Robbins Tire and Rubber Company, Plaintiff-appellee, v. National Labor Relations Board, Defendant-appellant, 563 F.2d 724 (5th Cir. 1977)

This is a Freedom of Information Act (FOIA)¹  case, although it takes on the troubling coloration of a dispute about the discovery rights of respondents in National Labor Relations Board proceedings. The district court²  ordered the NLRB to turn over to Robbins Tire copies of all written statements of those who will be called to testify³  in a consolidated representation and unfair labor practice proceeding involving that company. The order required that these documents be transmitted "on or before April 22, 1976, or, at the election of the Board, on or before a date which is at least five days prior to any hearing where the person making the statement or affidavit will be called as a witness."⁴  A panel of this court has denied the Board's motion for a stay pending appeal, and the NLRB hearing has been held in abeyance for over a year pending the outcome of this appeal. We affirm.

First, there is a jurisdictional problem. The Board argues that the effect of the order to disclose statements of witnesses was to enjoin its proceeding against the company. It casts its argument as an exhaustion requirement, citing Myers v. Bethlehem Shipbuilding Corp., 303 U.S. 41, 58 S. Ct. 459, 82 L. Ed. 638 (1938), and asserting that Robbins Tire would suffer no irreparable injury if forced to challenge the Board's action afterwards on appeal, 29 U.S.C. §§ 160(e)-(f). See also Renegotiation Board v. Bannercraft Clothing Co., 415 U.S. 1, 94 S. Ct. 1028, 39 L. Ed. 2d 123 (1974); 51 St. John's L.Rev. 251, 254 n. 17 (1977). We need not decide whether or when a district court adjudicating a FOIA claim may enjoin ongoing or prospective NLRB proceedings in an effort to compel the disclosure required by the Act. In this case, the district court did not enjoin the hearing. The Board argues that this was the effect of its order. But whether or not an order constitutes an injunction is a question that does not turn on the subjective importance attached to it by the defendant and his resulting action in the circumstances. Like similar orders in the more conventional discovery context, this one gave the NLRB a choice. It could produce the statements, it could proceed without resort to the testimony of these particular affiants or it could forego the hearing. While the unpalatability of this choice might well form part of the rationale for finding a substantive exemption under FOIA,⁵  it cannot be transformed into a jurisdictional question by the Board's decision to hold its hearing in abeyance.

Exemption 7(A)

The Board asserts that the statements of prospective witnesses fall within exemption 7(A), which protects against disclosure of "investigatory records compiled for law enforcement purposes, but only to the extent that the production of such records would (A) interfere with enforcement proceedings, . . . ." 5 U.S.C. § 552(b) (7) (A). The issue here is whether pre-hearing disclosure of the contents of statements made by those prepared to testify in support of the Board's case would actually "interfere" with the Board's case. In Goodfriend Western Corp. v. Fuchs, 535 F.2d 145 (CA1) (per curiam), cert. denied, 429 U.S. 895, 97 S. Ct. 257, 50 L. Ed. 2d 178 (1976), the First Circuit has held that it would.

We think our answer can be found by ascertaining what Congress meant by "interfere," bearing in mind the dictum that FOIA was a comprehensive effort to publicize all agency action and that its exemptions are to be narrowly construed. Department of the Air Force v. Rose, 425 U.S. 352, 360-61, 96 S. Ct. 1592, 48 L. Ed. 2d 11, 21 (1976). As Judge Oakes explained in the leading case of Title Guarantee Co. v. NLRB, 534 F.2d 484 (CA2), cert. denied, 429 U.S. 834, 97 S. Ct. 98, 50 L. Ed. 2d 99 (1976),⁶  this language was the result of a change offered by Senator Hart to the 1974 amendments to the FOIA after the bill had been reported out of committee. The purpose of Senator Hart's proposal was to restore the original intent of FOIA to require the agency to make a particularized showing that an investigatory file's disclosure would harm its case in court. "(I)t is only relevant to make (the exemption 7(A)) determination," Senator Hart emphasized, "in the context of the particular enforcement proceeding."⁷  By making this change, Congress sought to eliminate unfounded judicial notions that a document's mere status as investigatory and enforcement-related would be sufficient to justify nondisclosure. Thus, the legislative history of exemption 7(A) reveals a sort of procedural emphasis.⁸  Such an emphasis is strongly supplemented by the tenor of the 1974 amendments even before Senator Hart's change. As Senator Kennedy, the principal author and floor leader of the amendments, remarked, "With the new provisions it should be clear that there can be no blanket claim of confidentiality under any of the exemptions." Source Book 293.

