The question presented is whether the Freedom of Information Act (FOIA), 5 U. S. C. § 552 (1976 ed.), requires the National Labor Relations Board to disclose, prior to its hearing on an unfair labor practice complaint, statements of witnesses whom the Board intends to call at the hearing. Resolution of this question depends on whether production of the material prior to the hearing would "interfere with enforcement proceedings" within the meaning of Exemption 7 (A) of FOIA, 5 U. S. C. § 552 (b) (7) (A) (1976 ed.).
Following a contested representation election in a unit of respondent's employees, the Acting Regional Director of the NLRB issued an unfair labor practice complaint charging respondent with having committed numerous violations of § 8 (a) (1) of the National Labor Relations Act (NLRA), 29 U. S. C. § 158 (a) (1), during the pre-election period.
Respondent appealed to the Board's General Counsel. Before expiration of the 20-day period within which FOIA requires such appeals to be decided, 5 U. S. C. § 552 (a) (6) (A) (ii) (1976 ed.), respondent filed this action in the United States District Court for the Northern District of Alabama, pursuant to 5 U. S. C. § 552 (a) (4) (B) (1976 ed.). The complaint sought not only disclosure of the statements, but also a preliminary injunction against proceeding with the unfair labor practice hearing pending final adjudication of the FOIA claim and a permanent injunction against holding the hearing until the documents had been disclosed. At argument in the District Court, the Board contended, inter alia, that these statements were exempt from disclosure under Exemption 7 (A), because their production would "interfere" with a pending enforcement proceeding. The District Court held that, since the Board did not claim that release of the documents at issue would pose any unique or unusual danger of interference with this particular enforcement proceeding. Exemption 7 (A) did not apply. App. 62, 91. It therefore directed the Board to provide the statements for copying on or before April 22, 1976, or at least five days before any hearing where the person making the statement would be called as a witness.
On the Board's appeal, the United States Court of Appeals for the Fifth Circuit commenced its discussion by observing that while "[t]his is a [FOIA] case, . . . it takes on the troubling coloration of a dispute about the discovery rights . . .
In addressing this question, the Court of Appeals rejected the Board's argument that the premature revelation of its case that would flow from production of the statements prior to the hearing was the kind of "interference" that would justify nondisclosure under the 1974 amendments. Reasoning that the only statements sought were those of witnesses whose prior statements would, under the Board's own rules, be disclosed to respondent following the witnesses' hearing testimony, the court also rejected as inapplicable the argument that potential witnesses would refrain from giving statements at all if prehearing disclosure were available. Id., at 729-731. Finally, while the Court of Appeals agreed with the Board that there was "some risk of interference . . . in the form of witness intimidation" during the five-day period between disclosure and the hearing under the District Court's order, it held that the Board had failed to sustain its burden of demonstrating the availability of Exemption 7 (A), because it had "introduced [no] evidence tending to show that this kind of intimidation"
The Board filed a petition for a writ of certiorari, seeking review, inter alia,
We granted certiorari to resolve the conflict among the Circuits on this important question of federal statutory law. 434 U.S. 1061 (1978). We now reverse the judgment of the Fifth Circuit.
We have had several occasions recently to consider the history and purposes of the original FOIA of 1966. See EPA v. Mink, 410 U.S. 73, 79-80 (1973); Renegotiation Board v. Bannercraft Clothing Co., 415 U.S. 1 (1974); NLRB v. Sears, Roebuck & Co., 421 U.S. 132 (1975); Department of Air Force v. Rose, 425 U.S. 352 (1976). As we have repeatedly emphasized, "the Act is broadly conceived," EPA v. Mink, supra, at 80, and its "basic policy" is in favor of disclosure, Department of Air Force v. Rose, supra, at 361. In 5 U. S. C. § 552 (b) (1976 ed.), Congress carefully structured nine exemptions from the otherwise mandatory disclosure requirements in order to protect specified confidentiality and privacy
Exemption 7 as originally enacted permitted nondisclosure of "investigatory files compiled for law enforcement purposes except to the extent available by law to a private party." 80
The Board contends that the original language of Exemption 7 was expressly designed to protect existing NLRB policy forbidding disclosure of statements of prospective witnesses until after they had testified at unfair labor practice hearings. In its view, the 1974 amendments preserved Congress' original intent to protect witness statements in unfair labor practice proceedings from premature disclosure, and were directed primarily at case law that had applied Exemption 7 too broadly to cover any material, regardless of its nature, in an investigatory file compiled for law enforcement purposes. The Board urges that a particularized, case-by-case showing is neither required nor practical, and that witness statements in pending unfair labor practice proceedings are exempt as a matter of law from disclosure while the hearing is pending.
