In National Labor Relations Board v. Sears, Robuck and Company (421 U.S. 132 (1975)), Sears filed a Freedom of Information Act (FOIA) request for information from NLRB about how they made decisions about pursuing unfair labor practice complaints. NLRB claimed that they were exempt under FOIA §552(b)(5) because the requested information was an “intra-agency memorandum.” The US Supreme Court ordered the documents released.

  • The US Supreme Court looked at the §552(b)(5) (“inter/intra-agency memorandum”) exemption and decided that it should be read to protect documents that would not be “available to a party in litigation.”
    • That means things that are privileged. Like executive privilege, attorney-client privilege, or attorney work-product.
  • Therefore, documents that are used as the basis for filing an unfair labor practice charge would be considered privileged as attorney-work product and thus meet the §552(b)(5) exception.
    • This is true even after the decision is made.
      • Unless the document is incorporated by reference in the Agency’s final, public decision.
    • However, documents that reach the conclusion that no complaint should be filed are not protected, because they are no longer needed for litigation purposes (since no litigation is going to happen).