We move next to the more substantive inquiry of what kind of interference Congress was concerned about avoiding in each particular case. Our only real clue lies in the remarks of Senator Hart:

(Exemption 7(A)) would apply whenever the Government's case in court . . . would be harmed by the premature release of evidence or information not in the possession of known or potential defendants. This would apply also where the agency could show that the disclosure of the information would substantially harm such proceedings by impeding any necessary investigation before the proceeding.

Source Book 333.⁹ 

The first sentence here suggests that the concern was with interference in the rather broad sense of premature revelation. Support for this idea can be found in Senator Hart's earlier statement that he wanted to return to the purpose revealed in the legislative history of the 1966 Act. This purpose was "to prevent harm to the Government's case in court by not allowing an opposing litigant earlier or greater access to investigatory files than he would otherwise have." Source Book 332, quoting from H.R.Rep. No. 1497, 89th Cong., 2d Sess. (1966), reprinted in (1966) U.S. Code Cong. & Admin.News pp. 2418, 2428. If this is what interference means, then we would be obliged to give an FOIA plaintiff-as-public-citizen no more information than he would obtain as a private litigant engaging in discovery before the agency. In Title Guarantee, for example, Judge Oakes began his analysis by observing that disclosure "would be tantamount to the issuance of new, broader discovery rules for NLRB proceedings," given Second Circuit limitations on the duty of the Board to grant pretrial discovery. 534 F.2d at 487. However, we think that comparative discovery is not the key to the meaning of exemption 7(A).

First, it is questionable whether FOIA disclosure would result in an increase in discovery rights in this court.¹⁰  Although the Second Circuit has held that the National Labor Relations Act does not specifically authorize or require the Board to adopt discovery procedures,¹¹  this court, emphasizing the authority of 29 U.S.C. § 160(b),¹²  has held that "when good cause is shown to the Board it should permit discovery in order that the rights of all parties may be properly protected." NLRB v. Rex Disposables,494 F.2d 588, 592 (CA5, 1974), citing NLRB v. Safway Steel Scaffolds Co.,383 F.2d 273 (CA5, 1967), cert. denied, 390 U.S. 955, 88 S. Ct. 1052, 19 L. Ed. 2d 1150 (1968); NLRB v. Miami Coca-Cola Bottling Co., 403 F.2d 994 (CA5, 1968); cf. NLRB v. W. R. Bean & Son, Inc., 450 F.2d 93, 96 (CA5, 1971), cert. denied, 409 U.S. 849, 93 S. Ct. 57, 34 L. Ed. 2d 91 (1972) (Safway Steel and Miami Coca-Cola place question within discretion of administrative law judge).¹³  We have also held more specifically that statements of Board witnesses are discoverable in civil contempt proceedings that the Board brings to challenge noncompliance with appellate court decrees. NLRB v. Schill Steel Products, Inc., 408 F.2d 803 (CA5, 1969).¹⁴  We conclude from these authorities that, with respect to the statements of prospective witnesses, some right to discovery exists under the National Labor Relations Act.¹⁵  Thus, we cannot agree with the Board's assertion that disclosure of witnesses' statements would inevitably interfere with enforcement proceedings even in the sense that it would always allow litigants greater discovery than they otherwise would obtain.

Second, focusing on comparative discovery rights, even if it gave us a clearer answer, would violate the spirit of the procedural reform sought by the Hart amendment. The change, as we have noted above, sought to require a showing that some "specific harm might result to (the government's) case from disclosure," Deering Milliken, Inc. v. Irving, 548 F.2d 1131, 1135 (CA4, 1977). If the mere fact that one could not have obtained the document in private discovery were enough, the Board would have made naught of the requirement that nondisclosure be permitted "only to the extent that . . . production . . . would . . . interfere" in some way. We must interpret the exemption to give meaning to this requirement.

