get a letter from a Regional Director that it was pursuant to an advice determination unless these advice determinations are made public.

Now, I also -- in terms of how the procedure works while we're on the procedure, I would call the Court's attention to appendix, the appendix attached to the respondent's brief in the case here and particularly 3 (a) the second paragraph in that appendix --

Chief Justice Warren E. Burger: What page again?

Mr. Gerald C. Smetana: At page 3 (a) of the respondent's appendix Your Honor.

Chief Justice Warren E. Burger: Yes.

Mr. Gerald C. Smetana: And this is from the admitted statement as to how the office works by the General Counsel to the House of Congress.

It says in the second paragraph, secondly, the Advice Branch does not ordinarily review the Regional Director's factual determination and conclusions.

It does not interfere with the investigatory duties of the Regional Director.

But rather it concerns itself with the interpretations and applications of legal principles.

And going on, Your Honors to page 4, the top of the following page, there are four consultative functions that take place and I talked about advice but it's been ceded that the judge found and this Operations Memorandum, it's been ceded that the appeals function essentially the same way except that's on appeal rather than on advice.

And there are four steps before this final decision is rendered by the General Counsel.

Step one on page 4 (a), the reviewing attorney researched his all cases in point and ascertains the applicability of prior advice determinations.

And I should add that while the General Counsel in the quarterly report in which is published at page 150 of the regular appendix, in one of the cases specifically cites to a prior quarterly report to a prior decision in a prior quarterly report.

I can't find it this moment, Your Honor but it is there.

The second thing that happens in this procedure is having reviewed the case, it is then submitted for further consideration to an advice agenda and then it goes on to explain all the people that are at the agenda.

And this is essentially a conference where the legal issues are better drawn.

Then it goes on to say depending upon the complexity of the case, cases may be submitted to the agenda orally or by written memorandum.

I should add at the time of this agenda takes place, the oral argument of counsel would have been presented not face to face but separately.

The legal positions of the region were presented and the submission of the parties to the case would have been presented.

Then the agenda decision, there's a decision rendered.

The decision is submitted to the General Counsel and then finally the second paragraph on 4 (a), the General Counsel's final determination is communicated to the Regional Office by a way of memorandum from advice and that's a memorandum we're talking about and the record reflects.

There is no instance nor instance in this record where Regional Directors ever not followed that advice.

That advice obviously is a euphemism in the circumstances.

Now, in terms of why these are final opinions and Justice Stewart -- Mr. Justice Stewart the same is true of appeals and the way it works.

We say, it essentially --

Justice Lewis F. Powell: Would you tell me again, how the record shows that an Advice Memo is always followed?

Mr. Gerald C. Smetana: How it shows it's always followed.

Justice Lewis F. Powell: I take it that's your position here.

Mr. Gerald C. Smetana: Yes, I think it is shown in a number of ways.

First of all, it was essentially conceded that this is a stipulated record and it was there -- it was the Government's burden and there is no instance in this record where they produce any evidence to show that it was not followed -- into the advice decision was not followed and moreover, the General Counsel has conceded in his brief on page 6.

And it was also conceded earlier in the open court that rarely, if ever, does a Regional Director disregard an advice decision.

And I think if you think of the nature of this whole process, the General Counsel indicates it requires, I don't want to spend all the time going through it, but the words are that it's required that certain things be submitted.

And there are instructions that return from Washington, it is for the purpose of the General Counsel administering his 41 regions so that a uniform --

Justice William O. Douglas: Is that page 6 Mr. Smetana?

Mr. Gerald C. Smetana: Of the petitioner's brief.

Justice William O. Douglas: The brown covered --

Mr. Gerald C. Smetana: Government brief.

It's gray, I'm sorry.

Justice William O. Douglas: Yes.

Thank you.

Mr. Gerald C. Smetana: Now, let me -- if I may come back to the Section 2 (a) and why it's a final opinion.

It's first of all I think it's been conceded as a separated agency and an agency under the APA not just under the Freedom Information Act.

And interestingly of course, that Mr. Friedman tries to suggest perhaps there might be some difference in the definition of adjudication of the Freedom of Information Act but of course it's all one Act.

The APA is a part of the Freedom of Information Act and the APA defines adjudication to mean agency process in the formulation of an order.

And an order to mean in whole or in part, any part of the final disposition of an agency, I'm turning to Your Honors' decision with respect to the ITT case at page 15 of the slip opinion.

Your Honors state, when Congress define order in terms of a final disposition, it required that final disposition to have some determinate consequence for the part to the proceeding.

That's no question at the consequences grave here.

The party to the proceeding either gets the remedy that he seeks or he does not.

Justice William H. Rehnquist: Well, but you're reading 2 (a) as if there was a final opinion within the meaning of 2 (a) in every single instance of adjudication under the Administrative Procedure Act.

I certainly don't read 2 (a) that way.

Mr. Gerald C. Smetana: Well, Your Honor, I must say first of all it is we -- our argument is that it is an agency and this agency has the responsibility for making best decisions with respect to the development of the law and this is how it speaks.

Only through this -- in this fashion, when this agency decides not to proceed, that is the law of the land there is nothing -- no individual in this country can bring a suit to change that life the General Counsel in his wisdom decides not to proceed.

And decisions not to proceed are every bit as much the law his decision to proceed and this memorandum simply explicate that.

Justice William H. Rehnquist: Does this -- does this sound to you as if it were addressed to this type of prosecutorial decision final opinions including concurring and dissenting opinions?

You don't get that get kind of a thing out of a prosecutor's office.

Mr. Gerald C. Smetana: Well, you do in the nature -- you do in the nature of this agency.

