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2. Records of interim progress or incomplete development of Departmentsupported or Department-conducted studies or research projects, including notes, notebooks, and recordings compiled in the course of unfinished research.
3. Records containing information which is privileged through custom and usage in the same line of endeavor, or which is appropriately given to an agency in confidence and has been obtained from members of the public through questionnaires, surveys, and other inquiries.
4. Records of deliberations, discussions, comments, evaluations, and notes of members of advisory committees, study or review panels, task forces, or work groups.
5. Grant or loan applications which contain information exempt (e.g., under $ 5.74 or $ 5.76) from mandatory disclosure.
NOTE: Any of the records or materials in the examples noted in paragraphs 1-5 above may, however, be available for disclosure if the person requesting the record obtains the consent of the person who submitted the material or whose right of personal privacy is involved in its disclosure.
6. Manuals, guidelines, instructions, and other materials which are for guidance of employees in evaluating applications, in establishing or carrying out audit or inspection procedures, allowable tolerances, or quantums of proof, or in selection or handling of cases in litigation, and materials of similar kinds which cannot be disclosed to the public without defeating their purpose.
7. Patients' hospital, clinical, and medical records including related correspondence; medical histories, and supporting material; financial and property records and reports pertaining to patients in hospitals or clinics.
8. Records of pharmaceutical and related information concerning investiga. tional drugs, revealed to the Department by private sources.
9. Procurement and disposal plans which if prematurely released would give aid to speculators.
10. Records of correspondence between Federal and State or local officials, privileged through custom and usage or where disclosure might prejudice negotiations in progress.
11. Respecting Food and Drug Administration regulatory activities: Trade secrets or commercial or confidential information voluntarily revealed in requests for opinions and opinions and related records indicating that a person, firm, or product is or is not in compliance with the law; records relating to factory inspections, sample collections, seafood inspection, and other examinations and investi. gations by the Food and Drug Administration ; Investigational New Drug files; New Drug Applications and master files, other than final printed labeling; reports and records relating to individual adverse drug reaction (s); data in support of petitions relating to pesticide chemicals, food standards, food additives, and color additives, and master files relating thereto; files relating to certification of insulin, antibiotics, and color additives, and master files relating thereto; notices of hearing issued to individuals and firms under 21 U.S.C. 335 and records relating thereto; records relating to research in support of actions to further the law enforcement or regulatory activities of the Food and Drug Administration.
NOTE: Certain documents in some of the above files may be available upon request identifying the particular documents.
12. Budget and legislative proposals and all materials related thereto, other than those presented to Congress.
13. Opinions of the Office of General Counsel.
14. Records revealing names of persons considered but not appointed to public advisory committees, unsuccessful job applicants; records reflecting the identity of experts, consultants, or other persons from whom opinions, judgments, evaluations, or other data were obtained.
15. Records to the extent they reveal names of complainants, drugs abusers, or informers; audit, civil rights, disciplinary, grievance, security, and other investigation files, including reports of interviews, signed or sworn statements or other reports and related material.
16. Official personnel folders and related files including grievance and disciplinary files; confidential statements of employment and financial interests; performance evaluations and test scores; internal mailing keys.
17. Earnings records and claim files maintained by Social Security Administration.
[F.R. Doc. 67–7426; Filed, June 29, 1967; 8:46 a.m.] (Reprinted by the U.S. Department of Health, Education, and Welfare from
Federal Register, vol. 32, No. 126, Friday, June 30, 1967, pp. 9315-9319.)
VI. NATIONAL LABOR RELATIONS BOARD
NATIONAL LABOR RELATIONS BOARD,
Washington, D.C., February 23, 1968. BENNY L. Kass, Esq., Assistant Counsel, Senate Committee on the Judiciary, Subcommittee on Admin
istrative Practice and Procedure, Washington, D.C. DEAR MR. Kass: In his letter of January 26, Senator Long requested that certain information concerning this Agency's experience under the Freedom of Information Act be submitted to you. This reply to that letter also reflects the action of Arnold Ordman, the General Counsel of the National Labor Relations Board, who has separate responsibilities under the National Labor Relations Act. The answers are in the sequence of the inquiries in the letter.
1. The information, records, and other documents which the Board and the General Counsel make available, and applicable procedures, are described in Section 102.117 of the Board's Rules and Regulations. Two copies of the section are enclosed. (Enclosure 1).
