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Administrative Law Keyed to Popper
National Labor Relations Board v. Sears, Roebuck & Co.
Citation:
421 U.S. 132 (1975)Facts
The NLRB’s General Counsel has unreviewable authority to determine whether to file unfair labor practice complaints based on charges filed by private parties. When a charge is filed with a Regional Director, the Regional Director may either decide independently or seek guidance from the General Counsel’s Advice Branch. If the Regional Director decides not to issue a complaint, the charging party may appeal to the General Counsel’s Office of Appeals. Both the Advice Branch and the Office of Appeals generate memoranda explaining their decisions. Sears requested disclosure of these memoranda related to specific labor law issues. The General Counsel initially refused disclosure, later offering to disclose some memoranda with certain deletions. Sears pursued its lawsuit, arguing that these memoranda constituted “final opinions” or “instructions to staff that affect a member of the public” that must be disclosed under FOIA. The NLRB contended that the memoranda were exempt as internal agency communications protected by Exemption 5 and as investigatory files under Exemption 7.
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