Respondent disagrees with the Board's analysis of the 1974 amendments. It argues that the legislative history conclusively demonstrates that the determination of whether disclosure of any material would "interfere with enforcement proceedings" must be made on an individual, case-by-case basis. While respondent agrees that the statements sought
The starting point of our analysis is with the language and structure of the statute. We can find little support in the language of the statute itself for respondent's view that determinations of "interference" under Exemption 7 (A) can be made only on a case-by-case basis. Indeed, the literal language of Exemption 7 as a whole tends to suggest that the contrary is true. The Exemption applies to:
There is a readily apparent difference between subdivision (A) and subdivisions (B), (C), and (D). The latter subdivisions refer to particular cases—"a person," "an unwarranted invasion," "a confidential source"—and thus seem to require a showing that the factors made relevant by the statute are present in each distinct situation. By contrast, since subdivision (A) speaks in the plural voice about "enforcement
Respondent points to other provisions of FOIA in support of its interpretation. It suggests that, because FOIA expressly provides for disclosure of segregable portions of records and for in camera review of documents, and because the statute places the burden of justifying nondisclosure on the Government, 5 U. S. C. §§ 552 (a) (4) (B), (b) (1976 ed.), the Act necessarily contemplates that the Board must specifically demonstrate in each case that disclosure of the particular witness' statement would interfere with a pending enforcement proceeding. We cannot agree. The in camera review provision is discretionary by its terms, and is designed to be invoked when the issue before the District Court could not be otherwise resolved; it thus does not mandate that the documents be individually examined in every case. Similarly, although the segregability provision requires that nonexempt portions of documents be released, it does not speak to the prior question of what material is exempt. Finally, the mere fact that the burden is on the Government to justify nondisclosure does not, in our view, aid the inquiry as to what kind of burden the Government bears.
We thus agree with the parties that resolution of the question cannot be achieved through resort to the language of the statute alone. Accordingly, we now turn to an examination of the legislative history.
In originally enacting Exemption 7, Congress recognized that law enforcement agencies had legitimate needs to keep certain records confidential, lest the agencies be hindered in their investigations or placed at a disadvantage when it came time to present their cases. Foremost among the purposes of this Exemption was to prevent "harm [to] the Government's case in court," S. Rep. No. 813, 89th Cong., 1st Sess. (1965), reprinted in Freedom of Information Act Source Book, Subcommittee
Senator Humphrey was particularly concerned that the initial version of the Exemption passed by the Senate might be "susceptible to the interpretation that once a complaint of unfair labor practice is filed by the General Counsel of the NLRB, access could be had to the statements of all witnesses, whether or not these statements are relied upon to support the complaint." Ibid. He argued against this, noting that "[w]itnesses would be loath to give statements if they knew that their statements were going to be made known to the parties before the hearing," id., at 111, and proposed adding another exemption to make clear that "statements of agency witnesses" would be exempt "until such witnesses are called to testify in an action or proceeding," id., at 110.
In light of this history, the Board is clearly correct that the 1966 Act was expressly intended to protect against the mandatory disclosure through FOIA of witnesses' statements prior to an unfair labor practice proceeding. From one of the first reported decisions under FOIA, Barceloneta Shoe Corp. v. Compton, 271 F.Supp. 591 (PR 1967), through the time of the 1974 amendments, the courts uniformly recognized this purpose. Thus, in Wellman Industries, Inc. v. NLRB, 490 F.2d 427 (CA4), cert, denied, 419 U.S. 834 (1974), the Court of Appeals held that affidavits obtained by an NLRB investigator during an inquiry into union objections to a representation election, which ultimately led to the filing of an unfair labor practice charge, were exempt from disclosure sought by the employer prior to the hearing on the complaint. It noted that employees might become unwilling to make "`uninhibited and non-evasive statement[s]'" if disclosure were granted, 490 F. 2d, at 431, quoting NLRB v. National Survey Service, Inc., 361 F.2d 199, 206 (CA7 1966), and emphasized that application of the exemption was "necessary in order to prevent premature disclosure of an investigation so that the Board can present its strongest case in court." 490 F. 2d, at 431. Accord, NLRB v. Clement Bros. Co., 407 F.2d 1027, 1031 (CA5 1969).
