extent of identifying those which are classified for security purposes. The Subcommittee urged the Board to consider publishing indexes of all its Manuals, memoranda, directives, etc. In the course of the discussion the NLRB noted that the question of indexing entails comprehensive paper work; that titles and sections of manuals might have to be revised in order to sanitize the material which the agency believes it is not required to disclose; and that an index might be used to spawn litigation under the Act in cases where no legitimate purpose could be served by disclosure.

Subsequent to the meeting, representatives of the NLRB indicated that it will continue to study the possibility of publishing an index of General Counsel memoranda and that the publication might well serve as a substitute for the Subcommittee's initial desire to have the actual memoranda available in all cases. At the same time, the NLRB indicated that to the extent these memoranda reflect the General Counsel's interpretations of substantive law, i.e., considerations of Board and court decisions and their application, these materials would not be made available to the public. The stated reasons for non-disclosure are that these memoranda are viewed as analogous to a lawyer's working papers, which are not binding on the Board or the courts, and which, while "arguably" may be binding on the General Counsel in the discretionary province of complaint issuance, are in the nature of nonprecedential and nonbinding policy, subject to modification or reversal at any time that the General Counsel so desires.

During this discussion, the Subcommittee inquired whether there exists within the NLRB any current manuals, statements of policy, or interpretations of substantive law which are not now available to the general public.

Member Fanning, on behalf of the Board, stated that it does not issue interpretative bulletins of any kind other than advisory opinions pursuant to provisions of the statute. The Board does not implement the decisions it renders, but permits the General Counsel to interpret its decisions and establish his own policy with respect to the thandling of future cases.

In response to the Subcommittee's question, representatives of the General Counsel stated that the General Counsel's office has received no instructions from the Board with respect to substantive law since the 1947 amendments were passed. It was further stated that no interpretative memoranda covering a significant area of the law has been prepared by the General Counsel and promulgated to the field since "Operation 60" which related to the then-new amendments to the Labor-Management Relations Act created by the 1959 Landrum-Griffin legislation. The General Counsel's representative did state that frequently memoranda are sent to field offices advising that certain classes of cases should be referred to Washington, D.C. before complaint issues. This practice usually occurs when there are new developments in the law and the General Counsel wishes to proceed on a case-by-case basis in developing complaint policy; the evolvement of agency policy emerges from these ad hoc determinations. The Subcommittee was advised that the General Counsel would be opposed to making available to the public the memoranda containing the substantive and theoretical bases upon which the case is remanded from Washington to the particular region with authorization for the issuance of complaint. These memoranda, it was reported, go only to the regional office in which the particular case is then pending and are not generally circulated among the other regional offices.

In view of the foregoing representations that the "advice" memoranda relate solely to the particular case referred to Washington for advice, and the representation that the determination by the General Counsel to authorize the Regional Director to proceed in that case does not rise to the stature of policy or precedent which is either promulgated among the regions generally or constitutes a basis for issuance of complaint in other cases, the Subcommittee does not believe that these memoranda necessarily are required to be published or otherwise made available for inspection under the provisions of the Public Information Act of 1966.

III. UNPUBLISHED OPINIONS AND ORDERS

In connection with this question, the general response from the NLRB was that the problem was primarily a fiscal one. It was reported that all opinions and orders of the Board are available, but that budgetary limitations prohibit the inclusion of all such matters in the bound volumes. The existence of all such decisions and orders can be ascertained by obtaining from the NLRB's Division of Information the weekly summary of cases and the quarterly report of the Genera! Counsel. These publications, it was reported, are available to anyone upon request.

The Subcommittee then inquired about the availability of decisions of Regional Directors in representation cases. The NLRB representatives acknowledged that these decisions are not otherwise indexed or identified, but they are available to anyone upon request of the Regional Director who is responsible for the issuance of the decision. It was also reported that the Regional Director of one region has no access to the decision of other Regional Directors beyond that which is available to members of the bar generally, and, as a matter of general policy, it was stated that Regional Directors are instructed not to cite unpublished decisions, either their own or those of other Regional Directors, as precedent or authority except in a subsequent case involving the same parties.

