MR. JUSTICE WHITE delivered the opinion of the Court.
The National Labor Relations Board (the Board) and its General Counsel seek to set aside an order of the United States District Court directing disclosure to respondent, Sears, Roebuck & Co. (Sears), pursuant to
The Act's background and its principal objectives are described in EPA v. Mink, 410 U.S. 73, 79-80 (1973), and will not be repeated here. It is sufficient to note for present purposes that the Act seeks "to establish a general philosophy of full agency disclosure unless information is exempted under clearly delineated statutory language." S. Rep. No. 813, 89th Cong., 1st Sess., 3 (1965) (hereinafter S. Rep. No. 813); EPA v. Mink, supra, at 80. As the Act is structured, virtually every document generated by an agency is available to the public in one form or another, unless it falls within one of the Act's nine exemptions. Certain documents described in 5 U. S. C. § 552 (a) (1) such as "rules of procedure" must be published in the Federal Register; other, including "final opinions . . . made in the adjudication of cases," "statements of policy and interpretations which have been adopted by the agency," and "instructions to staff that affect a member of the public," described in 5 U. S. C. § 552 (a) (2),
Sears claims, and the courts below ruled, that the memoranda sought are expressions of legal and policy decisions already adopted by the agency and constitute "final opinions" and "instructions to staff that affect a member of the public," both categories being expressly disclosable
Crucial to the decision of this case is an understanding of the function of the documents in issue in the context of the administrative process which generated them. We deal with this matter first. Under § 1 et seq. of the National Labor Relations Act, as amended by the Labor Management Relations Act, 1947, 61 Stat. 136, 29 U. S. C. § 151 et seq., the process of adjudicating unfair labor practice cases begins with the filing by a private party of a "charge," §§ 3 (d) and 10 (b), 29 U. S. C. §§ 153 (d) and 160 (b); 29 CFR § 101.2 (1974); Auto Workers v. Scofield, 382 U.S. 205, 219 (1965); NLRB v. Indiana & Michigan Electric Co., 318 U.S. 9, 17-18 (1943). Although Congress has designated the Board as the principal body which adjudicates the unfair labor practice case based on such charge, 29 U. S. C. § 160, the Board may adjudicate only upon the filing of a "complaint"; and Congress has delegated to the Office of General Counsel "on behalf of the Board" the unreviewable authority to determine whether a complaint shall be filed. 29 U. S. C. § 153 (d); Vaca v. Sipes, 386 U.S. 171, 182 (1967). In those cases in which he decides that a complaint shall issue, the General Counsel becomes an advocate
In order to structure the considerable power which the administrative scheme gives him, the General Counsel has adopted certain procedures for processing unfair labor practice charges. Charges are filed in the first instance with one of the Board's 31 Regional Directors,
If the charging party exercises this right, the entire file in the possession of the Regional Director will be sent to
The appeals process affords the General Counsel's Office in Washington some opportunity to formulate a coherent policy, and to achieve some measure of uniformity, in enforcing the labor laws. The appeals process alone, however, is not wholly adequate for this purpose: when the Regional Director initially decides to file a complaint, no appeal is available; and when the Regional Director decides not to file a complaint, the charging party may neglect to appeal. Accordingly, to further "fair and uniform administration of the Act,"
When a Regional Director seeks "advice" from the Advice Branch, he does so through a memorandum which sets forth the facts of the case, a statement of the issues on which advice is sought, and a recommendation. The case is then assigned to a staff attorney in the Advice Branch who researches the legal issues presented by reading prior Board and court decisions and "prior advice determinations in similar or related cases," Statement 3076,
This case arose in the following context. By letter dated July 14, 1971, Sears requested that the General Counsel disclose to it pursuant to the Act all Advice and Appeals Memoranda issued within the previous five years on the subjects of "the propriety of withdrawals by employers or unions from multi-employer bargaining, disputes as to commencement date of negotiations, or conflicting interpretations in any other context of the Board's
