Washington Law Review


Greg Adams


Sears, Roebuck and Company brought an action under the Freedom of Information Act (FOIA) to compel disclosure of Advice and Appeals Memoranda issued by the General Counsel of the National Labor Relations Board. In ordering disclosure of both sets of documents, the district court held that Advice Memoranda qualified under the Act as "'instructions' [to staff] which affect a member of the public," but that Appeals Memoranda were "final opinions" which did not fall within the Act's exemption for "intra-agency memoranda." The Court of Appeals for the District of Columbia affirmed without opinion. In another case requiring interpretation of the FOIA, Grumman Aircraft Engineering Corporation brought suit in the same court, seeking regional board reports and division reports of the Renegotiation Board. The district court ordered disclosure of the reports as "final opinions." The Court of Appeals for the District of Columbia affirmed. On appeal to the United States Supreme Court the cases were consolidated. Held: (1) Advice and Appeals Memoranda prepared by the General Counsel of the NLRB directing dismissal of charges of unfair labor practices are final opinions disclosable under the FOIA; and (2) neither Advice and Appeals Memoranda which direct filing of complaints nor regional board and division reports of the Renegotiation Board are final opinions of an agency within the meaning of the FOIA, but instead are exempt from disclosure as predecisional intraagency memoranda. NLRB v. Sears, Roebuck & Co., 421 U.S. 132 (1975); Renegotiation Board v. Grumman Aircraft Engineering Corp., 421 U.S. 168 (1975). As this note will demonstrate, the Sears and Grumman decisions thwart congressional intent by restricting disclosure under the FOIA. The effect of the Supreme Court analysis is to narrow the concept of finality under the FOIA and, at the same time, to expand the applicability of the exemption for intra-agency memoranda. The Court's approach unnecessarily compromises the public's need to know the working law of administrative agencies, thereby blunting the force of the FOIA disclosure requirements. It is submitted that the purposes of the FOIA would have been served more faithfully had the Court adopted a policy of in camera review of agency documents, allowing selective deletion of exempt material, rather than permitting blanket protection for such documents.

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