NLRB v. ROBBINS TIRE & RUBBER CO.

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Argument of Carl L. Taylor

Chief Justice Warren E. Burger: We will hear arguments next in National Labor Relations Board against Robbins Tire.

Mr. Taylor, I think you may proceed whenever you are ready.

You have the honor of arguing what we hope is the last case to be argued in the Courts this year.

It is more important to us than it is to you.

Mr. Carl L. Taylor: Thank you sir.

Mr. Chief Justice and may it please the Court.

The heart of this case is that the Freedom of Information Act was never intended to be a new and superior set of discovery rules to supersede and override the balance struck within existing discovery rules and to provide a vehicle for enjoining trials and hearing are pending for litigation.

The Fifth Circuit itself from whence this case comes has emphasized this principle with respect to criminal litigation in a case called United States v. Murdock which is cited in the Robbins case itself in footnote 19.

The Court notes that when it was previously faced, earlier last year with a FOIA demand in a criminal context, it held and I quote, ?We find that FOIA was not intended as a device to delay ongoing litigation or to enlarge the scope of discovery beyond that already provided by the federal rules of criminal procedure.?

The Fifth Circuit has attempted to distinguish Murdock on the ground that the special dangers inherent in upsetting the discovery balance in a criminal prosecution are so compelling that Congress could not have possibly intended such a result, but in the case at Bar by contrast, enlarging the scope of discovery in labor proceedings will have a salutary effect upon the board?s procedures.

Justice William H. Rehnquist: Mr. Taylor, I spent three years in the executive branch and resolutely adhere to juxtaposition that you are taking now and I thought was right then in doing it, I have a good deal of difficulty after the 1974 amendments where it seems to me that Congress just plowed ahead and said that that is what they meant?

Mr. Carl L. Taylor: Mr. Justice Rehnquist, the statute speaks of enforcement proceedings without distinguishing between particular types of enforcement proceedings and I suggest to the Court that what applies to an enforcement proceeding applies to all equally and I think the legislative history bears me out on that.

If we go back to the 1966 bill, the original act and look at the legislative history of what was intended initially by Wxemption 7 and then trace it through the 1974 amendment --

Justice William H. Rehnquist: You compared the House history of the bill of the 66 Act with the senate history?

It looks like you are talking about two entirely different bills?

Mr. Carl L. Taylor: The bill of course, came up in the senate first and what is key in the senate as far as we are concerned is the participation of Senator Humphrey who specifically protested during the debates in the senate that the Act might be used to obtain statements of witnesses prior to hearing in Labor Board proceedings is specifically addressed to Labor Board.

He expressed the fear and a quote ?that witnesses would be loathe to give statements if they knew that their statements were going to be made known to the parties before the hearing.?

In response to that, Senator Long proposed the language which became Exemption 7 which he said would meet that problem.

Now, in the House, the relevant consideration is the focus on the concept of no earlier or greater access.

That is essentially what Senator Long was trying to get to with the language he proposed and the House Report does pick that up which is what I am getting to.

The concept is solid in the 66 Act, that Congress did not intend to provide discovery through the FOIA by providing for earlier or greater access to materials in an ongoing enforcement proceeding than one could obtain by discovery with respect to whatever set of discovery rules apply to that enforcement proceeding.

In sum, I suggest as the Fifth Circuit held in Hardeman Garment decided last year, ?The legislative history of the original version of the Exemption 7 clearly indicates that Congress intended to include investigatory files of the NLRB within the exemption.?

The question before us I submit is whether the 1974 amendments to Exemption 7 were intended to repudiate the concept of noninterference with discovery in general or with the protection of board witness statements in particular.

Justice William H. Rehnquist: Certainly, there is nothing in the Act either in 66 or 74 which suggests the Labor Board is different from OSHA or different from the FTC or different from any other agency, is there?

Mr. Carl L. Taylor: There is nothing to distinguish between various types of enforcement proceedings.

That is exactly right and to that extent, we suggest that the there cannot be a difference between criminal enforcement proceedings and any other type of enforcement proceedings.

The Act speaks of enforcement proceedings generically and that it makes no sense for the Fifth Circuit to say we cannot believe that Congress would have intended to interfere with discovery rules and criminal proceedings, but we believe it when it comes to Labor Board proceedings which are also enforcement proceedings, especially in light of Senator Humphrey?s particular concern, particularly focused concern.

I am not suggesting that he was singling out the Labor Board for special treatment.

What I think the legislative history shows is that he was particularly concerned about the Board, and therefore, interested in getting the Act worded so that it would protect against discovery in all enforcement proceedings and that is indeed what happened.

Justice John Paul Stevens: Mr. Taylor, what do you do with Senator Hart?s comment at the bottom of page 30 of your brief, your footnote that it is only relevant to make that determination in the context of the particular enforcement proceeding.

Does that support the notion, there is a general prohibition against discovery?

Mr. Carl L. Taylor: Mr. Justice Stevens, if I am right that the concept of no earlier or greater access still finds its way into the 74 amendments.

Then a necessity, you must look to this particular enforcement proceeding to determine what discovery rules are applicable and what access is allowed.

Justice John Paul Stevens: You mean by particular you meant particular kinds of enforcement, like Labor Board --?

Mr. Carl L. Taylor: Yes sir, exactly.

Justice John Paul Stevens: So is that interpretation consistent with your notion that the same rules apply to criminal enforcement, Labor Board notion?

Mr. Carl L. Taylor: The notion sir is of no earlier or greater access than whatever the discovery rules in the particular type of proceeding prescribed.

Congress did not intend to say that all enforcement proceedings must have the set of discovery rules.

Justice John Paul Stevens: What do you think that Congress did intend to do by 1974 amendment?

