Julius G. GETMAN et al. v. NATIONAL LABOR RELATIONS BOARD, Appellant.
No. 71-1097.
United States Court of Appeals, District of Columbia Circuit.
Argued June 15, 1971. Decided Aug. 31, 1971.
450 F.2d 670
Before WRIGHT, MacKINNON and ROBB, Circuit Judges.
Messrs. Stephen B. Goldberg, Champaign, Ill., and Julius G. Getman, Bloomington, Ind., with whom Mr. Lee M. Modjeska, Washington, D. C., was on the brief, for appellees.
Mr. Marvin M. Karpatkin, New York City, for Consumers Union of United States, Inc., as amicus curiae.
This case is before the court on appeal by the National Labor Relations Board from a judgment of the District Court ordering the Board to “provide [appellees] with names and addresses of employees eligible to vote in approximately 35 elections to be designated by [appellees], as soon as those names and addresses are in [the Board‘s] possession.” Although the immediate controversy arises in a labor law context, the central decisional issue involves the right to and limits on disclosure of Government information under the Freedom of Information Act.1
I
The history of this action begins with a request by appellees on October 28, 1969 that the Board furnish them the names and home addresses of employees eligible to vote in certain representation elections. The Board now maintains lists of such names and addresses pursuant to its decision in Excelsior Underwear, Inc., 156 NLRB 1236 (1966),2 to assure that unions have a fair chance to communicate with employees bеfore elections and to facilitate the Board‘s function of resolving challenges to voter eligibility. Appellees, who are professors of labor law engaged in an NLRB voting study, seek a limited number of Excelsior lists in the Board‘s possession to facilitate scheduling of interviews with employees before and after certain elections. Appellees propose to question willing employees regarding their atti-
On April 22, 1970, the Board denied appellees’ request for the Excelsior lists because, in its judgment, their proposed study would be likely to upset the “laboratory conditions”3 required for conducting a fair representation election. Even if the proposed interviews would not actually prejudice elections, the Board feared that it would be obliged to conduct investigations and hold hearings concerning interview-related objections, and that this delay would be in disregard of the congressional policy embodied in the National Labor Relations Act that representation issues should be resolved as rapidly as possible.
On August 6, 1970, appellees filed the instant suit in the District Court alleging that they are entitled to the Excelsior lists under the Freedom of Information Act. The Board argued that the Freedom of Information Act does not require it to furnish the information sought by appellees because such information falls within Exemptions (4), (6) and (7) of the Act. Cross-motions for summary judgment were filed, and the District Court found on January 21, 1971 that the Board had failed to satisfy its burden of establishing that the requested information was exempted. The District Court further found that, even assuming it had power to deny disclosure on grounds other than those set out in the specific ex-
For the reasons elaborated below, we agree with the District Court that the Board‘s refusal to disclose the information requested by appellees is not justified under any of the specific exemptions of the Freedom of Information Act. We hold further that a District Court has no equitable jurisdiction to permit withholding of information which does not fall within one of the exemptions of the Act. Accordingly, we affirm the judgment of the District Court.
II
The primary purpose of the Freedom of Information Act is “to increase the citizen‘s access to government records. * * *” “* * * The legislative plan creates a liberal disclosure requirement, limited only by specific exemptions which are to be narrowly construed. * * *” Bristol-Myers Co. v. F.T.C., 138 U.S.App.D.C. 22, 25, 424 F.2d 935, 938 (1970).5 (Footnotes omitted.) Subsection (a)(3) of the Act provides in pertinent part that
“each agency, on requеst for identifiable records * * *, shall make the records promptly available to any person. On complaint, [a] district court of the United States * * * has jurisdiction to enjoin the agency from withholding agency records and to order the production of any agency records improperly withheld from the complain[ant]. In such a case the court shall determine the matter de novo and the burden is on the agency to sustain its action. * * *”
Subsection (b) of the Act exempts from disclosure nine categories of information. The Board relies on the following three to preclude disclosure in this case:
“(4) trade secrets and commercial or financial information obtained from a person and privileged or confidential;
* * * * * *
“(6) personnel and medical files and similar files thе disclosure of which would constitute a clearly unwarranted invasion of personal privacy;
“(7) investigatory files compiled for law enforcement purposes except to the extent available by law to a party other than an agency[.]”