On August 4, 1971, Sears filed a complaint pursuant to the Act seeking a declaration that the General Counsel's refusal to disclose the Advice and Appeals Memoranda and indices thereof requested by Sears violated the Act, and an injunction enjoining continued violations of the Act. On August 24, 1971, the current General Counsel took office. In order to give him time to develop his own disclosure policy, the filing of his answer was postponed until February 3, 1972. The answer denied that the Act
Not wholly satisfied with the voluntary disclosures offered and made by the General Counsel, Sears moved for summary judgment and the General Counsel did likewise. Sears thus continued to seek memoranda in open cases. Moreover, Sears objected to the deletions in the memoranda in closed cases and asserted that many Appeals Memoranda were unintelligible because they incorporated by reference documents which were not themselves disclosed and also referred to "the `circumstances of the case' " which were not set out and about which Sears was ignorant. The General Counsel contended that all of the documents were exempt from disclosure as "intra-agency" memoranda within the coverage of 5 U. S. C. § 552 (b) (5); and that the documents incorporated by reference were exempt from disclosure as "investigatory files" pursuant to 5 U. S. C. § 552 (b) (7). The parties also did not agree as to the function of an Advice Memorandum. Sears claimed that Advice Memoranda are binding on Regional Directors. The General Counsel claimed that they are not, noting the fact that the Regional Director himself has the delegated power to issue a complaint.
It is clear, and the General Counsel concedes, that Appeals and Advice Memoranda are at the least "identifiable records" which must be disclosed on demand, unless they fall within one of the Act's exempt categories.
The parties are in apparent agreement that Exemption 5 withholds from a member of the public documents which a private party could not discover in litigation with the agency. EPA v. Mink, 410 U. S., at 85-86. Since
That Congress had the Government's executive privilege specifically in mind in adopting Exemption 5 is clear, S. Rep. No. 813, p. 9; H. R. Rep. No. 1497, p. 10; EPA v. Mink, supra, at 86. The precise contours of the privilege in the context of this case are less clear, but may be gleaned from expressions of legislative purpose and the prior case law. The cases uniformly rest the privilege on the policy of protecting the "decision making processes of government agencies," Tennessean Newspapers, Inc. v. FHA, 464 F.2d 657, 660 (CA6 1972); Carl Zeiss Stiftung v. V. E. B. Carl Zeiss, Jena, 40 F. R. D. 318 (DC 1966); see also EPA v. Mink, supra, at 86-87; International Paper Co. v. FPC, 438 F.2d 1349, 1358-1359 (CA2 1971); Kaiser Aluminum & Chemical Corp. v. United States, supra, at 49, 157 F. Supp., at 946; and focus on documents "reflecting advisory opinions, recommendations and deliberations comprising part of a process by which governmental decisions and policies are formulated." Carl Zeiss Stiftung v. V. E. B. Carl Zeiss, Jena, supra, at 324. The point, plainly made in the Senate Report, is that the "frank discussion of legal or policy matters" in writing might be inhibited if the discussion were made public; and that the "decisions" and "policies formulated" would be the poorer as a result. S. Rep. No. 813, p. 9. See also H. R. Rep. No. 1497, p. 10; EPA v. Mink, supra, at 87. As a lower court has pointed out, "there are enough incentives as it is for playing it safe and listing with the wind," Ackerly v. Ley, 137 U. S. App. D. C. 133, 138, 420 F.2d 1336, 1341 (1969), and as we have said in an analogous context, "[h]uman experience teaches that those who expect public dissemination of their remarks may well temper candor with a concern for appearances . . . to the
Manifestly, the ultimate purpose of this long-recognized privilege is to prevent injury to the quality of agency decisions. The quality of a particular agency decision will clearly be affected by the communications received by the decisionmaker on the subject of the decision prior to the time the decision is made. However, it is difficult to see how the quality of a decision will be affected by communications with respect to the decision occurring after the decision is finally reached; and therefore equally difficult to see how the quality of the decision will be affected by forced disclosure of such communications, as long as prior communications and the ingredients of the decisionmaking process are not disclosed. Accordingly, the lower courts have uniformly drawn a distinction between predecisional communications, which are privileged,