Mr. Carl L. Taylor: Congress was focusing particularly on a set of cases which Congress felt constituted a judicial distortion of the original intent.

Congress was not writing on a clean slate in 1974.

It identified in particular four cases from the District of Columbia Circuit, none of which had anything to do with litigation that was then ongoing and indeed in some of them it was pretty far fetched that litigation could ever be ongoing and in one of them, the one dealing with the papers on the death of President Kennedy, the Court said there was no possibility there could be any further litigation.

Congress was particularly upset about those decisions, but Congress mentioned no decision with which it was upset that dealt with an ongoing enforcement proceeding.

Unknown Speaker: Its primary concern was to undo the decisions of the Court that had read the exemption broadly as including anything that had ever been prepared generically in connection with any enforcement proceeding, is that not right?

Mr. Carl L. Taylor: That is right sir and I think it is also significant to note that in the catalogue of judicial distortions that Congress identified, it did not include any of the substantial number of Appellate Court decisions, not only District Court, but Appellate Court decisions which had protected Board witness statements prior to hearing under the 1966 Act.

There have been quite a number of such decisions because the matter has been litigated heavily and there was not a single reference in the legislative history to any of those decisions as being a judicial distortion.

We suggest that that matches perfectly with Senator Hart?s comments when he specifically disclaimed any intention to radically depart from the intention of the 1966 Act and then referred to the original intent as not to allow any earlier or greater access.

The focus of the 74 amendment was exactly what has been suggested.

It was this refusal to provide access without regard to the enforcement proceeding or the relationship with the information to the enforcement proceeding or the enforcement proceeding interest in keeping that information from being disclosed.

Justice William H. Rehnquist: Even if we were to adopt that position, that is not a complete answer to Judge Godbolt's opinion in this case, is it, because he concluded that the disclosure would not really interfere with the enforcement proceeding?

Mr. Carl L. Taylor: I suggest Mr. Justice Rehnquist that it is a complete answer.

Congress has determined as a matter of law that there shall be no earlier or greater access, that Congress has determined that that is an inherent harm, that it is not going to impose through the FOIA and that it is not permissible, consistent with the statute and the congressional intent for the Court to come behind and say, well, we do not think that five days earlier are greater access.

Justice William H. Rehnquist: So it is not subject to case by case determination.

It is just a generic type of rule laid down by Congress?

Mr. Carl L. Taylor: Exactly, whatever the discovery rules in the particular proceeding provides, the FOIA matches that, but particular Courts cannot come along and say one Court thinks five days is sufficient and another Court thinks 10, another Court perhaps 13.

Justice William H. Rehnquist: What good does FOIA do in these cases, if it simply matches the discovery rules that already exist?

Mr. Carl L. Taylor: As this Court has said on a number of occasions, the basic purpose of FOIA is to protect the public interest in access to what agencies are doing and not to benefit private litigants.

Now, that rule allows the public in general the same access to information in ongoing litigation as the litigants have.

In other words, if the information is to be provided to the litigants under normal routine discovery rules then it must at the same time be provided to the public.

Justice Thurgood Marshall: It excludes you from the Act and tells you to go your regular discovery rules?

Mr. Carl L. Taylor: Yes sir, that is exactly what we suggest.

The Congress --

Justice Thurgood Marshall: Well, I think Congress could have said that very easily, just that way and it did not.

Mr. Carl L. Taylor: I suggest Mr. Justice Marshall that Congress did say that that the legislative history is clear in terms of the 1966 Act.

Justice Thurgood Marshall: I do not think Congress says in any place that this does not apply to NLRB investigation?

Mr. Carl L. Taylor: Congress said that it was not intending to provide earlier or greater access than would be applicable.

Justice Thurgood Marshall: But my question was that Congress could have said the FOIA does not apply to NLRB and they did not say that?

Mr. Carl L. Taylor: They said it does not apply to enforcement proceedings in general to the extent of providing earlier or greater access.

Chief Justice Warren E. Burger: Is there anything in the legislative history that suggests that it was intended to be a substitute for or an addition to the discovery rules provided?

Mr. Carl L. Taylor: No sir, indeed all the legislative history is to the contrary.

The very concept of no earlier or greater access is to the contrary.

Justice William H. Rehnquist: But now, take you language out of Exemption 7, investigatory records compiled for a law enforcement purposes and then you have I believe your 74 amendment, but only to the extent that the production of such records would interfere with enforcement proceeding.

Does that not suggest some sort of a case by case or some sort of a balancing approach?

Mr. Carl L. Taylor: We suggest that you have got to look at, again, the 74 Act was not written on a clean slate and you cannot look at those words by looking them up in the dictionary.

That you have got to look at the original Act and trace the history of this legislation, look at the evils that Congress was trying to cure and look at what Senator Hart said he was not proposing to do and one of the things he was not proposing to do was to interfere with the concept of no earlier or greater access so that sets the framework for what those words mean.

Now, the Fifth Circuit suggests and just to get back to the point that was raised, the Fifth Circuit suggests that there is no presumptive damage done to the balance struck by the Board between discovery and protection by an order that the statements be disclosed five days in advance because the statements will become public at the hearing in any event and because little intimidation is likely to occur in such a short period.

Now, we contend that the earlier or greater access concept is sufficient to answer that question, but it also ought to be pointed out that the harm from any premature release of the identity of expected testimony of witnesses in enforcement proceeding is precisely the danger that they can be persuaded to alter their testimony and that there is no answer to suggest as the Fifth Circuit did that the intimidator may be prosecuted after the fact before the testimony is altered, there is no amount of after the fact prosecution that is going to get that case back.

That testimony has altered that case may be lost.

Moreover, as the Sixth Circuit noted in Hardeman Garment, intimidation may be subtle and not susceptible or prudent.