In 1974 Congress acted to amend FOIA in several respects. The move to amend was prompted largely by congressional disapproval of our decision in EPA v. Mink, 410 U.S. 73 (1973), regarding the availability of in camera review of classified documents. Congress was also concerned that administrative agencies were being dilatory in complying with the
Senator Hart, in introducing his floor amendment, noted that the original intent of the 1966 Congress "was to prevent harm to the Government's case in court by not allowing an opposing litigant earlier or greater access to investigatory files than he would otherwise have." 1975 Source Book 332. He indicated his continued agreement with this purpose, id., at 333, but stated that recent court decisions had gone beyond this original intent by shielding from disclosure information that Congress had not intended to protect. Senator Hart emphasized his concern that "material cannot be and ought not be exempt merely because it can be categorized as an investigatory file compiled for law enforcement purposes." Ibid.
In colloquy with Senator Kennedy on the floor, Senator Hart stated specifically, id., at 349, that the amendment's purpose was to respond to four decisions of the District of
Senator Hart believed that his amendment would rectify these erroneous judicial interpretations and clarify Congress' original intent in two ways. First, by substituting the word "records" for "files," it would make clear that courts had to consider the nature of the particular document as to which exemption was claimed, in order to avoid the possibility of
Thus, the thrust of congressional concern in its amendment of Exemption 7 was to make clear that the Exemption did not endlessly protect material simply because it was in an investigatory file. Although, as indicated previously, no change in this section was reported out of committee, both Senate and House Committees had considered proposals to amend the provision.
That the 1974 Congress did not mean to undercut the intent of the 1966 Congress with respect to Senator Humphrey's concern about interference with pending NLRB enforcement proceedings is apparent from the emphasis that both Senators Kennedy and Hart, the leaders in the debate on Exemption 7, placed on the fact that the amendment represented no radical departure from prior case law. While the D. C. Circuit decisions discussed above were repeatedly mentioned and condemned in the debates, nowhere do the floor debates or
In the face of this history, respondent relies on Senator Hart's floor statement that "it is only relevant" to determine whether an interference would result "in the context of the particular enforcement proceeding." Id., at 333. Respondent argues that this statement means that in each case the court must determine whether the material of which disclosure is sought would actually reveal the Government's case prematurely, result in witness intimidation, or otherwise create a demonstrable interference with the particular case.
We believe that respondent's reliance on this statement is misplaced. Although Congress could easily have required in so many words that the Government in each case show a particularized risk to its individual "enforcement proceedin[g]," it did not do so;
Respondent also relies on President Ford's message accompanying his veto of this legislation, and on the debate which led to Congress' override of the veto. The President's primary concern was with the congressional response to this Court's decision in EPA v. Mink, 410 U.S. 73 (1973), concerning in camera judicial review of classified documents under Exemption 1. In addition, however, the President cited what in his view were the onerous new requirements of Exemption 7 that would require the Government to "prove . . .—separately for each paragraph of each document—that disclosure `would' cause" a specific harm. 1975 Source Book 484. The leading supporters of the 1974 amendments, however, did not accept the President's characterization; instead they indicated, with regard to the amended Exemption 7, that the President's suggestions were "ludicrous," id., at 406 (remarks of Rep. Moorhead), and that the "burden is substantially less than we would be led to believe by the President's message," id., at 450 (remarks of Sen. Hart).