This conclusion is powerfully supported by the other provisions of the Act. The affirmative portion of the Act, expressly requiring indexing of "final opinions," "statements of policy and interpretations which have been adopted by the agency," and "instructions to staff that affect a member of the public," 5 U. S. C. § 552 (a) (2), represents a strong congressional aversion to "secret [agency] law," Davis, supra, at 797; and represents an affirmative congressional purpose to require disclosure of documents which have "the force and effect of law." H. R. Rep. No. 1497, p. 7. We should be reluctant, therefore, to construe Exemption 5 to apply to the documents described in 5 U. S. C. § 552 (a) (2); and with respect at least to "final opinions," which not only invariably explain agency action already taken or an agency decision already made, but also constitute "final dispositions"
It is equally clear that Congress had the attorney's work-product privilege specifically in mind when it adopted Exemption 5 and that such a privilege had been recognized in the civil discovery context by the prior case law. The Senate Report states that Exemption 5 "would include the working papers of the agency attorney and documents which would come within the attorney-client privilege if applied to private parties," S. Rep. No. 813, p. 2; and the case law clearly makes the attorney's work-product rule of Hickman v. Taylor, 329 U.S. 495 (1947), applicable to Government attorneys in litigation. Kaiser Aluminum & Chemical Corp. v. United States, 141 Ct. Cl., at 50, 157 F. Supp, at 947; United States v. Anderson, 34 F. R. D. 518 (Colo. 1963); Thill Securities Corp. v. New York Stock Exchange, 57 F. R. D. 133 (ED Wis. 1972); J. H. Rutter Rex Mfg. Co., Inc. v. NLRB, 473 F.2d 223 (CA5), cert. denied, 414 U.S. 822 (1973). Whatever the outer boundaries of the attorney's work-product rule are, the rule clearly applies to memoranda prepared by an attorney in contemplation of litigation which set forth the attorney's theory of the case and his litigation strategy. In re Natta, 410 F.2d 187 (CA3), cert. denied sub nom. Montecatini Edison v. E. I. du Pont de Nemours & Co., 396 U.S. 836 (1969); State ex rel. Dudek v. Circuit Court for Milwaukee
Applying these principles to the memoranda sought by Sears, it becomes clear that Exemption 5 does not apply to those Appeals and Advice Memoranda which conclude that no complaint should be filed and which have the effect of finally denying relief to the charging party; but that Exemption 5 does protect from disclosure those Appeals and Advice Memoranda which direct the filing of a complaint and the commencement of litigation before the Board.
Under the procedures employed by the General Counsel, Advice and Appeals Memoranda are communicated to the Regional Director after the General Counsel, through his Advice and Appeals Branches, has decided whether or not to issue a complaint; and represent an explanation to the Regional Director of a legal or policy decision already adopted by the General Counsel. In the case of decisions not to file a complaint, the memoranda effect as "final" a "disposition," see discussion, infra, at 158-159, as an administrative decision can—representing, as it does, an unreviewable rejection of the charge filed by the private party. Vaca v. Sipes, 386 U.S. 171 (1967). Disclosure of these memoranda would not intrude on predecisional processes, and protecting them would not improve the quality of agency decisions, since when the memoranda are communicated to the Regional Director, the General Counsel has already reached his decision and the Regional Director who receives them has no decision to make—he is bound to dismiss the charge. Moreover, the General Counsel's decisions not to file complaints together with the Advice
The General Counsel contends, however, that the Appeals Memoranda represent only the first step in litigation and are not final; and that Advice Memoranda are advisory only and not binding on the Regional Director, who has the discretion to file or not to file a complaint. The contentions are without merit. Plainly, an Appeals Memorandum is the first step in litigation only when the appeal is sustained and it directs the filing of a complaint;
For essentially the same reasons, these memoranda are "final opinions" made in the "adjudication of cases" which must be indexed pursuant to 5 U. S. C. § 552 (a) (2) (A). The decision to dismiss a charge is a decision in a "case" and constitutes an "adjudication": an "adjudication" is defined under the Administrative Procedure Act, of which 5 U. S. C. § 552 is a part, as "agency process for the formulation of an order," 5 U. S. C. § 551 (7); an "order" is defined as "the whole or a part of a final disposition, whether affirmative [or] negative . . . of an agency in a matter . . . ," 5 U. S. C. § 551 (6) (emphasis added); and the dismissal of a charge, as noted above, is a "final disposition."