We submit that these dangers rejected by the Fifth Circuit are indeed precisely the harms that Congress aimed at when it developed the concept of no earlier or greater public access under the FOIA.

Justice John Paul Stevens: Mr. Taylor, do you contend that if the Board should change its rules to allow no discovery of witnesses statements even after they have testified, the statute still would not allow disclosure?

Mr. Carl L. Taylor: Your Honor, the Board has accepted this Court?s decision in the Jencks case as applicable to the Board.

Justice John Paul Stevens: But as a matter of rule making --

Mr. Carl L. Taylor: As a matter of constitutional and due process law, not as a matter of FOIA law.

Justice John Paul Stevens: Well, supposing you changed say a different general counsel about the constitution is different because the Jencks case did not apply to the Labor Board?

Justice Potter Stewart: And it is not a constitutional decision.

Mr. Carl L. Taylor: The Second Circuit shortly after the Jencks case was issued, the Second Circuit did rule that the Jencks case apply to Board proceedings that they were sufficiently like criminal proceedings that are ought to apply and the Board did accept that concept.

In response to that Second Circuit decision did enact its own Jencks rule.

It is not employable.

Justice John Paul Stevens: So my hypothesis could not occur is what you are saying?

Mr. Carl L. Taylor: That is right sir.

Justice William H. Rehnquist: What if the Second Circuit changes its mind?

Supposing the Second Circuit had not said that the Jencks rules should apply in NLRB cases, would the Board be freed by rules so far as FOIA is concerned to say no Jencks Act disclosure either?

Mr. Carl L. Taylor: The Board would certainly be free to try.

The case law suggests that the Board would be told to go back, but in any event, that would be a constitutional due process question.

Justice William H. Rehnquist: It was not based on the Constitution.

Justice Potter Stewart: Jencks was not a constitutional decision.

Mr. Carl L. Taylor: It was based on the concept of inherent unfairness in not allowing the --

Justice Potter Stewart: Supervisory power with the Federal District Courts.

Mr. Carl L. Taylor: There is an inherent unfairness.

I stand corrected if I have spoken to loosely, whatever the, without discussing precisely what the particular framework of Jencks is.

Justice Byron R. White: Would the Board be free under the FOIA to go back on its Jencks Act ruling, that is the question?

Mr. Carl L. Taylor: Yes sir, the answer is yes.

That the FOIA simply says no earlier or greater access than your own discovery rules provide and the FOIA does not purport to tell you what your discovery rules are in a Board case or in a criminal case or in any other enforcement proceeding.

It may be measured by constitutional due process supervisory standards what elementary fairness requires, but not by FOIA.

Justice Potter Stewart: I think the question however was is that, is it your contention that whatever discovery the Board permissibly allows, that is permissible outside of the FOIA, FOIA does not require disclosure of --

Mr. Carl L. Taylor: That is correct sir.

Justice Potter Stewart: So the Board if it wanted to change its rules and assuming it permissibly could to provide even less discovery that it now does that would be it and FOIA would have to respect it, Exemption 7?

Mr. Carl L. Taylor: That is correct sir.

Just as if this Court itself changed the federal rules of criminal procedure, then the FOIA would have to respect that.

Justice Byron R. White: But you base that on the legislative history, that is not what the Act says, is it?

Mr. Carl L. Taylor: The legislative history in the House of the 1966, the House Report specifically uses those words, no earlier or greater access and Senator Hart picks them up and he describes that as having been the purpose of the 1966 Act in the language of Exemption 7 and he says we do not intend to change that.

Justice Byron R. White: So if the agency wants really to frustrate what the statute seems to say in its face, it is free to do so?

Mr. Carl L. Taylor: Well, we suggest sir that the statute does not say on its face any different than Congress clearly intended.

In any event, in this case, the Board certainly is not intending to frustrate the Act.

The Board is simply saying that the Act ought not to provide early or greater access so that it is not intended as a discovery tool and it is impossible in the context of ongoing litigation to frustrate the FOIA by changing your discovery rules.

If this Court should change the federal rules of criminal procedure to tighten up in some respect because it felt that the present rules are unworkable, that would not in any sense be frustrating the FOIA.

Justice John Paul Stevens: Mr. Taylor.

Mr. Carl L. Taylor: Yes sir.

Justice John Paul Stevens: I did not mean to interrupt you, you can finish your thought,but are you relying when you keep referring to Senator Hart on the passage you quote at pages 29 and 30 of your brief?

Is that what you say adopts the no greater or no earlier access concept because I surely do not read that passage that way.

Mr. Carl L. Taylor: If you start on page 27, Mr. Justice Stevens, he says my reading of the legislative history suggests that Congress intended that this seventh exemption was to prevent harm to the government?s case in Court by not allowing an opposing litigant earlier or greater access than he would otherwise have.

He then goes on to say what the evils are and then he says, that we suggest is not consistent with the intent of Congress when it passed this basic Act in 1966.

Then as now, we recognize the need for law enforcement agencies to be able to keep their records and files confidential.

Justice John Paul Stevens: Where a disclosure would interfere with any one of the number specific interests and then later on he says, where the production of a record would interfere with enforcement procedures, this would apply whenever the government?s case in Court, a concrete prospective law enforcement proceeding would be harmed by the release of information and in a footnote, he says it is only relevant to make such determination in the context of the particular enforcement proceeding and you say he is announcing a general rule that there is never to be access?

Mr. Carl L. Taylor: Your Honor, he is saying that it is the intention of Congress in 1974 to return to the original intention when the Act was passed in 1966 and when he says, then as now, we recognize the need, he is saying that the Congress is recognizing the same need now as it recognized in 1966, the whole thrust is that there was nothing wrong with the 1966 Act.

