The Court will first direct its attention to the motions concerning Count I of the plaintiff's complaint. The pertinent portion of the Freedom of Information Act upon which the plaintiff relies provides as follows: 66 .. (E) ach agency, on request for identifiable records made in accordance with published rules shall make the records promptly available to any person. (5 U.S.C. 552(a) (3)).” The above cited general directory is limited in application by several specific exemptions, one of which states: "This section does not apply to matters that are . . . investigatory files compiled for law enforcement purposes except to the extent available by law to a party other than an agency." (5 U.S.C. 552 (b) (7)). Naturally, the plaintiff urges that this exemption is not applicable in the instant action; however, the Court cannot agree. The plaintiff's position is that the exemption refers only to law enforcement of a criminal nature. The only Court to consider the question concluded that similar statements obtained by the Board were exempted by Section 552 (b) (7), Barceloneta Shoe Corp v. Compton,, 65 LRRM 3063 (1967). The Court must agree that the determination of the Court in Barceloneta is sound, though not controlling on this Court. In addition to the common sense necessity of protecting the investigatory function and procedures of the Board, the legislative history of the Act itself makes it clear that the exemption in question is not limited solely to criminal law enforcement but rather applies to law enforcement activities of all natures. Though the Court does not feel that it is necessary to reiterate an exhaustive documentation of the Act's legislative history, the following statement is exemplary of numerous others which make it clear that the plaintiff's interpretation must be rejected: "This exemption covers investigatory files related to enforcement of all kinds of laws, labor and securities laws as well as criminal laws. This would include files prepared in connection with related Government litigation and adjudicative proceedings. H.R. Report #1497, 89th Cong., 2nd Sess. p. 11." In sum, it is clear that the plaintiff could obtain the employees' statements taken by the Board if the employees had been called to testify-in fact, the plaintiff was given access to the statements of the employees who did so testify. However, the plaintiff is not entitled to employee statements absent such use. The opinion of the Fifth Circuit Court of Appeals in Texas Industries, Inc v. N.L.R.B., 336 F. 2d 128 (1964), though rendered prior to the enactment of the Freedom of Information Act, succinctly states of the reasoning behind the protection of employee statements: "It would seem axiomatic that if an employee knows his statements to Board agents will be freely discoverable by his employer, he will be less candid in his disclosures. The employee will be understandably reluctant to reveal information prejudicial to his employer when the employer can easily find out that he has done so . . In order to assure vindication of employee rights under the Act, it is essential that the Board be able to conduct effective investigations and secure supporting statements from employees. We feel that preserving the confidentiality of employee statements is conducive to this end." The Court is of the opinion that the plaintiff has placed unwarranted reliance on the Freedom of Information Act; the Court cannot accept the plaintiff's position that the Act opened for employers the Pandora's box of accessibility to employee statements given to the Board in furtherance of its investigatory function. Therefore, the plaintiff's request for an injunction ordering the production of the employee statements is denied. As noted previously, the plaintiff also seeks to enjoin the Board from proceeding with current representation proceedings at the plaintiff's job site. The plaintiff seeks to bring itself within the exception of Leedom v. Kyne, 358 U.S. 184 (1958), which held that District Courts have jurisdiction to issue injunctions in instances where the Board has acted in excess of its delegated powers and contrary to a specific prohibition of the National Labor Relations Act. The Court finds it unnecessary to delve into an extensive review of the merits of the plaintiff's case which is currenty pending before the Court of Appeals for determination. It is sufficient that, regardless of the correctness of the Board's determination, it has not acted contrary to a specific prohibition of the Act. Therefore, the Court is without jurisdiction to enjoin the Board's representative proceedings in the instant case and the defendant's motion to dismiss must be granted. IT IS SO ORDERED. This the 6th day of February, 1968. LEWIS R. MORGAN, United States District Judge. 4. Benson v. General Services Administration, civil action No. 7344, U.S. District Court for the Western District of Washington. Plaintiff sought appraisal reports and other GSA records regarding a transaction with GSA in which plaintiff had an interest. The court ordered disclosure of the records sought by plaintiff, but stayed the judgment pending final determination by the U.S. Court of Appeals for the ninth circuit. Order entered on February 26, 1968. The findings of fact and conclusions of law and the judgment of the court follow: U.S. DISTRICT COURT, Re Benson v. GSA, Civil No. 7344. DEAR MR. OHLHAUSEN: In reply to your letter of March 14, 1968, you are informed that the court issued an oral opinion in the above case, however, we do have written Findings of Fact and Conclusions of Law, and a Judgment, copies of which are enclosed. The government has indicated that it is going to appeal from the Judgment entered February 26, 1968. GENERAL SERVICES ADMINISTRATION, AN AGENCY OF THE UNITED STATES OF FINDINGS OF FACT AND CONCLUSIONS OF LAW This matter having come on regularly for trial on December 15, 1967 before the undersigned judge of the above-entitled court, plaintiff appearing and