What Congress clearly did have in mind was that Exemption 7 permit nondisclosure only where the Government "specif[ies]" that one of the six enumerated harms is present, id., at 413 (remarks of Rep. Reid), and the court, reviewing the question de novo, agrees that one of those six "reasons" for nondisclosure applies. See supra, at 232. Thus, where an agency fails to "demonstrat[e] that the . . . documents [sought] relate to any ongoing investigation or . . . would jeopardize any future law enforcement proceedings." Exemption 7 (A) would not provide protection to the agency's decision. 1975
The remaining question is whether the Board has met its burden of demonstrating that disclosure of the potential witnesses' statements at this time "would interfere with enforcement proceedings." A proper resolution of this question requires us to weigh the strong presumption in favor of disclosure under FOIA against the likelihood that disclosure at this time would disturb the existing balance of relations in unfair labor practice proceedings, a delicate balance that Congress has deliberately sought to preserve and that the Board maintains is essential to the effective enforcement of the NLRA. Although reasonable arguments can be made on both sides of this issue, for the reasons that follow we conclude that witness statements in pending unfair labor practice proceedings are exempt from FOIA disclosure at least until completion of the Board's hearing.
Historically, the NLRB has provided little prehearing discovery in unfair labor practice proceedings and has relied principally on statements such as those sought here to prove its case. While the NLRB's discovery policy has been criticized, the Board's position that § 6 of the NLRA. 29 U. S. C. § 156, commits the formulation of discovery practice to its
Not only would this change the substantive discovery rules, but it would do so through mechanisms likely to cause substantial delays in the adjudication of unfair labor practice
In the absence of clear congressional direction to the contrary, we should be hesitant under ordinary circumstances to interpret an ambiguous statute to create such dislocations. Not only is such direction lacking, but Congress in 1966 was particularly concerned that premature production of witnesses' statements in NLRB proceedings would adversely affect that agency's ability to prosecute violations of the NLRA, and, as indicated above, the legislative history of the 1974 amendments affords no basis for concluding that Congress
The most obvious risk of "interference" with enforcement proceedings in this context is that employers or, in some cases, unions will coerce or intimidate employees and others who have given statements, in an effort to make them change their testimony or not testify at all. This special danger flowing from prehearing discovery in NLRB proceedings has been recognized by the courts for many years, see, e. g., NLRB v. Vapor Blast Mfg. Co., 287 F.2d 402, 407 (CA7), cert. denied, 368 U.S. 823 (1961); NLRB v. National Survey Service, Inc., 361 F.2d 199, 206 (CA7 1966); NLRB v. Lizdale Knitting Mills, 523 F.2d 978, 980 (CA2 1975), and formed the basis for Senator Humphrey's particular concern, see supra, at 225. Indeed, Congress recognized this danger in the NLRA itself, and provided in § 8 (a) (4) that it is an unfair labor practice for an employer "to discharge or otherwise discriminate against an employee because he has filed charges or given testimony under this subchapter." 29 U. S. C. § 158 (a) (4). See NLRB v. Scrivener, 405 U.S. 117, 121 (1972). Respondent's argument that employers will be deterred from improper intimidation of employees who provide statements to the NLRB by the possibility of a § 8 (a) (4) charge misses the point of Exemption 7 (A); the possibility of deterrence arising from post hoc disciplinary action is no substitute for a prophylactic
The danger of witness intimidation is particularly acute with respect to current employees—whether rank and file, supervisory, or managerial—over whom the employer, by virtue of the employment relationship, may exercise intense leverage. Not only can the employer fire the employee, but job assignments can be switched, hours can be adjusted, wage and salary increases held up, and other more subtle forms of influence exerted. A union can often exercise similar authority over its members and officers. As the lower courts have recognized, due to the "peculiar character of labor litigation[,] the witnesses are especially likely to be inhibited by fear of the employer's or—in some cases—the union's capacity for reprisal and harassment." Roger J. Au & Son, Inc. v. NLRB, 538 F.2d 80, 83 (CA3 1976). Accord, NLRB v. Hardeman Garment Corp., 557 F.2d 559 (CA6 1977). While the risk of intimidation (at least from employers) may be somewhat diminished with regard to statements that are favorable to the employer, those known to have already given favorable statements are then subject to pressure to give even more favorable testimony.