Advice and Appeals Memoranda which direct the filing of a complaint, on the other hand, fall within the coverage of Exemption 5. The filing of a complaint does not finally dispose even of the General Counsel's responsibility with respect to the case. The case will be litigated before and decided by the Board; and the General Counsel will have the responsibility of advocating the position of the charging party before the Board. The Memoranda will inexorably contain the General Counsel's theory of
We recognize that an Advice or Appeals Memorandum directing the filing of a complaint—although representing only a decision that a legal issue is sufficiently in doubt to warrant determination by another body—has many of the characteristics of the documents described in 5 U. S. C. § 552 (a) (2). Although not a "final opinion" in the "adjudication" of a "case" because it does not effect a "final disposition," the memorandum does explain a decision already reached by the General Counsel which has real operative effect—it permits litigation before the Board; and we have indicated a reluctance to construe Exemption 5 to protect such documents. Supra, at 153. We do so in this case only because the decisionmaker—the General Counsel—must become a litigating party to the case with respect to which he has made his decision. The attorney's work-product policies which Congress clearly incorporated into Exemption 5 thus come into play and lead us to hold that the Advice and Appeals Memoranda directing the filing of a complaint are exempt whether or not they are, as the District Court held, "instructions to staff that affect a member of the public."
Petitioners assert that the District Court erred in holding that documents incorporated by reference in nonexempt Advice and Appeals Memoranda lose any exemption they might previously have held as "intra-agency" memoranda.
The probability that an agency employee will be inhibited from freely advising a decisionmaker for fear that his advice, if adopted, will become public is slight. First, when adopted, the reasoning becomes that of the agency and becomes its responsibility to defend. Second, agency employees will generally be encouraged rather than discouraged by public knowledge that their policy suggestions have been adopted by the agency. Moreover, the public interest in knowing the reasons for a policy actually adopted by an agency supports the District Court's decision below. Thus, we hold that, if an agency chooses expressly to adopt or incorporate by reference an intra-agency memorandum previously covered by Exemption 5 in what would otherwise be a final opinion, that memorandum may be withheld only on the ground that it falls within the coverage of some exemption other than Exemption 5.
Petitioners also assert that the District Court's order erroneously requires it to produce or create explanatory material in those instances in which an Appeals Memorandum refers to the "circumstances of the case." We agree. The Act does not compel agencies to write
Finally, petitioners argue that the Advice and Appeals Memoranda are exempt, pursuant to 5 U. S. C. §§ 552 (b) (2) and (7) (Exemptions 2 and 7), and that the documents incorporated therein are protected by Exemption 7. With respect to the Advice and Appeals Memoranda, we decline to reach a decision on these claims for the reasons set forth below, and with respect to the documents incorporated therein, we remand for further proceedings.