A new description of Agency organization was published. (32 F.R. 9588, July 1, 1967) Moreover, the N.L.R.B. Field Manual, containing procedural and operational instructions for the guidance of Agency staff, was published and may be obtained by the public as a subscription service from the Superintendent of Doeuments. There are currently over 3000 subscriptions to this service. Newly issued instructions of the same nature are made available and compiled as periodic revisions to the Field Manual.
2. Since enactment of the Freedom of Information Act, the Agency has continued to deny requests for production of investigatory files and of employee pre-trial statements sought in advance of the employee's testimony as a witness at a Board hearings. This action has been predicated upon the exemption for investigatory files provided by Section (e) (7), and the exemption for confidential materials provided by Section (e) (4). The confidential nature of this inforınation is well established by court decisions, such as Texas Industries v. N.L.R.B., 336 F.2d 128 (C.A. 5). In two cases where court action was initiated in an effort to obtain the files or employee statements, the courts have sustained the Board's position that the materials are exempt under the Information Act. Copies of those decisions are enclosed. (Enclosures 2 and 3). A third court suit seeking an employee statement, currently pending before the United States District Court for the District of New Jersey, is being defended upon similar grounds. The name of that case is Local Union 560, Teamsters v. N.L.R.B.
In some instances, a request has been made for a copy of an appeal taken to the General Counsel by a charging party from the Regional Director's administrative dismissal of a charge and refusal to issue a complaint. When the appeal, which is taken during the investigatory stage of the proceeding, sets forth the names or identification of potential witnesses and the matters as to which they would testify, or otherwise reveals matters of a confidential nature relevant to the investigation, the request for a copy has been denied in reliance upon the exemptions of Section (e) (4) and (7). However, the request for a copy has been granted if the appeal has not disclosed the identification of potential witnesses or confidential matter.
In addition to the N.L.R.B. Field Manual, mentioned above, the Agency has materials entitled N.L.R.B. Internal Instructions and Guidelines which it has not made available to the public. The reasons for the Agency's action are that these materials do not affect the public, or are not “administrative" in nature within the meaning of Section (3) (b) (c), or fall within one or more of the exemptions of the Act.
The only other instance in which a request for information was denied involved the request of a business consultant "to examine daily docket files" in the Board's Los Angeles regional offices. The consultant frankly conceded that he wanted the daily information in order promptly to solicit business from the employers involved. The General Counsel denied the request because at that time neither region prepared or maintained a docket sheet listing the daily case filings in the region and the request, therefore, was for a record not in existence. Thereafter, and during the pendency of a court action the consultant instituted, the General Counsel established a procedure for all regional offices throughout the country whereby each office maintains a daily case filing docket available for inspection and copying by members of the public. The court action was dismissed upon the unopposed motion of the defendant Regional Directors.
3. As indicated in 1. above, this Agency's implementation of the Freedom of Information Act is accomplished through Section 102.117 of its Rules and Regulations. There have been no Board decisions citing the Act.
If I can be of any further help, please do not hesitate to call upon me. This Agency is constantly reviewing its materials to determine whether, apart from the legal requirements of the Information Act, some of them should nevertheless be made available to the public as a matter of policy. Sincerely yours,
FRANK W. McCULLOCH, Chairman.
[Enclosure) Substitute the following section 102.117 for the present one:
102.117 Board materials and formal documents available for public inspection and copying; requests for identifiable records; files and records not subject to inspection ; fees for copying and production.
(a) The following materials are available to the public for inspection and copying during normal business hours at the Board's offices in Washington, D.C.: (1) all final opinions and orders made by the Board in the adjudication of cases; (2) administrative staff manuals and instructions that affect any member of the public (excepting those establishing internal operating rules, guidelines, and procedures for the investigation, trial, and settlement of cases) ; (3) a record of the final votes of each member of the Board in every agency proceeding; and (4) a current index of final opinions and orders which may be relied on, used, or cited as precedent by the agency against any private party. Items (2) and (4) are also available for inspection and copying during normal business hours at each regional, subregional, and resident office of the Board. Opinions and orders made by regional directors in the adjudication of representation cases pursuant to the delegation of authority from the Board under section 3(b) of the act are available to the public for inspection and copying in the regional office where issued.
A copy of a specific and identified final opinion and order made by the Board in the adjudication of a case, which has not as yet been included in a published volume offered for sale, may be obtained without charge upon request made to the Board's director of information in Washington, D.C. A copy of a specific and identified opinion and order made by a regional director in the adjudication of a representation case may be obtained without charge upon request made to the regional office where issued.