In view of the foregoing representations and practices, which reflect longstanding agency policy even pre-dating the passage of the Public Information Act, the Subcommittee believes the NLRB has made every reasonable and good faith effort to make available to the bar the opinions and orders which it may rely upon as precedent in subsequent cases.

IV. REGIONAL ADVICE BRANCH

The Subcommittee noted that there exists a practice for ex parte hearings to be granted in Washington, D.C., in connection with cases pending on advice, as well as with regard to cases involving appeals from Regional Director determinations not to issue complaint. Noting that the NLRB recently reflected the appeals practice by amendments to the Board's Rules and Regulations (Sec. 102.19). no extant provisions outline the "right" to such hearings in connection with cases submitted for advice. In addition, the Subcommittee noted that the bar, generally, is unfamiliar with the general fact that an “advice” hearings practice exists, and that without any regulation or procedure available to the public at large it is difficult, and in some cases impossible, to determine when, or whether a case is still pending in the Regional Office or whether it has been transferred to the Advice Branch for consideration.

The General Counsel's representative stated that the functions of the Advice Branch, as well as other branches of the agency, were made the subject of general description in the published General Counsel's Quarterly Report on Case Developments. During the course of our January 26th meeting, copies of the January 26, 1968 Quarterly Report of the General Counsel were distributed to members of the Subcommittee and this particular report dealt with the functions of the Regional Advice Branch. It was pointed out that the policy, as stated in that report, requires the General Counsel to give notice and an opportunity to be heard to all parties whenever an informal, ex parte hearing is granted to one party. In response to the specific questions of the Subcommittee, the General Counsel's representatives stated that any party involved in a case under investigation was entitled to be apprised by the Regional Office whether the case was still in the Regional Office or whether it had been transmitted to Washington for "advice."

In view of the foregoing, while it may be desirable to "codify" the Advice Branch's ex parte hearings practice in the Board's Rules and Regulations, in view of the recent publication by the General Counsel of the Quarterly Report dealing with Advice Branch functions, and the representation that any party to a pending case is entitled, as a matter of right, to be advised whether his case is pending in Washington on advice, this Subcommittee does not believe any specific remedial recommendation need be made at this time.

V. AVAILABILITY OF DECISIONS AND REGULATIONS

The Subcommittee inquired with respect to the delay between the issuance of Board decisions and their publication in bound volumes. The Subcommittee also inquired whether the revisions to the Board's Rules and Regulations could be promulgated in loose leaf or similar form in order to facilitate the orderly substitution and incorporation of changes.

Representatives of the NLRB sympathetically responded but noted that while delay is unfortunate, it is the consequence of fiscal limitations. Although the Board is currently issuing cases in Volume 169, funds have been committed for publishing the bound reports only through Volume 162, and no funds are currently available for subsequent volumes.

With respect to the revised Rules and Regulations incorporating prior changes, again because of fiscal limitations, there was no way to indicate a date by which a new volume could be promulgated. The Board did note with interest the

Subcommittee's suggestion that it explore the possibility of issuing revisions in loose leaf or similar form.

VI. TRIAL EXAMINER'S DIVISION

The discussion with respect to the Trial Examiners' Division focused particularly upon the Subcommittee's inquiry whether there was in existence a manual or other documents establishing procedures or involving substantive law. Chief Trial Examiner Bokat stated there was a Trial Examiner's manual covering such matters as practice, procedure, and evidence in unfair labor practice cases, but that this material was considered confidential and not for publication.

The discussion regarding the Trial Examiners' Division was a particularly difficult one for the Subcommittee primarily because of the complete lack of disclosure which heretofore had existed with respect to the Division's operations. While the practitioner knows that Trial Examiners read from and refer to specific instructions in the opening and closing portions of hearings, beyond that it is not known whether standardized instructions regarding the handling of cases, ruling on motions, the policy, if any, in connection with the receipt or rejection of evidence in particularly classes of cases, etc., are reflected in memoranda, instructions, or other documents which would fall within the intent and coverage of the Public Information Act. The Trial Examiner's representative asserted that the Trial Examiner's Manual was believed to be equivalent to a legal memorandum which a judge might have to assist him in a pending case and that, as to such memoranda, they are commonly not made available to the parties, much less to the public. The Subcommittee, in response, noted that the Public Information Act is not applicable to functions of the judiciary but is applicable to administrative proceedings and that, as such, if any manuals or directives contain rules of practice or substance which are of general application, these materials should be made available to the public. For example, the Subcommittee expressed the view that the present instruction that Trial Examiners are required to follow decisions of the Board was the type of instruction which technically falls within the publication requirements of the Public Information Act.