It may be Your Honor in the Justice Department it's different.

The nature of this agency having worked with the agency, there -- when the document comes into from the field, there's a majority opinion frequently a dissenting opinion.

There it is said there's a lot of due process and justice within the agency is just not publicized.

And there are dissenting opinions, now I'm not sure they are dissenting opinions in the adjudication of this but that of course, that's not critical.

But I would say Your Honor that we don't only rely on 2 (a).

We say that in the alternative, even if its not 2 (a) it's clearly, it's clearly 2 (b) and then -- and 2 (b) is either statements of policy specifically adopted by an agency.

And the General Counsel in his quarterly report at page 150 of the appendix specifically publishes that adopted policy and he states at the opening -- at the opening of that report in my judgment, this publication produces a better informed labor bar.

Now, presumably he thought publication would help not to interfere with law enforcement.

These are open cases.

If the concern of Your Honor were there and that he may have been wrong in his wisdom, but if you look at the very documents in issue here Your Honor, I think you will find that these documents do not interfere with law enforcement.

I think that is certainly one of the critical policy questions.

If you take for example a sample of an Appeals Memorandum a part from the one I had refer to as on page 81 of the appendix, very short memorandum.

It cites the name of the case.

It cites the disposition.

It doesn't give any special information as action, appeal denied, reasons for action.

In view of the attached amendment to the ITU negation plan, further proceedings would not effectuate the policies of the Act.

So that's the end of it.

Now, one of the issues in this case a collateral issue perhaps is where is that attached amendment?

Now, the -- Judge Corcoran I think quite properly said the word specifically referred to, we should see it because we were trying to decide how we could present our case and if this matters are final and -- or if they are agency opinions, we are entitled to the entire opinion and here this document is appended and specifically identified and we submit therefore it ought to be produced subject to the General Counsel showing why it might fall with one of the exceptions.

If it does, for some reason the document is not final, it's a negotiation that might be something else.

We turn the page on at page 83 and there we have an Advice Memorandum.

Unfortunately, this record doesn't -- indicate the headings.

But that is an Advice Memorandum and if you look through it, it says at the very -- in the very first page this was submitted for advice because it is a novel question of law concerning a union's withdrawal from multi-union, multi-employer bargain.

That was the very issue in the underlying Sears case.

We needed to know this rational.

This was based on these kinds of rational that we were able to proceed.

And just so Your Honors are clear with respect this appendix just as a matter of housekeeping starting at page 185 to the end, those -- sorry.

Justice William H. Rehnquist: MR. Smetana, this memorandum you're talking about on pages 83, 84, 85 of the appendix.

A good part of it just the General Counsel's interpretation of the Board's decisions.

I mean, presumably, a series has its own legal department they can interpret the Board's decision, can't they.

Mr. Gerald C. Smetana: No, Your Honor.

Certainly, we can but there are no Board decisions.

That's really the problem.

The last decision of the Board here was probably 10 years ago.

There's Retail Associates case.

Justice William H. Rehnquist: Well, take a look at the thing on page 83 through 85.

I see one, two, three, four citations to the Board opinions in that memorandum.

Mr. Gerald C. Smetana: Right.

But Your Honor, the point is this is how he interprets them and he will decide to proceed or not to proceed.

In this particular case, he decided not to proceed.

As a matter of fact, until our case came along, the General Counsel just refused to proceed on re-litigating the issue of what constitutes withdrawal from multi-employer bargaining on it.

And there was nothing you could do to get him to proceed in that fashion.

Chief Justice Warren E. Burger: I forgot what term you used that you said you need to know or you almost implied that it was impaired for you to know.

Well, of course all lawyers know it's fairly interesting to know what the other fellow is thinking on the other side but that doesn't mean you got --

Mr. Gerald C. Smetana: No, --

Chief Justice Warren E. Burger: This statute contemplates that you should know his thought processes any more than people can find out the thought processes or reasons why certiorari is denied in this Court sometimes.

Mr. Gerald C. Smetana: I think the test Your Honor is that there's no question this is the law of this agency, that's how he proceeds.

And I think the test has been said by the Hawk's Court, the Sixth Circuit as to whether or not it will promote or impede law enforcement.

And there's nothing in these documents that in our view, will impede the enforcement of the law.

In fact, the General Counsel himself believes they promote the enforcement of the law.

Now, let me turn very briefly if I may to the exemptions and why we're not covered.

I have already said that the exemptions are mutually exclusive because if in these final substantive opinions of an agency then for the agency simply if able to pass them between itself intra-agency would create the very body of secret law which is not desired.

And Mr. Justice Bazelon of the DC Circuit in the Sterling Case which is cited in our brief essentially drew the distinction between formulations of policy and substantive declarations as to whether the exemption deployed.

And we submit these are clearly substantive declarations of policy rather than the formulation of the policy.

The formulation is what I described in going through the Advice and Appeals Memoranda.

So far as b (7) is concerned, the Congress recently amended b (7) of the Act to specifically take out what's an issue here because they indicated and I'm reading from the new amendments of the Freedom Information Act b (7) investigatory records are exempt but only to the extent such records would interfere with law enforcement proceedings which is again the as the Hawk's test.

And more importantly, in the Conference Report on page 12 describing that language the Congress says, “nor is this exemption intended to include records falling within the scope of subsection 52 (a) (2) which is (a) (b) (c) which is the very thing that we're talking about here.”

Thank you, Your Honors.

Chief Justice Warren E. Burger: I think your time is used up Mr. Friedman.

Thank you gentlemen.

The case is submitted.