Of the three exemptions relied upon by the Board, Exemptions (4) and (7) are simply inapplicable. The Board, citing the Attorney General‘s memorandum,6 maintains that Exemption (4) applies to any information given the Government in confidence. But this interpretation tortures the plain meaning of Exemption (4). We agree with the court in Consumers Union of United States, Inc. v. Veterans Administration, S.D.N.Y., 301 F.Supp. 796, 802 (1969), that “this section exempts only (1) trade secrets and (2) information which is (a)
commercial or financial, (b) obtained from a person, and (c) privilеged or confidential. The exemption given by the Congress does not apply to information which does not satisfy the three requirements stated in the statute.”7 Obviously, a bare list of names and addresses of employees which employers are required by law to give the Board, without any express promise of confidentiality, and which cannot be fairly characterized as “trade secrets” or “financial” or “commercial” information is not exempted from disclosure by Subsection (b)(4).
Nor is the Board‘s refusal to disclose justified by Exemption (7), which covers “investigatory files compiled for law enforcement purposes except to the extent available by law to a [private] party.” According to Senate Report No. 813 on S. 1160, 89th Cong., 1st Sess., at 9 (1965), “These are the files prеpared by Government agencies to prosecute law violators.8 Their disclosure of such files, except to the extent they are available by law to a private party, could harm the Government‘s case in court.” The Excelsior lists are not files prepared primarily or even secondarily to prosecute law violators, and even if they ever were to be used for law enforcement purposes, it is impossible to imagine how their disclosure could prejudice the Government‘s case in court. Even if this court had not held that spe-
Although Exemption (6) differs from Exemptions (4) and (7) in that it covers information similar in some respects to the kind being sought in this case, we agree with the District Court that the Board has not met the burden of proof required to justify a refusal to disclose under this part of the Act. Exemption (6) applies to “personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.” Assuming that the Excelsior lists may be characterized as “personnel and medical files and similar files,” it is still only a disclosure constituting a “clearly unwarranted invasion of personal privacy” that falls within the scope of Exemption (6). Exemption (6) requires a court reviewing the matter de novo to balance the right of privacy of affected individuals against the right of the public to be informed10; and the statutory language “clearly unwarranted” instructs the court to tilt the balance in favor of disclosure.11
In carrying out the balancing of interests required by Exemption (6), our first inquiry is whether disclosure of the names and addresses of employees constitutes an invasion of privacy and, if so, how serious an invasion. We find that, although a limited number of employees will suffer an invasion of privacy in losing their anonymity and in being asked over the telephone if they
In determining whether this relatively minor invasion of privacy is “clearly unwarranted,” we must also weigh the public interest purpose of appellees’ NLRB voting study, the quality of the study itself, and the possibility that appellees could pursue their study without the Excelsior lists. As previously indicated, the Board has established complicated rules and enforcement procedures governing the behavior of the parties during election cаmpaigns. The costs of Board regulation are great. The proportion of elections in which the losing party has filed objections has risen to almost one in seven in recent years,15 and such objections require expensive and time consuming investigation, hearings and rulings. Interference with the “laboratory conditions” required to conduct these elections may indeed result in elections being set aside, as the Board contends. But there is no proof to support the contention. It will be time enough to consider the relief to which the Board is entitled if and when a showing of disruption of Board functions is made.