The problem was with the way the Courts had interpreted it.

So now Congress had to go back and figure out some language that the Courts could not ignore.

Unknown Speaker: Well, it says that the amendment is not a radical departure from existing case law so it is some departure from existing case, but he says the approach is in keeping with the intent of Congress and by this amendment, we wish to reinstall it as a basis for accessed information?

Mr. Carl L. Taylor: Exactly, sir and that is why I suggested that it was significant that Congress did not point to any case which denied earlier or greater access in an ongoing enforcement proceeding.

Congress focused on four cases specifically.

It focused on an identified evil and when you match that up with Senator Hart saying, we do not intend any radical departure from existing case law and none of the cases they referred to and they were well aware of the cases, that is what prompted this amendment, they had looked through the cases that they did not like.

Justice John Paul Stevens: Mr. Taylor, let me test you once more if I may.

At the bottom of page 28, again quoting Senator Hart, ?this amendment explicitly places the burden of justifying nondisclosure on the government which would have to show that disclosure would interfere with enforcement proceedings, deprive a person of a right to a fair trial, constitute an unwarranted invasion of personal property, reveal the identity of informants or disclose investigative techniques or procedures,? but under your view, all they have to show is that we have rules that do not allow disclosure.

You would not have to show any of those things, if I understand you correctly.

Mr. Carl L. Taylor: Mr. Justice Stevens, I think what he is referring to there is the other part of Exemption 7.

There are really two parts to Exemption 7.

There is a per se protection where it would result in earlier or greater access.

If you look at the language at the bottom of 29 and the top of page 30, Senator Hart explained that the amendment would continue to bar disclosure, first where the production of a record would interfere with enforcement procedures.

This would apply wherever the government?s case in Court are contrary to prospective law enforcement proceeding would be harmed by the premature release of evidence and information.

Now, I had suggested to the Court, that has to be matched up with the original congressional intent and you have to look at what they intended there.

Justice John Paul Stevens: That is they do not have to make that showing?

Mr. Carl L. Taylor: Yes sir, but then he goes on to say, ?this would also apply where the agency could show,? and this is where the specific showing comes in perhaps, ?that the disclosure of the information would substantially harm such proceedings by impeding any necessary investigation.?

That has got to mean something other than no earlier or greater access because he says it would also apply and we suggest that if there is a case by case determination to be made in the context of an ongoing enforcement proceeding that that is what he intended to apply to, but in any event we do not have that case here.

Justice Potter Stewart: You do have the case here though where your whole exemption claim is based upon the proposition that disclosure of the information would interfere with enforcement proceedings, do you not?

Mr. Carl L. Taylor: Yes sir, but Congress is already applying --

Justice Potter Stewart: And you say that your discovery rules were promulgated upon the proposition that they are necessary to prevent interference with enforcement proceedings.

That that is enough, just show what your rules are and what the basis and justification for the rules are?

Mr. Carl L. Taylor: Yes sir.

We also rely on the proposition that it hardly needs argument that intimidation is a danger from the premature release of information in an enforcement proceeding.

Justice Potter Stewart: These rules are based upon that general possibility of disruption of enforcement proceedings and that those are the rules so based and so justified and that the FOIA does not provide for an individualized determination whether in any particular enforcement proceeding, there would be a disruption?

Mr. Carl L. Taylor: Yes sir exactly.

I would like to turn just very briefly to Exemption 5.

In the alternative, we asked the Court to rule that investigatory witness statements are protected by Exemption 5 of the FOIA as work product except of course for the use of Jencks statements.

This Court has already held in Sears that Exemption 5 includes the work product privilege was well as the executive privilege.

While the executive privilege protects only deliberative material and that is of course what this Court ruled in the Mink case, the work product privilege protects trial preparation material which these statements clearly are under Hickman v. Taylor.

In Sears, the Court referred to the work product rule of Hickman as applicable to government attorneys in litigation, and therefore, within the scope of Exemption 5, we suggest that since the statements in question are protected by Hickman that it follows that they are protected by Exemption 5.

Now, I might just finally point out that this Court itself, really going to both points for a minute, this Court itself has emphasized that the purpose of the FOIA is not to serve the needs of a particular litigant and they are, therefore, necessarily not to provide discovery, but to satisfy the public interest and the public interest of what the Board?s investigation shows in this proceeding is going to come out in the trial.

The record will be fully disclosed.

As this Court said in Sears, when it denied access to the general counsel?s go memorandum making a decision to prosecute, this Court said, the public interest is not strong in seeing these because they will come out in the trial in any event.

Justice William H. Rehnquist: But can an agency respond to an FOIA claimant?s request that the public interest in your request will be served when two years from now, we announce our conclusions on this subject and so wait till then?

Mr. Carl L. Taylor: Mr. Justice Rehnquist, I respectfully suggest that that is not the situation we have here that five days from the date that this order was issued, this case would have gone to trial, but for the order and that the public interest in whatever the general counsel had investigated would come forward at that time.

Justice William H. Rehnquist: What if the request had been six months before the case has gone where it gone?

Mr. Carl L. Taylor: Then it would have been six months, unless the discovery rules provided for access earlier.

Justice William H. Rehnquist: So it really does not make any difference whether it is two years or six months or five days?

Mr. Carl L. Taylor: No sir, it does not, but I would also point out that discovery in many criminal proceedings last for quite awhile and that may be six months or two years as well.

I would like to make one final point and that is a practical point.

The First Circuit in Good Friend v. Western said and I quote, ?We do not believe that Congress intended to transfer from the Board to the Courts the case-by-case adjudication of discovery disputes in unfair labor practice proceedings.?

Such case-by-case adjudication is precisely what the First Circuit would require whether the requirement of the Board shows specific harm in every case.