Furthermore, both employees and nonemployees may be reluctant to give statements to NLRB investigators at all, absent assurances that unless called to testify in a hearing, their statements will be exempt from disclosure until the unfair labor practice charge has been adjudicated. Such reluctance may flow less from a witness' desire to maintain complete confidentiality—the concern of Exemption 7 (D)—than from an all too familiar unwillingness to "get too involved" unless
In short, prehearing disclosure of witnesses' statements would involve the kind of harm that Congress believed would constitute an "interference" with NLRB enforcement proceedings: that of giving a party litigant earlier and greater access to the Board's case than he would otherwise have. As the lower courts have noted, even without intimidation or harassment a suspected violator with advance access to the Board's case could "`construct defenses which would permit violations to go unremedied.'" New England Medical Center Hosp. v. NLRB, 548 F.2d 377. 382 (CA1 1976), quoting Title Guarantee Co. v. NLRB, 534 F. 2d, at 491. This possibility arises simply from the fact of prehearing disclosure of any witness
The basic purpose of FOIA is to ensure an informed citizenry, vital to the functioning of a democratic society, needed to check against corruption and to hold the governors accountable to the governed. 1974 Source Book 38; see also NLRB v. Sears, Roebuck & Co., 421 U. S., at 152. Respondent concedes that it seeks those statements solely for litigation discovery purposes, and that FOIA was not intended to function as a private discovery tool, see Renegotiation Board v. Bannercraft Clothing Co., 415 U. S., at 22.
Consideration of the underlying policy of the Act as it applies in this case thus reinforces our conclusion that Congress, having given no explicit attention to this problem in its 1974 legislation, could not have intended to overturn the NLRB's longstanding rule against prehearing disclosure of
The judgment of the Court of Appeals is, accordingly,
MR. JUSTICE STEVENS, with whom THE CHIEF JUSTICE and MR. JUSTICE REHNQUIST join, concurring.
The "act of meddling in" a process is one of Webster's accepted definitions of the word "interference."
MR. JUSTICE POWELL, with whom MR. JUSTICE BRENNAN joins, concurring in part and dissenting in part.
I join the Court's opinion to the extent that it holds that Exemption 7 (A) of the Freedom of Information Act (Act or FOIA), 5 U. S. C. § 552 (b) (7) (A) (1976 ed.), permits the federal courts to determine that "with respect to particular kinds of enforcement proceedings, disclosure of particular kinds of investigatory records while a case is pending would generally `interfere with enforcement proceedings.'" Ante, at 236.
The starting point is the language of Exemption 7 (A). Congress provided for the nondisclosure of "investigatory records compiled for law enforcement purposes, but only to the extent that the production of such records would (A) interfere with enforcement proceedings . . . ." Establishing a presumption of disclosure, the Act "does not authorize withholding of information or limit the availability of records to the public,
The language of Exemption 7 (A) simply cannot be squared with the Court's conclusion that "giving a party litigant earlier and greater access to the Board's case than he would otherwise have" under agency rules is "the kind of harm that Congress believed would constitute an `interference' with NLRB enforcement proceedings . . . ." Ante, at 241. It is instructive to compare the 1974 amendment with the 1966 version of the "investigatory files" exemption. Exemption 7 as originally enacted permitted nondisclosure of "investigatory files compiled for law enforcement purposes except to the extent available by law to a private party." 80 Stat. 251.
Nor does the legislative history provide more than ambiguous support for the Court's reading. There are statements by Senator Hart, the principal sponsor of the Exemption 7 amendment, that appear favorable. But these statements, made on the floor of the Senate, are not very clear on the point in dispute. Thus while Senator Hart noted that the original intent of the 1966 provision was to deny "an opposing litigant earlier or greater access to investigative files than he would otherwise have," 120 Cong. Rec. 17033 (1974), reprinted in 1975 Source Book 332, he also said that Exemption 7 (A) "would apply whenever the Government's case in court— a concrete prospective enforcement proceeding—would be harmed by the premature release of evidence or information not in the possession of known or potential defendants." Id., at 333. If Exemption 7 (A) were intended to authorize nondisclosure in every pending proceeding, it is doubtful that Senator Hart would have spoken in terms of "whenever the Government's case in court . . . would be harmed by the premature release . . ." I find equally unilluminating statements to the effect that the 1974 amendment was not intended to work "a radical departure from existing case law under the Freedom of Information Act." Id., at 334 (remarks of Sen. Hart).
