National Labor Relations Board v. Sears, Roebuck & Co.

Background

The dispute involved Sears, a company, and the National Labor Relations Board (NLRB) and its General Counsel. Sears asked under the Freedom of Information Act for two classes of internal memoranda — “Advice Memoranda” and “Appeals Memoranda” — and related documents used when the General Counsel decided whether to file unfair labor practice complaints. The General Counsel refused, citing internal‑memorandum and investigatory exemptions. A federal district court ordered broad disclosure; the court of appeals affirmed without opinion, and the Supreme Court agreed to decide how FOIA’s exemptions apply to these agency decision documents.

Reasoning

The Court explained how the Advice and Appeals branches work and stressed that the General Counsel has the power to decide whether a complaint will be filed. It drew a key distinction: memoranda that explain and effect a decision not to file a complaint are “final opinions” and must be disclosed under FOIA, because they represent the agency’s working law and final disposition. By contrast, memoranda that direct filing a complaint are prepared in contemplation of litigation, often contain legal theory and strategy, and are protected as intra‑agency communications and attorney work product under Exemption 5.

Real world impact

As a result, the NLRB must disclose Advice and Appeals memoranda that deny complaints, but may withhold memoranda that authorize litigation. The Court reversed parts of the lower-court order that would have forced the agency to create explanatory material and remanded questions about documents incorporated by reference for further review under the investigatory exemption. The ruling reshapes public access to how the NLRB explains enforcement choices.