In this regard the Subcommittee noted that the Public Information Act does not prohibit an agency from making full and complete disclosure of everything it does, and that the spirit embodied in the Act is to reverse the pre-existing policy of nondisclosure. It was the Subcommittee's view that while the NLRB might be entitled to withhold certain materials under one of the nine exemptions, if there was no sound reason for nondisclosure the NLRB should, in accordance with the spirit of the Act, lean in favor of disclosure.

Representatives of the NLRB indicated complete accord with the foregoing expression of legislative intent and indicated that the Board would consider all of its materials with an eye toward fuller disclosure and publication. On the other hand, the NLRB reflected a concern lest some of its documents (which are in the nature of tentative opinions and interpretations) be construed by the public as precedential pronouncements with the binding force of law. To this extent, therefore, the question of disclosure would have to be tempered by considerations of practicality and with an eye toward the minimization of adverse consequences.

Subsequent to the meeting, in response to the Subcommitee's request that the Trial Examiners' Manual be disclosed and that the subject matter thereof be indexed, the NLRB stated that a study would be undertaken to determine whether it is feasible to disclose all or part of the Trial Examiners' Manual. It was also stated that if such study leads to the conclusion that disclosure of the manual is impractical, the NLRB will then consider whether an index of the Trial Examiners' Manual might appropriately satisfy the public.

VII. LITIGATION MANUAL

In connection with this subject the Subcommitee suggested that the NLRB's Litigation Manual be made available to the public. While recognizing that the Manual is basically a research tool, its availabiilty would be of significant service to labor practitioners and there appears to be no countervailing detriment which the Board would incur by making it available at the cost of the party requesting it. In this regard the Subcommittee compared the value of the Litigation Manual with the three-volume publication of the Department of Labor containing inter

pretations and enforcement decisions, fully indexed, in connection with Titles I through VI of the Labor-Management Reporting and Disclosure Act of 1959, and the provisions covering the Welfare and Pension Plans Disclosure Act. Representatives of the Board indicated they would consider this matter and, subsequent to the meeting, advised that while they do not reject the idea of making the Litigation Manual available, it is essentially an internal research tool which does not reflect official NLRB doctrine. Accordingly, the NLRB does not believe that the Litigation Manual is the kind of agency material which is required to be disclosed under the Public Information Act. Nevertheless, the NLRB has not rejected the Subcommittee's request and it will continue to consider whether to make the Litigation Manual available.

In response to the Subcommittee's inquiry whether there were in existence any policies or standardized procedures with respect to the types of nature of cases in which certiorari is or is not sought, it was unequivocally stated that the question of Supreme Court review is handled on a case-by-case basis and that no standardized instructions or interpretations cover this area.

VIII. CONCLUSION

At the time the full Committee met with representatives of the NLRB to review some general matters in connection with the Public Information Act, it appeared that the NLRB believed that, except for possible minor, inadvertent omissions it had completely published all of the material required under the Public Information Act. Since that meeting, as a result of the exchange of views in the frank, open dialogue occurring on January 26, 1968, the Subcommittee believes that the NLRB recognizes the legitimate need of the public to be given access to more of the documents relating to the NLRB's operations. It was the Subcommittee's impression that the NLRB recognizes the purpose and intent of the Public Informtaion Act in seeking to abolish "secret law" and to favor broader disclosure in general. In accordance with this legislative purpose, the Subcommittee believes that the NLRB will, in good faith, give serious consideration and continued review to the publication of new materials and revising existing publications.

In addition, it is anticipated that even as to those matters that the NLRB believes it is not required to disclose, serious consideration will be given to the full publication of the items requested, along with other matters and, in the absence of disclosure, to the publication of an index of unpublished material.

The Subcommittee wishes to express its appreciation to the representatives of both the NLRB and the Public Information Committee of the Administrative Law Section of the American Bar Association for the time and obvious preparation involved in meetings with this Subcommittee. It is our firm belief that the candid exchange of views and dialogue created during the course of the January 25th and 26th meetings was enlightening for all parties and that a continuation of such meetings would be conducive to unemotional, constructive accommodations between the Governmental agency's need for confidentiality of certain of its functions and the satisfaction of the public's need-to-know. Respectfully submitted.

