Takeaway
In short, this case distinguishes protected predecisional and litigation-focused agency work from disclosable final agency law: memoranda explaining a final refusal to bring an NLRB complaint must generally be public, while memoranda authorizing litigation may remain protected as work product.
Under the National Labor Relations Act, the NLRB General Counsel has unreviewable authority to decide whether to issue an unfair-labor-practice complaint. Regional Directors make initial charging decisions, but the General Counsel’s Washington office may issue Advice Memoranda to direct regional handling of specified issues and Appeals Memoranda to resolve a charging party’s appeal from a Regional Director’s refusal to proceed. These memoranda explain the General Counsel’s legal and policy conclusions and instruct the Regional Director how to process the charge.
Sears requested, under the Freedom of Information Act (FOIA), Advice and Appeals Memoranda addressing multiemployer bargaining issues, along with relevant indices. The General Counsel initially refused, invoking principally FOIA Exemption 5 for intra-agency memoranda and Exemption 7 for investigatory files. A later General Counsel voluntarily offered the index to Advice Memoranda and memoranda from closed cases, subject to deletions, but continued to withhold memoranda in open cases and related materials.
The District Court granted summary judgment to Sears. It held that Advice Memoranda were staff instructions affecting the public, Appeals Memoranda were final opinions, and neither class was protected by Exemption 5. It also ordered disclosure of documents expressly incorporated by reference, required indices and explanatory material, and restricted deletions. The D.C. Circuit affirmed without opinion. The Supreme Court granted certiorari to determine how FOIA’s disclosure provisions and exemptions apply to these agency decisionmaking documents.
Issue #1
Whether FOIA Exemption 5 protects agency memoranda that embody the agency’s effective law or explain a decision already made.
Holding
No. Exemption 5 protects the deliberative process and ordinary civil-discovery privileges, but it does not protect final opinions or postdecisional explanations of an agency decision that constitute the agency’s working law.
Reasoning
FOIA establishes a presumption of public disclosure, subject only to specifically defined exemptions. Exemption 5 incorporates the privileges that would ordinarily shield agency records from discovery in civil litigation, including the deliberative-process privilege, attorney-client privilege, and attorney work-product doctrine.
The deliberative-process privilege exists to protect candid advice, recommendations, and debate before an agency reaches a decision. Disclosure of predecisional discussions may chill frank internal consultation and thereby impair the quality of agency decisionmaking.
That rationale does not ordinarily justify withholding a document that explains a decision already reached. Once an agency adopts a policy or resolves a matter, the public has a strong interest in the reasons that actually support the agency’s action. Those reasons are the agency’s working law, not merely tentative internal thinking.
FOIA’s affirmative requirement that agencies disclose and index final opinions, adopted policy statements, interpretations, and public-facing staff instructions confirms Congress’s rejection of secret agency law. Accordingly, Exemption 5 can never shield a document that qualifies as a final opinion made in the adjudication of a case.
Issue #2
Whether Advice and Appeals Memoranda directing that no unfair-labor-practice complaint be filed must be disclosed.
Holding
Yes, subject to any valid claim under another exemption. Memoranda explaining a final decision not to file a complaint are final opinions and are not protected by Exemption 5.
Reasoning
A decision by the General Counsel not to issue a complaint finally disposes of the charging party’s claim. Because the General Counsel’s refusal is unreviewable within the Board’s adjudicatory process, the charging party receives neither a Board hearing nor a statutory remedy.
The Advice or Appeals Memorandum is prepared after the General Counsel has reached that final decision and explains the legal or policy basis for it. Its disclosure therefore does not expose the agency’s predecisional deliberations or interfere with a further decision by the Regional Director, who must follow the instruction to dismiss the charge.
Advice Memoranda are not merely nonbinding suggestions. The General Counsel’s own description of the process showed that they establish uniform policies, are based on prior advice determinations, and contain instructions for final processing of the case. A memorandum directing dismissal thus operates as agency law in a concrete case.
The Administrative Procedure Act defines adjudication as the process of formulating an order, and an order includes a final affirmative or negative disposition of an agency matter. A memorandum explaining the General Counsel’s final denial of a charge is consequently a final opinion made in the adjudication of a case and must be disclosed and indexed under FOIA.