The recent experience of Federal Courts with subtle discovery suggest that those delays will be crippling and they will occur in every case.

They will be FOIA case within every Board case and we suggest in light of this Court?s admonition in Air Force v. Rose that the FOIA is intended to be a practical workable statute and that the exemptions are intended to be practical and workable.

That the First Circuit is right that, that is inherently impractical and unworkable and will impose crippling delays upon all enforcement procedures.

Chief Justice Warren E. Burger: Thank you Mr. Taylor.

Mr. Earnest.

Argument of William M. Earnest

Mr. William M. Earnest: Mr. Chief Justice and may it please the Court.

The primary issue here before the Court is whether a government agency is going to be allowed to deny a valid request under the Freedom of Information Act as amended by giving a categorical per se response of denial without any meeting whatsoever of its statutory burden of proof.

Under Section 55284 (b) of the Amended Act, the burden proof is squarely on the government in this case in a de novo proceeding.

The 74 amendments also provided for in camera inspection.

There were some substantial revisions in the 74 amendments.

Now, at the District Court hearing in this case the Board presented no evidence whatsoever to support its claimed exemptions.

This was even after the Court reminded the Board that it had the burden of proof and I think in the appendix on page 71, the Board admits there that it presents no evidence in this case it all.

On page 91 of the appendix, the Court after having reminded the Board that it had the burden of proof in this case inquired us to the nature of these statements whether the statements were unique in any way, whether there was anything unusual in these particular statements that would cause an interference or whether it was that Board's position, a per se position here that the giving of virtually any statement regardless of who gave that statement or what might be included in that statement would be interference and the Board accepted the later position of per se approach.

This is of course an approach that in toto would exclude the documents.

It runs contrary to the segregable portion added in the 74 amendments.

The Board here is claiming a blanket immunity from any turning over of this information.

This was despite Senator Kennedy's remark during the consideration about the senate that there were no blanket exceptions.

There is nothing in the statute specifically exempting investigatory statements.

Now, I think in one of the amicus briefs, Freedom of Information Clearinghouse, page 13 of that brief Exemption 3 as I understand it exempts from disclosure a document that would have a statutory exemption.

There is no statutory exemption in this case, although Congress is well aware that the Board and other government agencies all have investigatory statements.

Quite to the contrary Congress in the 74 amendments did away with a stonewall categorical approach that had been taken.

These four cases that were the DC circuit cases were illustrative of that particular approach, a blanket rubber stamp type approach and that was what they sought to turn around.

It was a mechanical and wooden as that phrase has been bannered about, test and Congress was focusing here in the 74 amendments with regard to Exemption 7 in particular on the effect of the disclosure with regard to the enforcement proceeding.

Would there be interference?

Justice William H. Rehnquist: As I understand Mr. Earnest this proceeding has simply been stayed pending the outcome of this ruling under FOIA?

Mr. William M. Earnest: It has not been stayed by any Court.

Justice William H. Rehnquist: But I mean the NLRB has declined to proceed with it.

Mr. William M. Earnest: At their own volition, yes.

Justice William H. Rehnquist: Right, so there is no question of mootness here?

Mr. William M. Earnest: Yes, in fact the District Judge Hancock in the District Court specifically gave that option to the Board's counsel.

He said ?I can order you to turn them over right now or I can order you to turn them over in x number of days before the hearing and he says I do think you want.

He says I have the authority to do either then I will basically give you choice, but there was no stay as such and in fact we would be through with this thing had the Board complied with FOIA.

Justice Byron R. White: FOIA has not anything to do with whether there is a hearing or not, does it?

Mr. William M. Earnest: FOIA has to do, that is correct.

Justice Byron R. White: So even if it was dismissed it would still be a live FOIA case?

Mr. William M. Earnest: That is correct.

Justice Byron R. White: Even if the Board case was dismissed?

Mr. William M. Earnest: Yes, there was an interesting comment and I think it may have been regarded to the Exemption 5 that the Board's duty of disclosure or the public interest would have been met as the facts were brought out in the hearing.

Well, that is not quite the case because the document sought in this case will never be brought out to the public in the hearing.

They are produced to the person in litigation with the agency only upon request and they are retrieved by the Board after that there is no opportunity to make a copy.

Justice Thurgood Marshall: Could you not go after them again under FOIA?

Mr. William M. Earnest: I think you can go after them any time with FOIA.

Justice Thurgood Marshall: But would you not be successful then?

What exemption could they plead then?

Mr. William M. Earnest: I suspect we would see the same exemptions we have got now because the Board has I think taken --

Justice Thurgood Marshall: That is before?

Mr. William M. Earnest: Well, they have taken --

Justice Thurgood Marshall: Unless they could say it is after.

Mr. William M. Earnest: I think they have taken, Mr. Justice Marshall, they have taken the position that even a closed file could interfere with future enforcement proceedings or could --

Justice Thurgood Marshall: But they have had issued that especially for this particular case.

They could not just take blanket one you call wooden, they could not take the wooden approach then, could they?

Mr. William M. Earnest: I think they would.

Justice Thurgood Marshall: Would they be successful.

Mr. William M. Earnest: I do not think they will be successful in this.

Unknown Speaker: Mr. Earnest, you did not make your request under the Freedom of Information Act for the purpose of public dissemination?

Mr. William M. Earnest: No, I did not.

Unknown Speaker: If you win, the public would not necessarily benefit except derivatively if this is the public purpose of the Act.

You made your request for you so as to litigate this Labor Board proceeding, did you not?

Mr. William M. Earnest: I had a personal use of that and we are a member of the public.

Unknown Speaker: Yes.

Mr. William M. Earnest: But another member of the public may have a different purpose and I do not know that --

Unknown Speaker: But your purpose was to get this information for your use as a lawyer or representing the employer in that Labor Board proceeding.