Copies of forms prescribed by the Board for the filing of charges under section 10 or petitions under section 9 may be obtained without charge from any regional, subregional, or resident office of the Board.
(b) The formal documents constituting the record in a case or proceeding are matters of official record and, until destroyed pursuant to applicable statutory authority, are available to the public for inspection and copying during normal business hours, at the appropriate regional office of the Board or at the Board's office in Washington, D.C., as the case may be.
The executive secretary shall certify copies of the formal documents upon request made a reasonable time in advance of need and payment of lawfully prescribed costs.
(c) Requests for the inspection and copying of identifiable records other than those specified in subsections (a) and (b) of this section shall be made to the Board through its executive secretary, or to the general counsel, as may be appropriate, in Washington, D.C. Such a request must be in writing and must provide a sufficiently specific description of the record to permit its identification and location. The applicant shall be informed of the time and place at which the record will be made available. Should the Board or the general counsel determine that the request not be granted, prompt notice of the determination shall be given the applicant, accompanied by a written statement of the reasons for the denial.
(d) Subject to the provisions of sections 102.31(c) and 102.66(c), all files, documents, reports, memoranda, and records of the agency falling within the exemptions specified in Public Law 90–23, 5 U.S.C. $ 552(b), shall not be made available for inspection or copying, unless specifically permitted by the Board, its chairman, or its general counsel.
(e) Copies of materials available under subsections (a) and (b) or specifically made available under subsection (c), except for those materials otherwise published and offered for sale, shall be supplied upon request and the payment of established fees for such copying. However, no fees shall be charged for copies of those materials listed in subsection (a) as being obtainable without charge.
In the event the location and production of materials requested by an applicant for his inspection and copying, or for copying by the agency, involve significant cost to the agency, the applicant shall be informed in advance that he will be required to provide reimbursement for the reasonable direct and indirect costs incurred by the agency in such location and production.
J-4750, Barceloneta Shoe Corporation UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO Barceloneta Shoe Corporation and Luis Benitez Carle, its agent, Plaintiffs, v. *Raymond J. Compton, individually and as Regional Director of the 24th Regional Office of the National Labor Relations Board, Defendant, Civil No. 505-67, July 31, 1967.
MEMORANDUM OF DECISION AND ORDER DENYING MOTION FOR INJUNCTION AND
On July 20, 1967 Plaintiffs filed a Complaint seeking to enjoin the Defendant from withholding Agency records and to order the production of Agency records which Defendant had previously refused to make available to Plaintiffs herein upon their request. The Complaint is brought pursuant to the Public Information Section of the Administrative Procedure Act, Public Law 89 487, 80 Stat. 250, revising 5 U.S.C. 552, formerly section 3 of the Administrative Procedure Act, 60 Stat. 237, 5 U.S.C. 1002, (1964 Ed.) which was thereafter codified by Public Law 90–23, 81 Stat. 54 to amend section 552 of title 5, United States Code. In the alternative, Plaintiffs seek an order enjoining Defendant from opening the Board's hearing on an unfair labor practice complaint issued by Defendant and scheduled to begin on August 1, 1967, until such time as the Court rules on the merits herein. Defendant entered a voluntary appearance by counsel, and filed an Answer and Motion to Dismiss on July 26, 1967. Defendant also filed an amendment to the Answer on July 28: A memorandum was filed on July 28, 1967 by Defendant and both parties argued the matter orally on that same day.
The undisputed facts are that Plaintiffs were charged by Sindicato de Trabajadores Packinghouse, Districto 9, Food and Allied Workers of Puerto Rico, with violations of the Labor Management Relations Act of 1947, as amended. While the investigation of these charges was in progress, Plaintiffs, on May 2, 1967 wrote to Defendant requesting that he turn over to them or permit the inspection of “any statements or evidence" received by him during the course of his investigation of the alleged unfair labor practice. Defendant denied the request formally by a letter to Plaintiffs dated June 13, 1967. In addition to a: lengthy explanation for his denial, Defendant maintained that the Agency would follow its normal procedures making investigation affidavits and statements of witnesses available to Plaintiffs during any hearing before the Agency but only after the witnesses had testified on direct examination. Following the July 4, 1967 effective date of the new Public Information Section of the Administrative Procedure Act, Plaintiffs brought this proceeding.