Finally, tying FOIA rights to the discovery rights of the particular plaintiff presents us with a legal conundrum that suggests the improbability of such a congressional intent. In order to apply the comparative discovery test, we must look to the particular needs of the plaintiff (in order to see whether he has shown good cause for production). But the Act mandates release of information "to any person." 5 U.S.C. § 552(a) (3). For this reason, anyone's case is as strong (or as weak) as anyone else's. See NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 143 n. 10, 95 S. Ct. 1504, 1513, 44 L. Ed. 2d 29, 43 n. 10 (1975): "(Plaintiff's) rights under (FOIA) are neither increased nor decreased by reason of the fact that it claims an interest in the (documents sought) greater than that shared by the average member of the public." Thus, to hold that certain groups members of the news media, for example are the real beneficiaries of FOIA is to create a pecking order unjustified by the language of the statute.¹⁶  "(A)ll citizens have a right to know" what their government is doing. S.Rep.No. 813, 85th Cong., 1st Sess. 6 (1965).¹⁷ 

In sum, we reject "earlier or greater access" as a kind of interference protected against by exemption 7(A). We think that the protection against interference involves a focus not on the rights of the individual FOIA plaintiff but rather on the problems posed to the particular agency proceeding. We thus proceed to an examination of the possible harms that could befall Board proceedings by pretrial disclosure of witnesses' statements.¹⁸  Indeed, a precise reading of Title Guarantee reveals that this was the approach taken there. Although, as we have noted, Judge Oakes referred to the expansion of discovery rights, his finding of exemption arose not from the mere conclusion that such rights would otherwise be expanded but from the doubt that Congress intended to so expand them in view of a (judicially perceived) likelihood for interference in the proceedings that might result:

We cannot envisage that Congress intended to overrule the line of cases dealing with labor board discovery in pending enforcement proceedings by virtue of a back-door amendment to the FOIA when it could very easily have done so by direct amendment to Section 10(b) of the National Labor Relations Act, 29 U.S.C. § 160(b), or by a blanket enactment pertaining to discovery in pending administrative enforcement proceedings. It is significant that it is never suggested in the legislative history of the 1974 amendment to the FOIA that any such modification of agency discovery rules was intended. . . . In light of the delicate relationship which exists between employer and employee, we think that Congress would be very reluctant to change the rather carefully arrived at limitations and procedures for discovery in unfair labor practice proceedings by way of an act which, while dealing with disclosure generally, does not purport to affect such discovery.

534 F.2d at 491-92 (footnotes omitted). Senator Hart's second sentence in his aforementioned explanation of what he meant by interference (a diminished ability to collect investigatory information) suggests a similar judicial inquiry into the precise nature of the harm to the agency's case.¹⁹ 

As we have noted, Title Guarantee involved a request for copies of all statements, without regard to whether the affiants would be called to testify. Part of the rationale for denying the right to disclosure was "the delicate relationship which exists between employer and employee."²⁰  See also Roger J. Au & Son, Inc. v. NLRB, 538 F.2d 80, 83 (CA3, 1976) ("peculiar character of labor litigation"); Climax Molybdenum Co. v. NLRB, 539 F.2d 63, 65 (CA10, 1976) ("relationship between employer and employee is a delicate one which calls for limitations on discovery"). There is inherent in this concern an assumption that the Board would be unable to obtain testimony from employees to aid in its prosecution if their statements would become the knowledge of their employer. Even discounting the problem that we do not know which of the affiants here are employees,²¹  this sweeping assumption of intimidation is inappropriate here, where the request is limited to statements of witnesses. As this court said in Schill Steel, "Informers who actually testify . . . surface automatically." 408 F.2d at 805.²²  As the First Circuit admitted in Goodfriend, "it may well be that (such) circumstances minimize the possible interference with the pending proceedings." 535 F.2d at 147.²³ 

In the present situation, there may be some risk of interference with Board proceedings in the form of witness intimidation from harassment of an employee-witness during the five days prior to the hearing,²⁴  done in an effort to silence him or dilute the nature of his testimony. Such harassment would constitute an unfair labor practice under 29 U.S.C. § 158(a) (4).²⁵  NLRB v. Scrivener, 405 U.S. 117, 92 S. Ct. 798, 31 L. Ed. 2d 79 (1972). Any attorney interrogation of the affiants extending beyond "that legitimately necessary for the preparation of respondent's defense" to the underlying unfair labor practice charge would run a risk of incurring section 8(a) (1) liability. See, e. g., NLRB v. Ambox, Inc., 357 F.2d 138, 141 (CA5, 1966); Texas Industries, Inc. v. NLRB, 336 F.2d 128, 132-34 (CA5, 1964); NLRB v. Hardeman Garment Corp., 557 F.2d 559, 563 n. 9, (CA6, 1977). Nevertheless, post hoc discipline does not necessarily dissipate the anxieties of those upon whom the intimidation may be visited. We understand the Board's position in this regard, dependent as it is upon charges initiated by others before it issues its complaints. See NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 138-39, 95 S. Ct. 1504, 1510-1511, 44 L. Ed. 2d 29, 40-41 (1975).²⁶ 