Mr. William M. Earnest: That is correct sir.

Unknown Speaker: And under the Board's rules after witness has testified as I understand it, you are entitled to any statements he has made.

Mr. William M. Earnest: Upon proper request, yes.

Unknown Speaker: Upon proper request and you are entitled to him as a lawyer in that proceeding?

Mr. William M. Earnest: But not to keep.

Unknown Speaker: And not to disseminate to the public either?

Mr. William M. Earnest: That is correct.

What Congress had in mind, I think this has been clear from the decisions, was it there would be maximum possible disclosure together with a very narrow construction of the exemptions and of course the Board?s position is that nothing has been changed by the 74 amendments.

The statute I think is clear that there must be proof of such effect.

If in fact there is such effect then there is such proof and each agency, there was some discussion here earlier about how the Act would apply to different agencies.

Well, I think that I can apply to different agencies and there can be consideration of withholding of documents by those various agencies to the extent that there is any interference with that particular agency's particular needs.

The NLRB has particular concerns and one of which that is voiced is the employer-employee relationship, but SEC also has particular concerns.

Every other agency, OSHA and to the extent that those concerns are valid concerns they are capable of proof.

Justice William H. Rehnquist: Every one of them as your opponent suggests it is going to end up in the Federal District Court before you have the agency proceeding under a FOIA proceeding?

Mr. William M. Earnest: I very much disagree with that Mr. Justice Rehnquist.

He has said, I do not think he went quite as far to say as that it would end up in District Court, but he said every Board case would be a FOIA case.

Quite frankly, the FOIA case should not even get to the District Court.

The agency ought to do the request.

It first goes to the agency and as appeal within the agency so the District Court should never even have to fool with it.

Justice William H. Rehnquist: If the agency complies with the request?

Mr. William M. Earnest: If the agency complies.

Justice William H. Rehnquist: But I gather from your opponents position that the NLRB is not about to comply without being told to comply by the Court?

Mr. William M. Earnest: A case in point might be the advice and appeals memorandum that was considered by this Court in Sears.

Unknown Speaker: On one side knuckles under there was never a judicial controversy, is it?

Mr. William M. Earnest: That is correct, but if doing what you are supposed to do is going under, I do not consider that to be the case.

Unknown Speaker: You can see that in a given particular case there could be justification for the agency to assert claim under Exemption number 7?

Mr. William M. Earnest: Yes, I do.

Unknown Speaker: And so that certainly would leave room for judicial controversy in any particular case, would it not?

Mr. William M. Earnest: It would.

There is no assurance and I think Congress realized this at the time when it enacted the law, but I think it is Congress? intent to have the District Court consider that when there was a true controversy.

Unknown Speaker: The NLRB says there should be a per se exemption under Exemption number 7 of the statements.

You are not on the other side arguing that there should be per se disclosure, are you?

Mr. William M. Earnest: No I am not.

Justice Thurgood Marshall: Is there anything in your legislative history that shows that Congress intended that it should be used in lieu of discovery?

Mr. William M. Earnest: No.

Justice Thurgood Marshall: And that is what you want to do?

Mr. William M. Earnest: It smells of discovery, okay, but I think the two actions are separate and I think that the rules are equally applicable to all agencies.

Justice Thurgood Marshall: Well, if the two actions are separate, you can get these after the hearing and that you do not want them afterwards.

Mr. William M. Earnest: I could get them after.

Justice Thurgood Marshall: But you do not want them afterwards, do you?

Mr. William M. Earnest: Probably not.

Justice Thurgood Marshall: Well, the record shows you did not?

Mr. William M. Earnest: Well, my preference would be to have them before but --

Justice Thurgood Marshall: Then why before instead of after?

Mr. William M. Earnest: To resolve credibility issues in this case which is --

Justice Thurgood Marshall: FOIA discovery?

Mr. William M. Earnest: In that respect, yes.

Justice Thurgood Marshall: But what other respect is there, curiosity?

Mr. William M. Earnest: No, it is not a case of curiosity.

Justice Thurgood Marshall: Do you think that is what Congress was interested in for your curiosity?

Mr. William M. Earnest: No, I think Congress was intending in having agencies operate with openness and that to the extent that their processes would be interfered with that they were entitled to withhold that information.

I think that if there is such interference then the best person in the world to show that is the agency and I think there must be proof of that.

I think the statutory language is clear.

With regard to your question about that would I want these statements after the hearing, I cannot recall specific Senators or Congressmen involved, but there is very adequate legislative history backing for that information is really only worthwhile if it is received timely and for my particular purpose it maybe only valuable to me if it is timely.

Chief Justice Warren E. Burger: So that is when it is fulfilling the function of discovery before trial, discovery before hearing, but you concede that this is, you treat this as part of the discovery function and regulatory litigation?

Mr. William M. Earnest: I would wind up with the same document whether you get it under a discovery or whether you go under FOIA, but all I am saying is that it makes no difference whether there is a discovery proceeding there or not.

I am squarely contrary to the Board or any government agency that takes the position that its discovery procedures govern them of what is disclosable under FOIA because if that be the case then all an agency need do to get around FOIA is just adopt a policy of non-disclosure and you have in FOIA is of no effect.

Justice William H. Rehnquist: But some is clearly not disclosable under the federal rules of criminal procedure.

Do you think that a criminal defendant could go into the District Court where the criminal case is pending or another District Court and ask for it under FOIA?

Mr. William M. Earnest: I think under FOIA, again it would get back to a showing of interference.

Justice William H. Rehnquist: You think in every single criminal case that a separate case could be brought deciding whether or not discovery over and above that provided in the federal rules of criminal procedure would interfere with the prosecution's case?