In view of the need for an immediate disposition of the pending motions prior to August 1, 1967 when the Board's hearing is scheduled to begin, the Court is compelled to issue this abbreviated Memorandum of Decision and Order rather than write a formal opinion discussing the overall impact of the new statute on the work of administrative law enforcement agencies such as the National Labor Relations Board. In fact the Court has had just one working day between the day of the argument on this Petition for an injunction and the day of the hearing before the Board, which Plaintiffs are seeking to enjoin.
There is no dispute between the parties as to the nature, content or location of the documents being requested by the Plaintiffs from the Defendant. They consist of affidavits and statements forming a part of an investigatory file in the possession of the Defendant. They are statements of persons who were interviewed by Board agents in connection with the investigation of the unfair labor practice charges filed with Defendant by the Packinghouse Workers Union, and the contents thereof are related to the allegations of said charges.
Plaintiffs contend that they are entitled under the new statute to copy or inspect these documents prior to the opening of the Board's hearing. Defendant concedes that Plaintiffs have a right to inspect the statements of witnesses who have already testified on direct examination at the Board's hearing, for purposes of impeachment. Defendant contends, however, that his refusal to allow the Plaintiffs' request for inspection or copying of statements prior to the hearing is supported by the specific exemptions contained in the new Act, particularly Sections 3(e) (7) and (4).
The new statute places the burden on the Agency whose records are requested to sustain its action. The Court is satisfied that Defendant has met this burden. I conclude that subsection 3(e) (7) of the new Act grants the Board an exemption from the disclosure requirements with respect to its investigatory file materials in this type of proceedings. I also conclude that there is no law within the meaning of subsection 3(e) (7) which requires the production of said materials prior to the holding of the Board's hearing.
In the Jencks Act, 18 U.S.C. 3500, Congress indicated that criminal law enforcement agencies of the Government are not required to produce the statements of witnesses obtained during the investigation of alleged criminal violations prior to the trial of the accused. Congress intended that said statements would be available to the accused during the trial but only after the witness has given direct testimony against him. To me, it is inconceivable that by the new Act, Congress intended to give private parties employers, unions or employees charged with the violation of Federal regulatory statutes any greater right to inspect investigative file material, than has been granted to persons accused of violating Federal criminal law. In general terms I agree with the Attorney General's analysis of the nature and scope of the exemption, in his Memorandum of the Public Information Section of the Administrative Procedure Act, dated June 1967, wherein he states at p. 38:
“The effect of the language in exemption (7), on the other hand, seems to be to confirm the availability to litigants of documents from investigatory files to the extent to which Congress and the courts have made them available to such litigants. For example, litigants who meet the burdens of the Jencks statute (18 U.S.C. 3500) may obtain prior statements given to an FBI agent or an SEC investigator by a witness who is testifying in a pending case; but since such statements might contain information unfairly damaging to the litigant or other persons, the new law, like the Jencks, does not permit the statement to be made available to the public. In addition, the House report makes clear that litigants are not to obtain special benefits from this provision, stating that 'S. 1160 is not intended to give a private party indirectly any earlier or greater access to investigatory files than he would have directly in such litigation or proceedings.' (H. Rept., 11).”
As I suggested before, Congress could not have intended to grant lesser rights of inspection and copying of witnesses' statements to persons who are faced with the deprivation of their life or liberty, than to persons faced only with remedial administrative orders under regulatory statutes.
Defendant also urges that the investigation material in question is exempted from the disclosure requirements of the new Act by the provisions of subsection 3(e)4 of the Act. This subsection deals with documents, given by persons to government agencies, which are of a privileged or confidential nature. I find that statements of persons given in confidence to Board agents in connection with the investigation of unfair labor practice charges fall within the scope of the exemption contained in subsection 3(e)4 of the new Act. I conclude that such information retains its confidential nature, and need not be disclosed by the Board to the public until the persons giving the statements have testified at a hearing.
The reasons urged by the Plaintiffs to support their request for the production of these documents prior to the Board hearing are outweighed by the reasons urged by the Defendant for withholding the documents at this time. It cannot be denied that if disclosure, as urged by Plaintiffs, is allowed, persons interviewed by Board Agents in future investigations will not be as cooperative as they are now if the know that the information they give to the Board agents would be subject to public disclosure at any time before they have actually testified at a public hearing. The hampering effect which this would have upon the Board's investigations is obvious. This is particularly true in situations where employees, who are still working for an employer charged with unfair labor practices, are being interviewed by Board agents. Under these circumstances the Defendant herein has shown a better right to keep his commitment