We agree with appellees that it is ironic that the Board should attempt to use speculation about added delays in the prompt resolution of questions of representation as a basis for preventing this study. One of the primary goals of the study is to consider the feasibility of changing Board rules to eliminate unnecessary grounds for challenges to elections, so as to streamline the entire process. Thus the Board is taking a too shortsighted view of its own self interest. Moreover, the Board‘s position suffers from the obvious self-justifying tendency of an institution which in over 30 years has itself never engaged in the kind of much needed systematic empirical effort to determine the dynamics of an election campaign or the type of conduct which actually has a coercive impact.16 The public interest need for such
an empirical investigation into the assumptions underlying the Board‘s regulation of campaign tactics has for some time been recognized by labor law scholars.17 This particular study has been reviewed and supported by virtually every major scholar in the labor law field.18 The record is also replete with testimonials from leading management and union representatives and Government officials.19 Appellees’ research has also been approved by the prestigious National Science Foundation, which has awarded appellees the largest grant ever made available for law related research.20
Without reviewing the practical workings of the NLRB voting study in detail here, the court notes that appellees Getman and Goldberg are both highly qualified specialists in labor law,21 that they have designed their study carefully and in collaboration with scholars in the field of survey research over the рast two years, and that they have selected and trained their interviewers carefully to avoid biasing effects in the questioning process. The interview part of the study has been tested in three pilot elections and evaluation reveals no evidence which would support the Board‘s fears that the interviewing might have the effect of confusing or inhibiting the employees. According to the uncontested statement of appellees, no employee who has consented to an initial interview has yet declined to schedule a second interview or to vote in the subsequent election. No employee has brought a complaint concerning the study to either appellees or the Board. Followup checks have shown that employees havе been answering truthfully such “sensitive” questions as whether they signed a union authorization card and how they voted.
In striking the balance necessary to determine whether disclosure of the Excelsior lists would constitute a clearly unwarranted invasion of privacy, it is also significant that appellees are asking for the names and addresses of employees in only 35 out of the approximately 15,000 elections which the Board will supervise during the next two years22 and that appellees have no other source for obtaining the names and ad-
Having considered and weighed all of the above factors, we find it impossible to say that disclosure of the Excelsior lists would constitute a clearly unwarranted invasion of employee privacy under Exemption (6) of the Freedom of Information Act.24 If anything, our finding is that disclosure for purposes of appellees’ study is clearly warranted. The invasion of employee privacy strikes us as very minimal, and the possible detrimental effects of the study in terms of delaying the election process as highly speculative. On the other hand, the study holds out an unusual promise. As the National Science Foundation con-
cluded in its Proposal Review Summary and Program Recommendations:
“The investigators are among the ablest young labor law professors in the country and both have had considerable practical experience in the work of the National Labor Relations Board. In affiliation with a sophisticated social science survey research organization, thеy have developed a distinctive effort to test the behavioral basis on which an important body of labor law is founded. A successful project here would serve as a much-needed model to encourage further empirical work to test the behavioral assumptions underlying important laws.”
JA 164, Ex. 44.
III
Having found that nondisclosure of the Excelsior lists is not warranted under Exemption (4), (6) or (7), we must still resolve the question whether the courts have equitable discretion to permit withholding of information which does not fall within one of the specific exemptions to the Act. The District Court in this case held that, “[a]ssuming that [a District Court], in an action under the Freedom of Information Act, may deny disclosure on grounds other than those set out in the specific exemptions to the Act, the burden of justifying non-disclosure must still rest upon the agency. I find that the Board has
In order to appreciate the significance of the relevant language of
The question whether the courts retain equitable discretion under the Act is settled for us by the express language of the Act, aided by the gloss from the Senate report. Section 552(c) states:
“This section does not authorize withholding of information or limit the availability of records to the public, except as specifically stated in this section. * * *”31
The Senate report states:
“The purpose of [§ 552(c)] is to make it clear beyond doubt that all materials of the Government are to be made available to the public by publication or otherwise unless explicitly allowed to be kept secret by one of the exemptions in [§ 552(b)]. * * *”
S.Rep. at 10. (Emphasis in original.) The Senate report also sets out that:
“It is the purpose of the present bill to eliminate such phrases [as ‘requiring secrecy in the public interest,’ or ‘required for good cause to be held confidential‘], to establish a general philosophy of full agency disclosure unless information is exempted under clearly delineated statutory language and to provide a court procedure by which citizens and the press may obtain information wrongfully withheld. It is important and necessary that the present void be filled. It is essential that agency personnel, and the courts as well, be given definitive guidelines in setting information policies. * * *”
Id. at 3.32
“* * * Congress clearly has the power to eliminate ordinary discretionary barriers to injunctive relief, and we believe that Congress intended to do so here.