being represented by Bogle, Gates, Dobrin, Wakefield & Long and Don Paul Badgely, and defendant General Service Administration being represented by Eugene G. Cushing, United States Attorney, and Albert E. Stephan, Assistant United States Attorney, and the Court having received and considered the pleadings, files, pretrial proceedings and rulings, materials submitted by plaintiff and by defendant to the Court in camera, and evidence herein, examined the law, and heard the argument of counsel, and being advised in the premises; Now, therefore, the Court hereby makes the following: 92-089-68-2 FINDINGS OF FACT 1. On or about June 23, 1967, Henry Benson, through his attorney Irwin L. Treiger, requested access to the following records in the possession of the defendant General Services Administration: "1. Any and all memoranda reports or correspondence prepared by, at the request of, or in behalf of, the G.S.A. in arriving at the determination to dispose of the property in question. "2. Any and all appraisal reports or memoranda prepared by, at the request of, or in behalf of, the G.S.A. in connection with the disposal of the property, including any appraisals of the rental value thereof, together with any instructions given to any appraisers in connection therewith and any correspondence between the appraisers and the G.S.A. which may supplement, qualify or explain their appraisals. "3. Any and all memoranda, reports or correspondence related to the G.S.A.'s negotiations and discussions with the purchasers and to the G.S.A.'s decision to accept the purchasers' bids. “4. Any and all memoranda, reports or correspondence related to the relationship between the G.S.A. and the purchasers during the period July, 1962 and October, 1965. "5. Any and all other memoranda, reports, correspondence or documents related to the G.S.A.'s decision to sell the property, the preparation of the invitation to bid, the acceptance of the bids and the operation of the properties during the period 1962-1965." 2. Said request was made prior to the effective date of July 4, 1967 of the Public Information Act 5 U.S.C. § 522 in the manner then prescribed in the regulations of the General Services Administration set forth in Title 41, Code of Federal Regulations, Chapter 101 § 12.101-4; and was later processed under the new regulations set forth in 41 C.F.R., Chapter 105 (32 F.R. 9564 ff.). 3. Defendant, its officers and employees, have refused to grant plaintiff's request on the grounds of not identifiable records, and of exemption under the Act, as set forth in papers attached to the Complaint; and have denied plaintiff access to records consisting of Exhibits A through L herein which are presently held by the Court in camera, and are more fully described in the Judgment entered herein. 4. Plaintiff claimed that some of the above designated Exhibits may be of use to enable him to defend a proposed income tax deficiency assessment which has been asserted by the Internal Revenue Service. The Court finds from facts adduced at the trial that plaintiff does have such a special need. 5. With the exception of Dun & Bradstreet credit report on the Diamond Ice and Storage Company contained in Exhibit L(3) and the credit check dated July 3, 1962 applicable to Nowogroski, et al., defendant has failed to sustain its burden of proving that any of the documents contained in Exhibits A through L are exempt from disclosure under any of the exemptions set forth in subsection (b) of Title 5 U.S.C. § 552; and that said report and credit check are confidential commercial or financial information, which is exempt from being made available by General Services Administration. From the foregoing Findings of Fact, the Court makes the following: CONCLUSIONS OF LAW Plaintiff is entitled to the entry of Judgment herein which provides (1) that the General Services Administration, its officers and employees, shall be enjoined from withholding from plaintiff access to the records contained in Exhibits A through L herein, (except the Dun and Bradstreet Credit Report on Diamond Ice and Storage Company contained in Exhibit L(3) and the credit check on Nowogroski, et al., which are records containing confidential commercial or financial information which is exempt from being made available by G.S.A.) and directing that said records be produced and displayed to plaintiff for examination and copying except insofar as any individual record contained in said exhibits in no way pertains to the land and improvements included in Parcels 2 and 3 of the property referred to in this action as to the Auburn General Depot, which may be deleted by defendant; (2) that defendant may charge the plaintiff a fair and equitable fee for providing the requested records, including a fair and equitable fee for the expense, if any, of deletion of such matters deleted in accordance with the authorization of the foregoing paragraph, in accordance with 41 C.F.R. 105-60.303 (e); (3) that all exhibits filed herein shall remain in the custody of the Court until further order; and (4) that plaintiff is entitled to judgment for his costs herein. Dated this 26th day of February, 1968. Approved as to form only: Approved as to content and form: WILLIAM J. LINDBERG, United States District Judge. ALBERT E. STEPHAN, DON PAUL BADGLEY, Bogle, Gates, Dobrin, Wakefield & Long Attorneys for Plaintiff, UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON NORTHERN DIVISION Civil No. 7344 HENRY BENSON, PLAINTIFF, vs. GENERAL SERVICES ADMINISTRATION, AN AGENCY OF THE UNITED STATES OF AMERICA, DEFENDANT. JUDGMENT This matter having come on regularly for trial on December 15, 1967, before the undersigned judge of the above-entitled Court, plaintiff appearing and being represented by Bogle, Gates, Dobrin, Wakefield & Long and Don Badgley, and defendant being represented by Eugene G. Cushing, United States Attorney, and Albert E. Stephan, Assistant United States Attorney, and the Court having received and considered