Issue #3
Whether Advice and Appeals Memoranda directing that an unfair-labor-practice complaint be filed are protected by FOIA Exemption 5.
Holding
Yes. Memoranda directing the filing of a complaint are exempt under Exemption 5 as attorney work product prepared in contemplation of litigation.
Reasoning
A decision to file a complaint does not finally resolve the underlying labor dispute. The case will be litigated before the Board, and the General Counsel will serve as an advocate for the charging party during that litigation.
Memoranda authorizing litigation naturally reveal the General Counsel’s theory of the case and may convey litigation strategy or settlement advice. Because they are prepared in anticipation of the forthcoming proceeding, they fall within the attorney work-product protection incorporated into Exemption 5.
Although such memoranda have some operative effect because they permit a case to proceed, the public interest in immediate disclosure is reduced. The legal theory and governing law will ordinarily be tested and made public during the Board proceeding and, if necessary, judicial review.
Issue #4
Whether an otherwise exempt intra-agency document becomes disclosable when a final opinion expressly adopts or incorporates it by reference.
Holding
Yes as to Exemption 5. An agency may not use Exemption 5 to withhold an intra-agency document that it expressly adopts or incorporates into a disclosable final opinion, though another exemption may still apply.
Reasoning
When an agency expressly adopts reasoning in a final opinion, that reasoning becomes the agency’s own explanation for its action. The public interest in knowing the basis of adopted agency policy outweighs the slight risk that disclosure will discourage internal advisers from making recommendations.
Agency employees are not likely to be deterred merely because advice that is ultimately adopted becomes public. Once adopted, the reasoning is the agency’s responsibility to defend, and public acknowledgment that a recommendation prevailed may encourage rather than inhibit candid policy advice.
Thus, documents expressly incorporated into a final opinion cannot remain secret solely under Exemption 5. Their disclosure may nevertheless be limited if they independently qualify under a different FOIA exemption.
Issue #5
Whether FOIA requires the General Counsel to create explanatory material or identify unincorporated records so that disclosed final opinions are fully intelligible.
Holding
No. FOIA requires disclosure of existing agency records, not the creation of new explanatory documents or a post hoc identification of unspecified materials.
Reasoning
FOIA does not compel an agency to write opinions that it otherwise would not prepare. It requires the agency to disclose the opinions and records it has created or is legally required to create.
Accordingly, the District Court erred insofar as its order required the General Counsel to generate explanatory material about the circumstances of a case. The agency also need not search out and identify existing but unincorporated records merely because a requester believes they would make an opinion easier to understand.
Issue #6
Whether Exemption 7 permits withholding the Advice and Appeals Memoranda or documents incorporated in disclosable memoranda.
Holding
The Court declined to decide whether the memoranda themselves were protected by Exemption 7 and remanded. Incorporated documents do not lose a valid Exemption 7 protection merely because a final opinion refers to them.
Reasoning
The General Counsel did not press the Exemption 7 claim regarding the Advice and Appeals Memoranda in the District Court, and the Court of Appeals affirmed without explaining whether it addressed the claim. The Supreme Court therefore lacked both an adequate factual record and a considered lower-court ruling on the issue.
Congress amended Exemption 7 while the case was pending. The amended provision protects law-enforcement records only to the extent disclosure would cause specified harms, such as interfering with enforcement proceedings, invading privacy, revealing confidential sources or techniques, or endangering personnel. The amended statute and its legislative history rejected categorical withholding simply because a record sits in an investigatory file.
Because the amended provision governed the case, the Court remanded for proceedings on its application, including whether the Government had forfeited the claim by failing to raise it below. With respect to documents expressly incorporated into disclosable final opinions, however, the Court held that a genuine Exemption 7 interest survives incorporation: reference in an opinion does not itself eliminate protections for investigative sources, techniques, privacy, or enforcement interests.
Issue #7
Whether the Court should consider the General Counsel’s claim that Exemption 2 protects the memoranda as internal personnel rules and practices.
Holding
No. The Court declined to consider Exemption 2 because the claim was not raised in either lower court.
Reasoning
The General Counsel first advanced the Exemption 2 argument too late. Consistent with its ordinary practice of not resolving legal claims not properly presented and developed below, the Court left that contention unaddressed.