Exemption 7 provided, at the time of Sears' request for documents and at the time of the decisions of the courts below, that the Act does not apply to "investigatory files compiled for law enforcement purposes except to the extent available by law to a party other than an agency." Noting support in the legislative history for the proposition that this exemption applies to the civil "enforcement" of the labor laws, H. R. Rep. No. 1497, p. 11, the General Counsel asserts that the "documentation underlying advice and appeals memoranda are `investigatory files' " and that he "believes" the memoranda are themselves similarly
Two factors combine to convince us that we should not reach the claim that Advice and Appeals Memoranda are protected by Exemption 7. First, the General Counsel did not make this claim in the District Court; and although he did make it in the Court of Appeals, that court affirmed without opinion on the basis of its prior decision in another case not involving Exemption 7, and it is not clear whether the Court of Appeals passed on the claim. Thus, not only are we unenlightened on the question whether Advice and Appeals Memoranda, as factual matter, contain information the disclosure of which would offend the purposes of Exemption 7, but we are
Second, Congress has amended Exemption 7 since petitioners filed their brief in this case. It now applies to
The legislative history clearly indicates that Congress disapproves of those cases, relied on by the General Counsel, see n. 29, supra, which relieve the Government of the obligation to show that disclosure of a particular investigatory file would contravene the purposes of Exemption 7. S. Conf. Rep. No. 93-1200 (1974). The language of the amended Exemption 7 and the legislative history underlying it clearly reveal a congressional intent to limit application of Exemption 7 to agency records so that it would apply only to the extent that "the production of such records would interfere with enforcement proceedings, deprive a person of a right to a fair trial or
Any decision of the Exemption 7 issue in this case would have to be under the Act, as amended, Fusari v. Steinberg, 419 U.S. 379, 387 (1975), and, apart from the General Counsel's failure to raise the issue, the lower courts have had no opportunity to pass on the applicability of the Act, as amended, to Advice and Appeals Memoranda, since the amendment occurred after the decision by the Court of Appeals.
The General Counsel's claim that Advice and Appeals Memoranda are documents "related solely to the internal personnel rules and practices of an agency" and therefore protected by Exemption 2 was raised neither in the District Court nor in the Court of Appeals and we decline to reach it for the reasons set forth above.
Finally, the General Counsel claims that the documents, incorporated by reference in Advice and Appeals Memoranda, which were previously protected by Exemption 7, should not lose their exempt status by reason of
In summary, with respect to Advice and Appeals Memoranda which conclude that a complaint should not be filed, we affirm the judgment of the Court of Appeals subject to its decision on remand whether the Government is foreclosed from pursuing its Exemption 7 claim. With respect to documents specifically incorporated therein, we remand for a determination whether these documents are protected by Exemption 7, as amended. Insofar as the judgment of the Court of Appeals requires the General Counsel to supply documents not expressly incorporated by reference in these Advice and Appeals Memoranda, or otherwise to explain the circumstances of the case, it is reversed; and with respect to Advice and Appeals Memoranda which conclude that a complaint
The CHIEF JUSTICE concurs in the judgment.
MR. JUSTICE POWELL took no part in the consideration or decision of this case.
"Each agency, in accordance with published rules, shall make available for public inspection and copying—
"(A) final opinions, including concurring and dissenting opinions, as well as orders, made in the adjudication of cases;
"(B) those statements of policy and interpretations which have been adopted by the agency and are not published in the Federal Register; and
"(C) administrative staff manuals and instructions to staff that affect a member of the public;
"unless the materials are promptly published and copies offered for sale. To the extent required to prevent a clearly unwarranted invasion of personal privacy, an agency may delete identifying details when it makes available or publishes an opinion, statement of policy, interpretation, or staff manual or instruction. . . ."
"Except with respect to the records made available under paragraphs (1) and (2) of this subsection, each agency, on request for identifiable records made in accordance with published rules stating the time, place, fees to the extent authorized by statute, and procedure to be followed, shall make the records promptly available to any person. . . ."
"This section does not apply to matters that are—
"(2) related solely to the internal personnel rules and practices of an agency;
"(5) inter-agency or intra-agency memorandums or letters which would not be available by law to a party other than an agency in litigation with the agency . . . ;
"(7) investigatory files compiled for law enforcement purposes except to the extent available by law to a party other than an agency . . . ."
Sears' rights under the Act are neither increased nor decreased by reason of the fact that it claims an interest in the Advice and Appeals Memoranda greater than that shared by the average member of the public. The Act is fundamentally designed to inform the public about agency action and not to benefit private litigants. EPA v. Mink, 410 U.S. 73, 79, 92 (1973); Renegotiation Board v. Bannercraft Clothing Co., 415 U.S. 1, 24 (1974). Accordingly, we will not refer again to Sears' underlying unfair labor practice charge.