However, the Board has not introduced any evidence tending to show that this kind of intimidation (either to physical or employment security) is likely to occur during the five days between discovery and the Board hearing in this case. While we do not purport to establish an exclusive set of criteria for looking at this question, there are numerous factors that bear upon such an inquiry: whether the history of labor relations in the community and at the plant makes intimidation of these witnesses reasonably foreseeable; whether the witnesses work in jobs (with Robbins Tire or not) or have records of job performance that make intimidation of them a likely result of disclosure; the nature of the testimony which the unknown affiants are expected to give. See Temple-Eastex, Inc. v. NLRB, 410 F. Supp. 183 (E.D. Tex., 1976) (ordering disclosure of witness statements favorable to employer).²⁷  Instead, the Board has asserted that in every case the potential for intimidation is so great as to require nondisclosure of all statements and affidavits. This sort of per se approach to exemption 7(A) is inconsistent with the procedural reform effected by the Hart amendment. FOIA requires disclosure absent the agency's ability to prove²⁸  the applicability of exemption 7(A) in the context of the particular proceeding involved. We hold that the Board has not sustained its burden of proving that the possibility of intimidation in this case through disclosure to Robbins Tire brings exemption 7(A) into play.²⁹ 

Exemption 7(C)

Exemption 7(C) protects these statements and affidavits from disclosure only to the extent that production would "constitute an unwarranted invasion of personal privacy." 5 U.S.C. § 552(b) (7) (C). The district court rejected this claim since (1) Robbins Tire seeks disclosure only of statements taken from those scheduled to testify at the Board hearing and (2) the Board's own rules³⁰  allow disclosure of the statements after the direct examination of the witnesses at that hearing.

We agree. The Board concedes that there is nothing unusual in the nature of personal or family details in these affidavits that suggests the need for protection. See Title Guarantee, 534 F.2d at 489 n. 10 (dictum). In addition, as the district court noted, this is purely a matter of when the witnesses' statements are to be revealed, and there is therefore no privacy interest involved. "Disclosure of this same information is not an unwarranted invasion of the claimants' privacy simply because it occurs before the hearing." Deering Milliken, Inc. v. Irving, 548 F.2d 1131, 1136 (CA4, 1977). Accordingly, we need not engage in balancing privacy rights against the right of the public to be informed. Cf. Department of the Air Force v. Rose, 425 U.S. 352, 370-82 & n. 16, 96 S. Ct. 1592, 1603-1609 & n. 16, 48 L. Ed. 2d 11, 26-33 & n. 16 (1976) (exemption 6).

Exemption 7(D)

This exemption protects against disclosure that would "disclose the identity of a confidential source." 5 U.S.C. § 552(b) (7) (D). The Board asserts that section 10058.4 of its Case Handling Manual requires that the affiant "should be told the truth that the information would be used by us in ascertaining the total picture and that this would be its only use unless and until he might be called on to give information in the form of testimony at a formal hearing or in the unlikely event another agency made a valid request upon us for such information." We do not know whether this "express assurance" was given here, and we question how unconditional an assurance of confidentiality it is anyway. However, employee-employer context might in some situations provide "circumstances from which such an assurance could be reasonably inferred."³¹  Cf. Texas Industries, Inc. v. NLRB,336 F.2d 128, 134 (CA5, 1964) (importance of preserving confidentiality of employee statements). However, as the district court held, the Board's case under exemption 7(D) fails for the same reason that exemption 7(C) fails: all the statements sought here come from those who are scheduled to testify at trial anyway. If one's identity is certain to be disclosed, we cannot characterize him as one of the sources given either express or implied assurance of confidentiality.³² 

Exemption 5

Finally, the Board asserts that the statements and affidavits taken from prospective witnesses are protected from disclosure by exemption 5, which exempts "inter-agency or intra-agency memorandums or letters which would not be available by law to a party . . . in litigation with the agency." 5 U.S.C. § 552(b) (5). In contrast with its position on exemption 7(A), the Board has not met with much success with this argument. See Title Guarantee, 534 F.2d at 492-93 n. 15 (dictum); Deering Milliken, Inc. v. Irving, 548 F.2d 1131, 1138 (CA4, 1977); Marathon LeTourneau Co. v. NLRB, 414 F. Supp. 1074, 1080 (S.D. Miss., 1976).