“* * * Through the general disclosure requirement and specific exemptions, the Act thus strikes a balance among factors which would ordinarily be deemed relevant to the exercise of equitable discretion, i. e., the public interest in freedom of information and countervailing public and private interests in secrecy. Since judicial use of traditional equitable principles to prevent disclosure would upset this legislative resolution of conflicting interests, we are persuaded that Congress did not intend to confer on district courts a general power to deny relief on equitable grounds apart from exemptions in the Act itself. * * *”
Soucie v. David, 145 U.S.App.D.C. at 154, 448 F.2d at 1077.
To sum up, the names and addresses of employees are information within the scope of the Freedom of Information Act, which was designed in part to “provide the means by which the people of this country can become informed and thus be able to scrutinize the activities and operation of their Government.”33 While the Board is correct that the Excelsior lists are but the first step in the total information gathering process in which appellees are engaged and that the lists themselves do not in any direсt sense reveal anything about the Board‘s operations, there is no language or principle embodied in the Act which requires that information sought under its authority be sufficient, in and of itself, to evaluate the agency‘s performance. The Excelsior lists failing to fall within any of the Act‘s enumerated exemptions, and there being no equitable discretion in a District Court to create new exemptions, appellees are entitled to disclosure.
Affirmed.
MacKINNON, Circuit Judge (concurring):
The extremely broad sweep of the Freedom of Information Act, with its narrow exemptions, makes it mandatory in my opinion—if we are to follow the directions of Congress—to direct the National Labor Relations Board to furnish appellees with the names and addresses of employees as requested. However, I agree with the Bоard that this request could lead to undesirable interference in elections. Furnishing these lists for use by third parties during the representation election may interject a third factor which really has no place in the election. I cannot say, however, that the release of the lists “would constitute a clearly unwarranted invasion of privacy.” Whether appellees’ interference in these elections will be misunderstood and mis-
My principal concern is for the future. We are here following the dictates of Congress and are making information available for a use that may interfere with the proper functioning of government. This use may have its beneficial effects also, but before the good is harvested considerable turmoil and disruption may result. And this decision is only the beginning. We may expect similar wholesale demands for lists of names and addresses from other persons, not for what they may disclose about the functioning of government, but for their collateral ability to aid the person requesting such information.
While it must be recognized that the Board might return the lists to the employers and in the future might alter its Excelsior rule so that employers would deliver the names and addresses to the unions directly rather than filing them with the regional directors,1 and thus obviate the requirement to disclose, the annoyance to individuals and the Government that could result from requiring the Government to furnish various lists of names and addresses to various persons on request could be very substantial.
It seems to me that furnishing bare lists of names and addresses of various groups of persons in various Government files is not the sort of disclosure that Congress basically had in mind in enacting the Freedom of Information Act. But in my opinion, the Act as it presently exists practically requires the disclosure of such lists on demand. One need not elaborate on the various abuses that could result if lists of people as classified by the Government for particular purposes became available practically on demand in wholesale lots. If this situation is to be corrected, it will require an amendment to the Act.
McGowan, Circuit Judge, did not participate.
Notes
The Board maintains at page 16 of its brief, citing General Services Administration v. Benson, supra Note 8, 415 F.2d at 880, that the Ninth Circuit has also held that equitable discrеtion lies to deny disclosure even though none of the exemptions of the Act are applicable. Despite some ambiguous dicta, however, a reading of Benson shows that the court made only the much more limited holding that, in determining whether the fifth exemption under the Act is applicable, the court must weigh the effect on the public interest in accordance with traditional equity principles. See, e. g., American Mail Line, Ltd. v. Gulick, supra Note 10, 133 U.S.App.D.C. at 389 & n. 15, 411 F.2d at 703 & n. 15. In fact, Epstein v. Resor, 9 Cir., 421 F.2d 930, 932-933, cert. denied, 398 U.S. 965, 90 S.Ct. 2176, 26 L.Ed.2d 549 (1970), suggests that the Ninth Circuit would agree with this court‘s and the Fourth Circuit‘s interpretation of the Act.