Mr. William M. Earnest: I am not sure I understand your question Justice Rehnquist?

Justice William H. Rehnquist: Well, do you think that in every single criminal prosecution the defense lawyer could start separate litigation under FOIA saying ?I know I am not entitled to this information by way of discovery under the federal rules of criminal procedure, but I think I am entitled to it under FOIA and then a separate case would then go onperhaps within the Criminal Department of the Justice Division, perhaps in a District Court as to whether or not the prosecution's case would be prejudiced by disclosure of that information?

Mr. William M. Earnest: I am not really a criminal lawyer so I am not really speaking from a good basis on that, but I do feel that FOIA is a separate statute apart from other statutes and there exists the availability of information under FOIA.

I think there are built in limitations within FOIA without having to rely on the other statutes and that as matter of proof any interference or something per se that is exempted and I believe in the Exemption 7 there is under I guess is its confidentiality that there is a special provision in there concerning FBI.

Justice William H. Rehnquist: But the burden of proof is on the agency to make use of each exemption?

Mr. William M. Earnest: That is correct.

Justice John Paul Stevens: Following up on Justice Rehnquist's thought it occurred to me that the statute does not use the word prejudice.

It uses the word interfere there and why is not any modification of the rules that would otherwise obtain in the enforcement proceeding an interference within the meaning of the statute, is it not?

If it is a change in the proceeding which it would be if you are getting discovery you could not get under normal rules, why is not that per se an interference?

Mr. William M. Earnest: Are you not getting into this comparative discovery test that the First Circuit spoke off and I do not think that the FOIA Act intended to amend an agency?s discovery rules.

Justice John Paul Stevens: You answered Mr. Justice Marshall by suggesting that the legislature simply did not consider or talk about discovery and yet you are seeking they use the statute for discovery and does not the word interfere and let us say any change in the procedure there is within the exemption?

Mr. William M. Earnest: I do not see interference as that, no.

Justice John Paul Stevens: You are reading interference as though I meant prejudice I think.

Mr. William M. Earnest: I read interference as keeping the government agency from performing its statutory function.

Justice John Paul Stevens: Well, the statutory function as implemented by its own rules governing the enforcement proceeding would normally be no discovery other than that contemplated by those rules?

Mr. William M. Earnest: I may not agree and do not agree that the Board?s discovery rules are necessary for the carrying out of its statutory function.

In fact, I believe that loser rule from the Board point of view would aid them in carrying out that function.

Justice John Paul Stevens: Well, in any event you are saying that FOIA intended to authorize a change in the nature of the board proceeding and then you were saying that change is not an interference unless it would harm the enforcement effort.

Mr. William M. Earnest: That is correct.

Justice John Paul Stevens: That is not really a necessary reading of interference, it maybe a correct one, but it is not necessary reading of that word.

It would be if it said prejudice, but the word interfere I guess suggests is a different word or it does not say harm or prejudice?

Mr. William M. Earnest: The legislative history talks in terms of interference, but also with the word harm. I do not recall the word prejudice being bannered about.

Unknown Speaker: Your basic plea is it the FOIA impose certain duties upon the agencies without regard or respect to there preexisting rules?

Mr. William M. Earnest: That is precisely correct.

Unknown Speaker: Maybe it would change them or maybe it would not, but it impose statutory duties on the agencies and that their preexisting rules of discovery are basically irrelevant to those duties?

Mr. William M. Earnest: That is correct.

Justice William H. Rehnquist: Including the United States as a civil litigant or the United States as a criminal prosecutor?

Mr. William M. Earnest: I think FOIA is independent.

Justice William H. Rehnquist: So is your answer yes or no to my question?

Mr. William M. Earnest: Yes, including them as either.

Chief Justice Warren E. Burger: So by going into the District Courts, after an agency declined to respond as requested, you acknowledge that they could hold up unfolding of the case for a year, 18 months, two years or even more going through the District Courts, Court of Appeals in petitioning for cert up here, it is a possibility, is it not?

Mr. William M. Earnest: It is a possibility, yes sir, but it is also a possibility too that I would do my client a great service by bringing out facts of credibility and this is the --

Chief Justice Warren E. Burger: Which you suggest you cannot bring out by the ordinary discovery proceedings?

Mr. William M. Earnest: Well, ordinary discovery proceedings under the Board, no.

Unknown Speaker: Well, you object to statements after the witness testified?

Mr. William M. Earnest: If I requested them yes, but I would have approximately five to 10 minutes and I work for the Board so I am aware of this that I would have approximately five to 10 minutes to review those statements and in those statements, could be listed the names of, and we have credibility in this situation of corroborating witnesses, some of whom may or may not be employees, I would have no opportunity to go check that out.

Chief Justice Warren E. Burger: No one has mentioned and perhaps because it is not relevant, the potential for retaliation against an employee by an employer?

Mr. William M. Earnest: May I address myself that Mr. Chief Justice?

Chief Justice Warren E. Burger: Is that a possibility?

Mr. William M. Earnest: I think it is a possibility, yes, sir.

As I am sure the Court is well aware from its earlier decision that 884 protects such a witness.

In fact, it gives him greater protection that he would have if this disclosure had not been made, the company would be put on notice of knowledge of who such people were and what was contained in those statements and if something were done as within this case which was a five-day period, something were done to that witness, some sort of intimidation, that certainly would be brought out at a trial.

Chief Justice Warren E. Burger: They would not be likely to do their intimidating in the five-day period, they might wait a year, then what do you do about it?

Mr. William M. Earnest: I do not think you ever have any assurance that someone will not obey the law, but in this case, there is no evidence that there has been any disobeying of the law of this client that the disclosure at the hearing or part of the hearing would have no effect if the employer or union involved were going to discriminate against an employee or intimidate for that whether it is after the hearing or before the time, makes no difference there.

