LABORER'S INTERNATIONAL UNION OF NORTH AMERICA: REPORT CONCERNING COMPLIANCE BY THE NATIONAL LABOR RELATIONS BOARD WITH THE PUBLIC INFORMATION ACT

On July 4, 1966 President Johnson signed into law S. 1160, 80 Stat. 250 (1966), codified by 81 Stat. 54 (1967), 5 U.S.C. § 552, commonly known as the Public Information Act of 1966. This Act, by revising Section 3 of the Administrative Procedure Act, provides guidelines to make the records of federal departments and agencies available to the public in general.

The predicate for the Public Information Act's passage arose from a recognition of the fact that in a free society "secret law" is abominable and that insofar as administrative agencies are concerned if the public is to be afforded the "right-to-know", it must be given a real opportunity for access and acquisition of the "law" applied by its government. The legislation therefore provides substantive provisions requiring agencies to index, and make available for inspection and copying, the numerous opinions, statements of policy and interpretation, orders and other general legal and procedural instructions upon which the agency relies in discharging its responsibility. The legislation also broadens the concept of "standing" by recognizing that "any person" who has been denied the opportunity to inspect and copy appropriate agency records may proceed in a United States District Court "to enjoin the agency from the withholding of agency records and to order the production of any agency records improperly withheld from the complainant.

In such cases the court shall determine the matter de novo and the burden shall be upon the agency to sustain its action." 5 U.S.C. § 552(a) (3).

While the substantive provisions of the Act appear to provide the public with unlimited access to agency records, Section 552(b) incorporates nine specific exemptions which limit agency disclosure to the extent "specifically stated in this section. . . ." The Senate Committee Report makes it clear that the purpose of Section 552 (b) was to ensure that all materials of Government are to be made available to the public unless one of the enumerated exemptions specifically permits the agency to keep the matter secret. See, Davis, The Information Act: A Preliminary Analysis, 34 U. Chi. L. Rev. 761, 793 (1967). Presumably, then, in order to properly discharge its burdens during the course of litigation, the agency would have to demonstrate that its action in refusing to disclose requested information falls within the coverage of one of the "specifically stated" exemptions.

It is beyond the scope of this Subcommittee's assignment to explore, in depth, the relevant legislative history, judicial decisions, and problems of interpretation which the courts will ultimately be called upon to define in measuring the full effect to be accorded this new law. For the interested practitioner the Subcommittee recommends the following materials which bear upon the legislation: 1. Attorney General's Memorandum on the Public Information Section of the Administrative Procedure Act-Department of Justice, June 1967 (GPO); 2. Davis, The Information Act: A Preliminary Analysis, 34 University of Chicago Law Review, 761 (No. 4, Summer, 1967);

3. Public Information Act and Interpretive and Advisory Rulings, 20 Administrative Law Review 1 (Dec. 1967).

4. House Report No. 97, to accompany S. 1160: 2 U.S. Code Cong. & Ad. News, 2418 et seq. 1966;

5. Senate Report No. 813, to accompany S. 1160: 89th Cong., 1st Sess. 1965. In an effort to ascertain the extent to which the National Labor Relations Board is complying with the Public Information Act, this Subcommittee met in Washington, D.C. on January 25 and 26, 1968. In attendance were Arthur M. Schiller and George J. Zazas, Co-Chairman, and Bernard F. Ashe and S. G. Clark, Jr., members. Two additional members, Messrs. Earle K. Shawe and Gerald Treanor, were unable to attend because of other commitments.

By prior arrangement, the Committee met on January 25, 1968 with members of the Public Information Committee of the Administrative Law Section of the American Bar Association. Representing that Committee were Messrs, James Rogers, Jack Lahr, and Theodore Sky. Also in attendance was Mr. Benny L. Kass, Assistant Counsel to the Senate Subcommittee on Administrative Practice. Our discussion with members of the Administrative Law Committee and Mr. Kass included a review of the history of the legislation and the various legislative compromises considered by the Congress. Notwithstanding the fact that the affirmative grants of disclosure and production of records were weakened by the inclusion of nine exemptions, it was generally felt that with

the clear thrust of the Act directing more and fuller disclosure, and with the burden shifted to the agency to justify non-disclosure, a more positive attitude would, in time, develop among Government officials. Indeed, the experiences of members of the Public Information Committee of the Administrative Law Section, in connection with agencies other than the NLRB, demonstrated the progress being made. The excellent and detailed field manual published by the U.S. Patent Field Office was examined. There was discussion of the comprehensive publications of the U.S. Department of Labor which contained opinions and directives relating to the enforcement of the Landrum-Griffin Act. It was further noted that even in connection with operations of the Department of Defense, that an index of directives was published to that directives which were classified for security purposes, and would therefore be withheld from disclosure, nevertheless were reflected in the index.

While the meeting with the Administrative Law Committee did not produce unanimity in the difficult task of interpretation and application of the legislation, the session was extremely beneficial to all parties in providing a focus for examination of the radiating effects of the Act in connection with the operations of other agencies. This Subcommittee heartily endorse the continued liaison and exchange of information with the Public Information Committee in connection with the Public Information Act and governmental operations in general.

On Friday, January 26, 1968, the Committee met with the following representatives of the National Labor Relations Board: Messrs. Fanning, Feldesman, Fields, Kleeb, Gordon, Come, Bokat, and Weinbrecht. Several items of the agenda had previously been presented to the Board for consideration and were disposed of at the outset; the remaining items were included on the Subcommittee agenda as initial points of new inquiry. The following is a summary of discussions had and agreements reached with the representatives of the NLRB.

Among the items which were pending at the conclusion of the November meeting of the full Committee with representatives of the NLRB were questions relating to the omission of certain sections of the published Field Manual, the failure of the General Counsel to publish all of the memoranda issued to the field, and the fact that all of the agency's opinions and orders were not published.

I. FIELD MANUAL

NLRB representatives indicated that the publication of the Field Manual had been undertaken in the face of a deadline and it was readily conceded that certain matters were omitted which should have been published. The indication, however, was that any such omissions were minor, few in number, and the result of inadvertent error rather than conscious suppression.

The NLRB noted that at the time the revised Field Manual was published, notice was given that interested persons could purchase the manual from the Government Printing Office and that supplementary material for the Field Manual would automatically go to such subscribers as such materials were published.

During the course of this discussion copies of "Revision No. 1" dated February 15, 1968, were distributed to members of this Subcommittee. The NLRB representatives also advised that it has established a Field Manual committee which will review the publication with an eye toward publishing such revisions as they appear necessary.

The suggestion was made to the NLRB that consideration be given to the publication of an index of those sections of the Field Manual which are presently omitted. Subsequent to our meeting the NLRB advised that it would study this suggestion and, based thereon, advise the Subcommittee of the possible publication of an index of those portions of the Field Manual which it does not believe should be made public.

II. GENERAL COUNSEL MEMORANDA

With respect to General Counsel Memoranda, it was indicated that any material contained in such memoranda which is appropriate for disclosure ultimately becomes part of the Field Manual and that, in the future, such memoranda will be promulgated in the form of revisions to the Field Manual. The NLRB representatives stated that at the present time the agency does not have any additional memoranda which it believes it is required to disclose.

At this point members of the Subcommittee called to the attention of the NLRB the practice of the Defense Department in indexing its directives, even to the