The one point that emerges with clarity is that Congress intended that "the courts look . . . to the reasons for the seventh exemption before allowing the withholding of documents." Ibid. But it is difficult to reconcile that principle with the underlying rationale of the Court's opinion that "the release of information in investigatory files prior to the completion of an actual, contemplated enforcement proceeding was precisely the kind of interference that Congress continued to want to protect against." Ante, at 232. Congress had before it several proposals that would have drawn the line between
The Court's approach in this case also is in tension with Congress' most recent amendment to the Act. Congress in 1976 overturned our decision in FAA Administrator v. Robertson, 422 U.S. 255 (1975), which held that Exemption 3, 5 U. S. C. § 552 (b) (3), should not be interpreted to disturb a broad delegation of authority to an agency to withhold information from the public. Pub. L. No. 94-409, § 5 (b) (3), 90 Stat. 1247. Congress tightened the standard for Exemption
The Court appropriately recognizes the danger that FOIA claims are "likely to cause substantial delays in the adjudication of unfair labor practice charges." Ante, at 237-238. But Congress had a right to insist, as I believe it did in the 1974 legislation, that nondisclosure of investigatory records be grounded in one of the six specific categories of harm set out in Exemption 7, even though litigation may ensue over disputed claims of exemption.
As the Court demonstrates, the congressional requirement of a specific showing of harm does not prevent determinations of likely harm with respect to prehearing release of particular categories of documents. The statements of the Act's sponsors in urging an override of President Ford's veto of the 1974 amendments shed light on this point. The President's message to Congress explained that "confidentiality would not be maintained if many millions of pages of FBI and other investigatory law enforcement files would be subject to compulsory disclosure at the behest of any person unless the Government could prove to a court—separately for each paragraph of each document—that disclosure `would' cause a type of harm specified in the amendment." 1975 Source Book 484. The bill's proponents discounted the President's concern. See id., at 405-406 (remarks of Rep. Moorhead); id., at 451-452
In my view, the Board has demonstrated a "reasonable possibility" that harm will result from prehearing disclosure of statements by current employees that are damaging to their employer's case in an unfair labor practice proceeding. The Courts of Appeals have recognized with virtual unanimity that due to the "peculiar character of labor litigation[,] the witnesses are especially likely to be inhibited by fear of the employer's or—in some cases—the union's capacity for reprisal and harassment." Roger J. Au & Son, Inc. v. NLRB, 538 F.2d 80, 83 (CA3 1976).
The Board knows from experience that an employer or a union charged with an unfair labor practice often can exercise special influence—either through threats or promises of benefit—over employees or members whose welfare and opportunity for advancement depend on remaining in the good graces of the charged party. Accordingly, the Court has construed § 8 (a) (4) of the National Labor Relations Act, as amended, 61 Stat. 140, 29 U. S. C. § 158 (a) (4), to protect employees who give written sworn statements to a Board field examiner even when they do not file a charge or testify at a formal hearing on the charge. NLRB v. Scrivener, 405 U.S. 117 (1972).
Although the Board may be able to impose post hoc sanctions for interference with its witnesses, see 29 U. S. C. §§ 158 (a) (4) and 162; 18 U. S. C. § 1505 (1976 ed.), these remedies cannot safeguard fully the integrity of ongoing unfair labor practice proceedings. Intimidation or promise of benefit may be subtle and not susceptible of proof. As the Board cannot proceed without a charge filed by knowledgeable individuals, see Nash v. Florida Industrial Comm'n, 389 U.S. 235, 238 (1967), many instances of interference could go undetected. Even if interference is detected and a complaint is filed, appropriate sanctions often cannot be imposed until after the initial unfair labor practice proceeding has terminated. Moreover, as the Court notes, many employees, mindful of the
Until the Board's view here is proved unfounded, as an empirical matter, I agree that the danger of altered testimony— through intimidation or promise of benefit—provides sufficient justification for the judgment that disclosure of unfavorable statements by current employees prior to the time when they are called to give testimony before an administrative law judge, "would interfere with enforcement proceedings . . . ."