Exemption 5, which unlike exemption 7 remained unchanged by the 1974 amendments, has been held to encompass the work-product privilege of Hickman v. Taylor, 329 U.S. 495, 67 S. Ct. 385, 91 L. Ed. 451 (1947). NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 154, 95 S. Ct. 1504, 1518, 44 L. Ed. 2d 29, 49 (1975); Kent Corp. v. NLRB, 530 F.2d 612, 618 (CA5), cert. denied, 429 U.S. 920, 97 S. Ct. 316, 50 L. Ed. 2d 287 (1976). The basic disagreement between the Board and Robbins Tire here is whether the distinction between "factual" and "deliberative" materials fashioned in EPA v. Mink, 410 U.S. 73, 87-88, 93 S. Ct. 827, 836, 35 L. Ed. 2d 119, 132 (1973), in connection with executive privilege was intended to be or can be extended to cases involving the work-product privilege. If in fact Congress meant to incorporate Hickman in all its complexity into exemption 5 as a sort of direct legal transplant, the witness statements in this case would be exempt from disclosure, for Hickman protected even relevant and non-privileged witness statements unless production "is essential to the preparation of one's case." 329 U.S. at 511, 67 S. Ct. at 394, 91 L. Ed. 2d at 462. Since as we have noted FOIA prohibits looking at the needs of the particular plaintiff in ruling on the applicability of the exemptions, such statements would not "normally" or "routinely" be disclosed in private litigation. Sears, 421 U.S. at 149 & n. 16, 95 S. Ct. at 1515 & n. 16, 44 L. Ed. 2d at 46 & n. 16, citing H.R.Rep.No. 1497, 89th Cong., 2d Sess. 10 (1966). On the other hand, if Hickman as applied to exemption 5 does not protect factual materials, these statements would have to be disclosed. They constitute purely factual testimony regarding events at the plant.

We think that the Hickman privilege as read into exemption 5, like the executive privilege, must be applied consistently with Congress' intent to protect only against disclosure of governmental policymaking processes.³³  The general concern surrounding exemption 5 was to guard against stifling flexibility of viewpoints before agencies arrive at final institutional decisions. As the House Report noted, the exemption was a response to testimony from agency witnesses

that a full and frank exchange of opinions would be impossible if all internal communications were made public. They contended, and with merit, that advice from staff assistants and the exchange of ideas among agency personnel would not be completely frank if they were forced to "operate in a fishbowl."

H.R.Rep.No. 1497, 89th Cong., 2d Sess. (1966), reprinted in (1966) U.S.Code Cong. & Admin.News, pp. 2418, 2427.³⁴  Since the purpose of exemption 5 was to protect agency deliberative processes, purely factual material such as verbatim witness statements must not fall within it, whether the agency urges upon us the executive or the work-product privilege. See Deering Milliken, Inc. v. Irving, 548 F.2d 1131, 1138 (CA4, 1977).

While the Mink Court spoke in the more conventional exemption 5 context of an assertion of executive privilege, we do not interpret its discussion to be restricted to that context. The Court described in some detail the difficult language as well as the legislative history of exemption 5. While noting the problems involved in applying discovery analogies without inquiring as to individual need,³⁵  the Court observed that one thing about exemption 5 was certain: "Congress intended to incorporate generally the recognized rule that 'confidential intra-agency advisory opinions . . . are privileged from inspection.' " 410 U.S. at 86, 93 S. Ct. at 836, 35 L. Ed. 2d at 132.³⁶  Justice White supported this position by citing the House and Senate reports to which we have referred. He then articulated the deliberative-factual distinction, and in doing so cited cases such as Soucie v. David, 448 F.2d 1067 (CADC, 1971). Soucie was not confined to the executive privilege context; there the D. C. Circuit was promulgating broad guidelines for the handling of the exemption 5 issue on remand. See also Bristol-Myers Co. v. FTC, 424 F.2d 935 (CADC), cert. denied, 400 U.S. 824, 91 S. Ct. 46, 27 L. Ed. 2d 52 (1970) (cited in Mink) . Finally, Justice White explained that the first version of exemption 5 had definitively exempted only "memorandums or letters dealing solely with matters of law and policy."³⁷  The only reason for the change in final wording was not to weaken this deliberative-factual distinction but to assure that factual material inextricably intertwined with deliberative material would also be exempt. Mink, 410 U.S. at 90-91, 93 S. Ct. at 837, 35 L. Ed. 2d at 134. Mink's extensive analysis of exemption 5 as a whole shows that the case should properly be read as an exemption 5 case, not simply an executive privilege case. It paints with a broad brush, like other decisions both before and after it. See, e. g., National Courier Association v. Board of Governors, 516 F.2d 1229, 1242 (CADC, 1975); Schwartz v. IRS,511 F.2d 1303, 1305 (CADC, 1975); Tennessean Newspapers, Inc. v. FHA, 464 F.2d 657, 660 (CA6, 1972); Soucie, supra; GSA v. Benson, 415 F.2d 878 (CA9, 1969). This court has described exemption 5 in the following way:

The "Memorandum" Exception

. . . Whatever may be the scope of this exception, with its cryptic limiting phrase "which would not be available by law to a party other than an agency in litigation" . . . we think it would be a perversion of the Act to classify the materials sought in this case (OSHA training manuals) as within this provision which is designed to encourage the free exchange of ideas among government policy-makers. It was not defined as an exception to compelled disclosure in order to authorize an agency to throw a protective blanket over any type of information it might choose by the expedient of casting it in the form of an internal memorandum. Bristol Myers Co. v. F.T.C., 424 F.2d 935 (D.C. Cir.), cert. denied, 400 U.S. 284, 91 S. Ct. 46, 27 L. Ed. 2d 52 (1970). Substance not form determines is availability by the public. . . . The subject manual is an impersonal, mass-produced statement of established policy designed to be utilized as an educational and reference tool, not for policy-making or deliberative purposes. If this material be a "memorandum" then the term would cover virtually all government documents of any description or nature. Such an interpretation would be at war not only with the plain meaning of the word but also with the spirit and purpose of the Act. Whatever the ultimate scope of this "memorandum" exception may be, we are confident that these materials would remain without its reach.

Stokes v. Brennan, 476 F.2d 699, 703-04 (CA5, 1973). There is no suggestion here that the factual-deliberative distinction only defines the scope of the executive privilege. It is inherent in the purpose of exemption 5.

Indeed, we suggested the answer to this case in Kent Corp. v. NLRB, 530 F.2d 612, 623-24 (CA5), cert. denied, 429 U.S. 920, 97 S. Ct. 316, 50 L. Ed. 2d 287 (1976), in which we held protected under exemption 5 "final investigation reports" prepared by NLRB staff members. These reports summarized the evidence of unfair labor practices (gained by witness interviews such as those actually requested here) and recommended dispositions as to the various charges. Discussing the work-product privilege and Hickman, we held that even the factual information contained in these reports was protected. But our approach emphasized the deliberative nature of the report process into which these facts were integrated and contrasted these documents with the precise sort of "primary information" that is involved in this case:

In our view, even the factual matters in these reports (which might not be protected by executive privilege) are protected by the work-product privilege. Writing in contemplation of forthcoming unfair labor practice litigation, an attorney must be able not only to discuss doctrinal theories but also to "assemble information, (and) sift what he considers to be the relevant from the irrelevant facts" without feeling that he is working for his adversary at the same time. Hickman v. Taylor, 329 U.S. at 511, 67 S. Ct. at 393, 91 L. Ed. at 462. The feeling would be well justified if we allowed the FOIA to be used to force disclosure of such materials.

This case is a particularly strong one for recognizing the privilege. The contents of the reports are not primary information, such as verbatim witness testimony or objective data, but rather are mainly reports on how the Birmingham attorneys appraised the evidence they found. Thus the reports consist largely of "mental impressions, conclusions, opinions, (and) legal theories" within the meaning of the Federal Rule. Such materials, if prepared in anticipation of litigation or for trial, are always protected by a properly-raised claim of work product privilege, regardless of the opposing litigant's need.

530 F.2d at 624 (emphasis added).

Mink, Stokes, and Kent all admit the difficulties involved in administering a statutory standard that ordinarily turns on individual need but prohibits courts from assessing such factors in the FOIA context. See note 17, supra. Whether as in Stokes we resolve the problem by focusing on the word "memorandum" and concluding that factual witness statements are not encompassed within that term,³⁸  or whether we conclude that in constructing its exemption 5 discovery analogy Congress had no inkling of the ramifications of the qualified part of the Hickman privilege,³⁹  we cannot reconcile withholding these statements with exemption 5's narrow policy of safeguarding the thought processes of the agency as an institutional thinker.

The Board has failed to sustain its statutory burden of proof as to exemptions 7(A), 7(C), 7(D), and 5. The district court's order compelling disclosure is affirmed.

AFFIRMED.