ARTHUR M. SCHILLER,

Cochairman.

GEORGE J. Zazas,

Cochairman.

BERNARD F. ASHE, Member.
S. G. CLARK, Jr., Member.
EARLE K. SHAWE, Member.
GERALD TREANOR, Member.

FEBRUARY 1968.

[Reprinted from the Journal of Accountancy, April 1968]

TAXATION-How CAN THE FREEDOM OF INFORMATION ACT HELP ME IN MY TAX PRACTICE?

Perhaps you have asked yourself whether the new Freedom of Information law will be the open-sesame that will unlock from the deep recesses of the Internal Revenue Service a wealth of useful and heretofore secret information.

Practical Value? In response to this inquiry, I believe it is fair to say that the concept of the new law is excellent-full and fair disclosure by government

agencies but little new information is now available from the IRS which will have a significant, beneficial effect in daily tax practice. To be sure, as will be explained later, much "interesting" information is now available but it may not necessarily be "practical."

The Freedom of Information Act took effect on July 4, 1967. It amends the Administrative Procedure Act of 1946 and makes it incumbent upon all government agencies to disclose or make available certain information at their disposal, unless such information is specifically exempted by the statute. The natural and desirable objective of full and fair disclosure by U.S. agencies must be balanced by the equally important right of citizens to protection of confidential personal information provided government agencies in dealings with the public. Herein lies the dilemma: How to strike the proper balance between disclosure and nondisclosure?

One way in which the new law attempts to deal with this problem is by providing for judicial review where requested information is denied. The burden is on the agency involved to justify its reasons for denial.

Exemptions From Disclosure.-Certain information which because of its confidential nature is exempt from disclosure. Specifically exempt from disclosure are matters falling into the following nine categories:

1. Specifically required by Executive Order to be kept secret in the interest of the national defense or foreign policy.

2. Related solely to the internal personnel rules and practices of any agency. 3. Specifically exempted from disclosure by statute.

4. Trade secrets and commercial or financial information obtained from any person and privileged or confidential.

5. Inter-agency or intra-agency memorandums or letters which would not be available by law to a private party 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 files compiled for law enforcement purposes except to the extent available by law to a private party.

8. Contained in or related to examination, operating, or condition reports prepared by, on behalf of, or for the use of any agency responsible for the regulation or supervision of financial institutions.

9. Geological and geophysical information and data (including maps) concerning wells.

Procedures for Obtaining Information.-The Act provides for three methods of disseminating information to the public:

1. Publication in the Federal Register-publication of matters of organization, procedure and generally applicable rules and regulations.

2. Public Inspection and Copying-information concerning final opinions and orders made in the adjudication of cases, statements of policy adopted by the agency but not published in the Federal Register, and administrative staff manuals and instructions that affect members of the public. The Act provides that each agency provide an index of all such matters adopted after July 4, 1967.

3. Specific Request for Records-in the event that the information has not been published or made available for inspection, the Act provides that upon request by any person for an identifiable record, it will be made available, unless exempted.

IRS Compliance With Procedures. To reflect the changes required by the new Act, the Internal Revenue Service issued regulations on July 1, 1967. These regulations describe the information now available and the methods for obtaining it. It appears that the requirements of publication in the Federal Register (Method 1 above) have been met by the Service and no major changes of procedure are likely to occur in this area.

Method 2 provides that facilities for public inspection and copying be made available. To comply with this requirement, the Service has established public reading rooms at the National Office and in each of its regional offices. (A report on a visit to one of the regional reading rooms appears on this page). Copying facilities are also available at each of these offices. Where a person is unable or unwilling to visit a reading room, arrangements may be made to make the requested reading room material available at any IRS office, if that is feasible. In lieu of this, requests for copying reading room material and transmittal by mail will be filled by IRS upon payment of prescribed fees.

Method 3 for obtaining information is by specific request. The new regulations state that the request may be filed at any IRS office, must be in writing and should provide adequate identification of the record desired. Identification will 92-089 0-68—17