Justice Lewis F. Powell: Mr. Earnest, under the Board's rule, you have the right to obtain a list of witnesses before trial?

Mr. William M. Earnest: No sir.

Justice Lewis F. Powell: Is that customary in agency procedure?

Under the rules of civil procedure, you may obtain a list of witnesses that you obtain that list, you could go interview the witnesses yourself?

Mr. William M. Earnest: I do not have that right under Board proceedings.

In fact --

Justice Lewis F. Powell: What discovery rights do you have under the Board proceedings?

Did you think of that position of any one in advance other than --

Mr. William M. Earnest: I think that any type of discovery would have to go through the general counsel of the Board with the general counsel?s approval and that effectively is none.

Justice Lewis F. Powell: Is there any difference for the purposes of this case between witnesses who are employees or the employee of the company who may be the object of the proceedings and witnesses who may be employees of a union?

Mr. William M. Earnest: Excuse me, who is the second?

Justice Lewis F. Powell: The Union, usually there are three parties in a proceeding.

The government agency which may have its own witnesses, the employer and the union.

Now, is there any difference in the applicable principles with respect to FOIA or discovery rules as to which you can ascertain in event of trial?

You are not going to intimidate union employees, are you?

Mr. William M. Earnest: Well, I think if the concern has been brought forth as to whether there would be intimidation, that intimidation could be brought about by a union as well as by an employer.

Chief Justice Warren E. Burger: It is not just intimidation.

If there was intimidation which is a possibility in a way of prior restraints and retaliation after the event, maybe six months, one year, a long time afterward, both of those things are possible, are they not?

Mr. William M. Earnest: Yes, sir.

Unknown Speaker: Mr. Earnest, you would like to get not just the statements of witnesses, but the statements of anybody that bear on the case I think?

Mr. William M. Earnest: No, my request was limited to just the statements of witnesses.

Unknown Speaker: I know, but if you could get these, you ought to be able to get the statements that the Board has taken of people they do not intend to call as witnesses.

Mr. William M. Earnest: That is a question that was not addressed.

Unknown Speaker: Well, I know, but I cannot imagine any difference in principle.

Mr. William M. Earnest: Well, one of the defense I think to the Board of that is that there was a breech of confidentiality or a breech of privacy --

Unknown Speaker: You mean if a witness gives a Board a statement under the Board?s agreement to keep it confidential, you could not get it?

Mr. William M. Earnest: I do not agree that a Board bootstrap promise of confidentiality is sufficient to insulate that disclosure.

Unknown Speaker: But your request was for the previous statements of people who were going to testify at the hearing and only those people?

Mr. William M. Earnest: Only those people and only that they be disclosed after the investigation was complete.

I had not desire to interfere with the investigation.

We cooperated with the Board 100%.

We produced our witnesses, let them take statements of our witnesses.

We opened our files, our documents and let them copy.

They have seen our cards and one of the things that has been discussed either in briefs or in the general cases that have been decided is whether or not it would be frustration of the proceedings as far as construction of the defenses, we have shown our hand already on that.

Justice Lewis F. Powell: Did you do that voluntarily or --

Mr. William M. Earnest: Yes, we did.

Justice Lewis F. Powell: Why did you not turn it down?

Mr. William M. Earnest: Mr. Justice Powell, as I said a minute ago, I have worked for the Board and I believe that the Board law is a good law and my personal belief is that the Board law, the National Labor Relations Act is best implemented when you have cooperation.

I do not believe that holding cards close to your chest and going to a hearing for the sake of going to a hearing really effectuates the law.

I think that it is --

Justice Lewis F. Powell: Do you believe that it is in the public interest if it is a one way street?

That is the issue here is it not, no matter what you say?

Mr. William M. Earnest: It might be an affected issue.

Justice Lewis F. Powell: Of course the issue is what the statute requires, but ?

Mr. William M. Earnest: That is correct.

Unknown Speaker: That is might not serve your client of being open and showing your cards.

I take it you feel that?

Mr. William M. Earnest: Yes, generally it does and I think it would be very probably I would say within the maybe five or six years, it maybe be only two cases, have I not presented evidence.

Now, that is not a procedure that is necessarily followed by all labor attorneys representing management.

Justice William H. Rehnquist: The Board is authorized to enforce subpoenas if you are unwilling, is it not?

Mr. William M. Earnest: That is correct.

The Board has the investigatory authority and they can subpoena my witnesses, my records, but I think the thing is best resolved in administrative give and take process and not where you are having any type of formal proceeding.

Justice William H. Rehnquist: But the Board disagrees with you, I take it?

Mr. William M. Earnest: Well, I do not know that they disagree with me on that.

I think that is their preferred method and I think it is the best method.

I think openness is the best method.

Justice William H. Rehnquist: But they have not been open here?

Mr. William M. Earnest: No, they have not been.

Justice William H. Rehnquist: That is what I meant when I said it thought they disagreed with you in this case.

Mr. William M. Earnest: One thing I would particularly like to note is the Fourth Circuit?s decision in the Charlotte-Mecklenburg Hospital case.

The Fourth Circuit was the Circuit that decided the Wellman Industries case which is one of those that was pre-amendment.

The Fourth Circuit having looked at the 74 amendments I think has changed its mind about its earlier decision and that is of the opinion that they would proceed forward on case by case basis.

With regard to the Exemption 5 raised by the Board, I do not think that one of these statements are memoranda or letters.

I think such a document is the type of document that would be a statement of an agency, employees, his own statement as opposed to someone outside the agency.

Chief Justice Warren E. Burger: Your time has expired.

Thank you, gentlemen.

Your case is submitted.