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STRANG v. COLLYER

March 31, 1989

ALAN P. STRANG, Plaintiff,
v.
ROSEMARY COLLYER, Defendant


Stanley Sporkin, United States District Judge.


The opinion of the court was delivered by: SPORKIN

STANLEY SPORKIN, UNITED STATES DISTRICT JUDGE.

 Plaintiff, Alan P. Strang, filed this claim for declaratory judgment and injunctive relief under the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552. Defendant, Rosemary Collyer, is the General Counsel of the NLRB.

 On October 22, 1985, in a separate proceeding, plaintiff filed an unfair labor practice charge with the National Labor Relations Board ("NLRB"). In that proceeding plaintiff alleged that defendant failed, for an unreasonable period of time, to dismiss the unfair labor practice charge or to issue the appropriate complaint. *fn1" Plaintiff alleges that defendant has taken positions adverse to plaintiff's unfair labor charge and that such adverse positions were taken in the case of Communications Workers Union v. Beck, 776 F.2d 1187 (4th Cir. 1985) cert. granted, 479 U.S. 1004, 107 S. Ct. 641, 93 L. Ed. 2d 698 (1987), in which the defendant stated her position in an amicus brief. Plaintiff contends that defendant holds conflicting positions as prosecutor under 153(d) of the National Labor Relations Act, 29 U.S.C. § 153(d), and as "counsel" making policy determinations for NLRB.

 Plaintiff filed an initial request with the NLRB seeking all notes, documents, memoranda, reports, transcripts, correspondence and any other tangible materials relating to the General Counsel's position in the amicus brief in CWA v. Beck. Plaintiff contends that this information is necessary in order to determine: (1) the procedures employed in defendant's evaluation of plaintiff's NLRB action; (2) whether the dual and potentially conflicting roles of defendant may have had an adverse impact upon and caused the protracted delay in the NLRB case; and (3) whether the positions taken by defendant in plaintiff's case were accurately stated.

 On March 10, 1987, NLRB denied the FOIA request. The denial was based on the agency's finding that all the documents requested were exempt from disclosure because they embody the deliberative and consultative process privilege under 5 U.S.C. § 552(b)(5). Further, the agency found that some of those same documents were also exempt as attorney work product, 5 U.S.C. § 552(b)(5), and as records compiled for law enforcement purposes, 5 U.S.C. § 552(b)(7)(A). *fn2"

 A subsequent appeal to the Director of the Office of Appeals for the General Counsel was denied. As a result, plaintiff filed this complaint under FOIA. Plaintiff initially contended that he was unable to discern the applicability of the claimed exemptions to the records which he requested. Accordingly, he requested an index under Vaughn v. Rosen, 157 U.S. App. D.C. 340, 484 F.2d 820 (D.C. Cir. 1973), cert. denied, 415 U.S. 977, 39 L. Ed. 2d 873, 94 S. Ct. 1564 (1974). Pursuant to a stipulation entered into at a November 4, 1987, status conference before this Court, defendant has produced the requested Vaughn Index. Plaintiff also requests that this court order defendant to permit him access to all the requested records and award plaintiff costs and reasonable attorneys' fees in this action.

 This matter is now before the Court on Defendant's Motion for Summary Judgment. Plaintiff points out that he does not seek production of documents. He asks only that the Vaughn Index be modified to provide details of sufficient specificity to overcome the defendant's burden of demonstrating the applicability of the exemptions invoked.

 Plaintiff opposes the Motion for Summary Judgment on the grounds that there are material facts in dispute. Upon review of the record in this case, I find that there are no material facts in dispute and that the Vaughn Index supplied is sufficiently specific to overcome the defendant's burden of demonstrating the applicability of the claimed exemptions.

 DISCUSSION

 The purpose of FOIA Exemption 5, which includes exemptions for both deliberative process and work product, is to facilitate "'frank discussion of legal or policy matters' in writing [which] might be inhibited if the discussion were made public." NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 150, 44 L. Ed. 2d 29, 95 S. Ct. 1504 (1975) (quoting S. Rep. No. 813, 89th Cong., 1st Sess. 3, p. 9 (1965)). Congress feared that if such discussions were made public, the decisions and policies formulated would be poorer as a result. In light of the purpose of the privilege, a determination should be made as to whether the information sought is one that would injure the quality of agency decisions, and therefore would fall within the scope of the privilege.

 Exemption 5 The Deliberative Process Privilege

 In Paisley v. C.I.A., 229 U.S. App. D.C. 372, 712 F.2d 686 (D.C. Cir. 1983), the Court of Appeals articulated two requirements for the Deliberative Process Privilege. The requirements are: (1) that the "documents must be 'pre-decisional,' i.e. they must be generated 'antecedent to the adoption of agency policy'" id. at 698 (quoting Jordan v. U.S. Dep't of Justice, 192 U.S. App. D.C. 144, 591 F.2d 753, 774 (D.C. Cir. 1978)), and (2) the documents must be 'deliberative' in nature, reflecting the 'give and take' of the deliberative process and containing opinions, recommendations, or advice about agency policies." Paisley, 712 F.2d at 698 (emphasis added).

 In order for a court to find a document pre-decisional, the Court must be "able to pinpoint an agency decision or policy to which the document contributed. The agency bears the burden of establishing the character of the decision, the deliberative process involved, and ...


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