But the Court holds that all "witness statements in pending unfair labor practice proceedings are exempt from FOIA disclosure at least until completion of the Board's hearing. . . ." Ante, at 236. I find no warrant for that sweeping conclusion in the expressed intention of the 93d Congress. Exemption 7 (A) requires that the Board demonstrate a reasonable possibility that disclosure would "interfere with enforcement proceedings. . . ." In my view, absent a particularized showing of likely interference, statements of all witnesses—other than current employees in proceedings against employers (or union members in proceedings against unions)—are subject to the statutory presumption in favor of disclosure. In contrast to the situation of current employees or union members, there simply is no basis for presuming a particular likelihood of employer interference with union representatives or others not employed by the charged party, or, in a proceeding against a union, of union interference with employer representatives and other nonmembers of the union or the bargaining unit. Similarly,
I do not read the Act to authorize agencies to adopt or adhere to nonstatutory rules
I would reverse the judgment of the Court of Appeals to the extent that it requires prehearing disclosure of unfavorable statements by respondent's current employees, but affirm as to any remaining statements in dispute.
"This section does not apply to matters that are—
"(1) (A) specifically authorized under criteria established by an Executive order to be kept secret in the interest of national defense or foreign policy and (B) are in fact properly classified pursuant to such Executive order;
"(2) related solely to the internal personnel rules and practices of an agency;
"(3) specifically exempted from disclosure by statute (other than section 552b of this title), provided that such statute (A) requires that the matters be withheld from the public in such a manner as to leave no discretion on the issue, or (B) establishes particular criteria for withholding or refers to particular types of matters to be withheld;
"(4) trade secrets and commercial or financial information obtained from a person and privileged or confidential;
"(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;
"(6) personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy;
"(7) investigatory records compiled for law enforcement purposes, but only to the extent that the production of such records would (A) interfere with enforcement proceedings, (B) deprive a person of a right to a fair trial or an impartial adjudication, (C) constitute an unwarranted invasion of personal privacy, (D) disclose the identity of a confidential source and, in the case of a record compiled by a criminal law enforcement authority in the course of a criminal investigation, or by an agency conducting a lawful national security intelligence investigation, confidential information furnished only by the confidential source, (E) disclose investigative techniques and procedures, or (F) endanger the life or physical safety of law enforcement personnel;
"(8) contained in or related to examination, operating, or condition reports prepared by, on behalf of, or for the use of an agency responsible for the regulation or supervision of financial institutions; or
"(9) geological and geophysical information and data, including maps, concerning wells.
"Any reasonably segregable portion of a record shall be provided to any person requesting such record after deletion of the portions which are exempt under this subsection."
Assuming, arguendo, that the references to Ditlow and Weinberger mean that Congress disapproved of their holdings, as well as their reasoning, we do not think this disapproval undercuts our conclusion that the records sought here are protected In Ditlow, Exemption 7 was held to protect correspondence between automobile manufacturers and the National Highway Safety Traffic Administration concerning an apparently extended investigation of possible defects. Similarly, in Weinberger, Exemption 7 protection was extended to material in investigatory files of the Department of Health, Education, and Welfare relating to desegregation of the public schools in the North. In each of these cases, no enforcement proceeding was contemplated, much less imminent. Here, by contrast, an imminent adjudicatory proceeding is involved, in which the special dangers of interference with enforcement proceedings from prehearing disclosure are necessarily of a finite duration.
"`(7) investigatory records compiled for any specific law-enforcement purpose the disclosure of which is not in the public interest, except to the extent that—
"`(A) any such investigatory records are available by law to a party other than an agency, or
"`(B) any such investigatory records are—
"`(i) scientific tests, reports, or data.
"`(ii) inspection reports of any agency which relate to health, safety, environmental protection, or
"`(iii) records which serve as a basis for any public policy statement made by any agency or officer or employee of the United States or which serve as a basis for rulemaking by any agency.'"
