Labor & Employment Law Daily Wrap Up, LABOR—D.D.C.: FOIA requester obtains partial success in suit against NLRB, (May 2, 2025)

By Nadine E. Roddy, J.D.

The court agreed to review an unredacted version of an ethics memorandum in camera.

In a suit against the National Labor Relations Board (Board) under the federal Freedom of Information Act (FOIA), the requesting party’s motion for the court’s review in camera of redacted portions of an Ethics Officer’s memorandum was granted by the federal district court in the District of Columbia. The record evidence, including the unredacted portion of the memorandum, did not by itself establish the exempt nature of the withheld information (Protect the Public’s Trust v. NLRB, No. 23-2084 (RBW) (D.D.C. Apr. 29, 2025)).

FOIA request. A nonprofit corporation dedicated to restoring public trust in government (nonprofit) brought a civil action against the Board under the FOIA. The nonprofit had sought records in the Board’s possession concerning the participation of two board members in matters currently before the Board that involved their former employers and/or clients.

Joint employer rule. Previously, on February 26, 2020 [during the first Trump administration], the Board promulgated a final rule establishing the standard for determining whether two employers are a “joint employer” under the National Labor Relations Act. Subsequently, on September 17, 2021 [during the Biden administration], the Service Employees International Union (Union) filed a complaint seeking to invalidate the final rule. Shortly thereafter, two board members sought guidance from the Board’s Designated Agency Ethics Officer (DAEO) on whether they needed to recuse themselves from participation in the Union lawsuit. In a detailed memorandum (the Ethics Memo), the DAEO concluded that neither board member was ethically prohibited from participation in the Board’s consideration of the Union lawsuit. On December 1, 2021, the nonprofit filed its FOIA request.

Redacted Ethics Memo. Five months later, the Board released to the nonprofit 43 pages of records—some in full, some in redacted form. Among those records was a redacted version of the Ethics Memo, along with a letter explaining the redactions made pursuant to FOIA exemptions. The nonprofit filed an administrative appeal, seeking an unredacted copy of the Ethics Memo. Following an adverse ruling, the nonprofit filed suit in the district court.

Before the court were the parties’ cross-motions for summary judgment. The nonprofit’s motion included a request for the court to review in camera an unredacted version of Ethics Memo.

Agency’s burden of proof. The court noted that in a FOIA action, the respondent agency has the burden of demonstrating that the withheld documents are exempt from disclosure, and the court reviews the matter de novo. The agency may meet its burden by: (1) filing affidavits describing the material withheld and the manner in which it falls within the exemption claimed; and (2) showing how release of the particular material would have the adverse consequence that the FOIA seeks to guard against. The court has discretion to examine the contents of agency records in camera, although this option should be exercised sparingly.

Exemption 5. In this case, the issue was whether the Board had properly withheld information contained in the Ethics Memo pursuant to FOIA Exemption 5 by invoking the attorney work-product privilege. To fall within Exemption 5, the document in question must be within the scope of a recognized privilege against discovery. The nonprofit argued that the Ethics Memo was created to address the two board members’ ethical requirements and to provide any additional protection from potential criminal conflict of interest liability; thus, it was not created in anticipation of litigation, as the privilege requires. The Board countered that the Ethics Memo was created specifically in response to the drafter’s belief that litigation regarding the recusal issue would likely ensue.

‘Because-of’ test. The court concluded that the Board had not sufficiently established that it properly withheld the contested portions of the Ethics Memo under the work product privilege and Exemption 5. To determine whether a particular document was prepared in anticipation of litigation, the District of Columbia Circuit employs a “because of” test, which asks “whether... the document can fairly be said to have been prepared or obtained because of the prospect of litigation.” In this case, the record showed that the document had been prepared, at least in part, because of the board members’ independent obligations to seek and receive ethical guidance relating to their participation in the Union lawsuit.

In camera review. However, because it appeared that reviewing an unredacted version of the Ethics Memo would aid in the court’s de novo determination of whether the redacted portions fell within the work-product privilege, and thus within Exemption 5, the court would conduct an in camera review of the unredacted document.

For these reasons, the court denied without prejudice the Board’s motion for summary judgment, granted in part and denied without prejudice in part the nonprofit’s motion for summary judgment, and directed the Board to submit the unredacted version of the Ethics Memo to the court for in camera review.

The case is No. 23-2084 (RBW).

Judge: Walton, R.

Attorneys: Karin Sweigart (Dhillon Law Group) for Protect the Public's Trust. Dawn Laura Goldstein for the NLRB.

Companies: Protect the Public's Trust

Cases: Labor Privacy Procedure PublicEmployees AgencyNews DistrictofColumbiaNews