See 1 Hearings on S. 858 et al. before the Subcommittee on Intergovernmental Relations of the Senate Committee on Government Operations and the Subcommittees on Separation of Powers and Administrative Practice and Procedure of the Senate Committee on the Judiciary, 93d Cong., 1st Sess., 507 (1973) (hereinafter Senate Hearings); Hearings on H. R. 5425 et al. before a Subcommittee of the House Committee on Government Operations, 93d Cong., 1st Sess., 7 (1973) (hereinafter House Hearings). In addition, H. R. 4960 would have amended the Exemption with the following language:
"investigatory records compiled [sic] for law enforcement purposes, but only to the extent that production of such records would constitute (A) a genuine risk to enforcement proceedings. (B) a clearly unwarranted invasion of personal privacy, or (c) [sic] a threat to life." House Hearings 12.
The hearings on these proposals reflected Senator Hart's concern that the courts were applying the language of the Exemption too literally and without regard for its underlying purposes. One witness from the American Civil Liberties Union, for example, emphasized that "[w]hat is being gotten at here . . . is the old investigatory files, the dead files, the files that are yellowing in the Justice Department and the FBI . . . ." 2 Hearings on S. 1142 et al. before the Subcommittees on Administrative Practice and Procedure and Separation of Powers of the Senate Judiciary Committee and the Subcommittee on Intergovernmental Relations of the Senate Committee on Government Operations, 93d Cong., 1st Sess., 40 (1973) (hereinafter cited as 2 Senate Hearings) (statement of John Shattuck, ACLU staff counsel). See also House Hearings 28 (remarks of Rep. Erlenborn); id., at 78 (remarks of Rep. Horton). Senator Kennedy at one point proposed an amendment that would protect only actively pending cases, 2 Senate Hearings 2; the proposal was similar to a Justice Department proposal that would exempt all files in pending cases, and closed files but to a more limited extent. Id., at 227.
"Investigatory records compiled for law enforcement purposes, but only to the extent that the production of such records would (A) interfere with enforcement proceedings, (B) deprive a person of a right to a fair trial or an impartial adjudication, (C) disclose the identity of an informer, or (D) disclose investigative techniques and procedures." Id., at 158.
The Hart amendment, proposed on the floor, incorporated most of this language and all of the language found in Exemption 7 (A):
"Investigatory records compiled for law enforcement purposes, but only to the extent that the production of such records would (A) interfere with enforcement proceedings, (B) deprive a person of a right to a fair trial or an impartial adjudication or constitute a clearly unwarranted invasion of personal privacy, (C) disclose the identity of an informer, or (D) disclose investigative techniques and procedures."
After passing the Senate in this form, the amendment was modified to its present form, see supra, at 223, in Conference Committee.
The Senator may have been mistaken as to the year of the first decision extending Exemption 7 protection automatically even in closed-file cases. In Frankel v. SEC, 460 F.2d 813 (CA2 1972), over the strong dissent of Judge Oakes (the author of the later Title Guarantee opinion), the court held that material in an investigatory file was exempt from disclosure even though the investigation was complete and no enforcement proceedings were pending. Given the long history of cases construing NLRB witness statements as nondisclosable, see supra, at 226, we may assume that these decisions were not the object of the Senator's amendment.
Contrary to these authorities, the Fifth Circuit has held that "when good cause is shown [the NLRB] should permit discovery" in unfair labor practice proceedings. NLRB v. Rex Disposables, 494 F.2d 588, 592 (1974), citing NLRB v. Safway Steel Scaffolds Co., 383 F.2d 273 (CA5 1967), cert. denied, 390 U.S. 955 (1968) (relying on § 10 (b) of the NLRA, 29 U. S. C. § 160 (b)). This view of discovery in Board proceedings may have influenced the decision of the court below, since it noted that, under the Fifth Circuit's approach to NLRB discovery, granting the FOIA request here might not have given the employer any more information about the Board's case than it could otherwise have obtained. Since the court below did not rest on this ground, but instead indicated that the prospect of premature revelation of the Board's case was not, of itself, an "interference" with enforcement proceedings, see supra, at 218, we intimate no view as to the validity of the Fifth Circuit's approach to Board discovery.