pleadings, files, pretrial proceedings and rulings, materials submitted by plaintiff and by the defendant to the Court in camera, and the evidence herein, examined the law, and heard the argument of counsel, and being advised in the premises and having entered its Findings of Fact and Conclusions of Law, Now, Therefore, it is hereby ORDERED, ADJUDGED AND DECREED as follows: 1. General Services Administration, its officers and employees are hereby enjoined from withholding from plaintiff access to the records contained in Exhibits A through L herein which were received by the Court in camera and may be briefly described as follows: "A. Disposal Plan date February 19, 1962 removed from the Disposal Plan Folder. The Disposal Plan is a five page memorandum prepared solely for internal use pursuant to GSA procedures regarding the disposal of surplus real property. It was prepared by a GSA realty officer as a recommendation to the regional office Chief, Real Property Division, Utilization and Disposal Service (UDS), which is now the Property Management and Disposal Service (PMDS). In this case, approval of the GSA Central Office also was required. The Disposal Plan details the most efficient division of the property for disposal, based on consideration of the potential use and fair market values (which are discussed) of the various portions of the Auburn General Depot. In addition to recommending transfer of a portion to GSA for its own use and interim outleasing of another portion. Once the plan was approved, it was to be followed by the regional office in making the disposal. "B. Memorandum dated June 15, 1962, removed from the Sealed Bid Sale Folder. This memorandum was prepared by Realty Officer R. A. Stuart as a recommendation to the Chief, Real Property Division, UDS, regarding the disposition of bids received in response to GSA's invitation for bids for Sale No. 1OUR-32. The memorandum evaluated the high bids for each parcel as compared with fair market value and recommended a course of action on the bid of Diamond Ice and Storage Company on Parcel 1, the amended bid of the group later to become Auburn Industrial Center on Parcel 2, and the alternate lease-purchase bid of a similar group on Parcel 3. This memorandum was used as a guide for higher authority and as a record of the reasons for the action taken. "C. TWX dated June 18, 1962, from Regional Administrator to Commissioner, UDS requesting authority to deviate from standard credit terms if the alternate bid for lease and purchase of Parcel 3 were accepted, removed from Sealed Bid Sale Folder. Any award on the alternate lease-purchase bid could have been considered a deviation from standard credit terms, which at that time were 20% down on closing with the balance to be paid in equal quarterly installments over 10 years. Approval for any deviation had to be obtained from the Central Office. The TWX compares the alternate bid with the fair market value for the parcel. "D. Memorandum dated June 19, 1962, from the Commissioner, UDS, to the Administrator requesting authority to make awards on the disposal, removed from the Sealed Bid Sale Folder. Due to the dollar value of the disposal, the Administrator's approval of awards was required. The memorandum discusses the bids as compared with fair market value. "E. Memorandum dated June 19, 1962, from Chief, Real Property Division to Assistant Commissioner for Real Property, removed from Sealed Bid Sale Folder. This memorandum is addressed specifically to comparison of the leasepurchase alternate bid on Parcel 3 to the fair rental and fair market values for the parcel and sets out the administrative adjustments made for comparison. This memorandum was used for evaluation of the bid on Parcel 3. "F. Appraisal Report dated May 31, 1961, prepared solely for GSA's use by contract appraiser Fred W. Darnell, MAI, removed from Appraisal Report Folder. This report contains the appraiser's conclusions and supporting data for his appraisal of the Auburn General Depot. "G. Memorandum dated January 31, 1962, from Regional Appraiser to Chief Real Property Division, removed from Appraisal Report Folder and Appraisal Division Folder No. 3. This memorandum sets forth the fair market value for specific proposed sale parcels and fair rental value for warehouse space. "H. Memorandum dated June 1, 1962, from Regional Appraiser to Chief, Real Property Division, removed from Appraisal Report Folder and Appraisal Division Folder No. 1. This memorandum sets forth the approved fair market values for the specific parcels included in Sale No. 1OUR-32. This was the major basis for the bid evaluations for the sale. "I. Memorandum from Director, Appraisal Staff to Regional Director, UDS, dated May 31, 1962, removed from Appraisal Division Folder No. 1. This lists the approved fair market and fair rental values for the parcels included in Sale No. 10UR-32. "J. Reviewer's Appraisal Analysis of the supplemental appraisal report for the sale and lease parcels, removed from the Appraisal Division Folder No. 1. This form contains an analysis of the soundness of the appraiser's methods and conclusions, and lists the fair market and fair rental values for the sales parcels. "K. 101 page Supplemental Appraisal Report dated May 21, 1962, prepared solely for GSA's use by contract appraiser Fred W. Darnell, MAI, covering the specific parcels in GSA Sale 10UR-32. This was a supplement to the report which is Exhibit F, and was for the same use. "L. This exhibit contains a number of subunits. Clipped to the folder marked Exhibit L, and not further identified, is some GSA correspondence regarding fair market values of the various parcels, included in the Auburn General Depot. In addition, there are various separately subnumbered exhibits within the main folder as follows: (1) contains an appraisal of the fair market value of some railroad trackage included in the Depot. (2) contains a memorandum of the Regional Appraiser regarding a valuation of 110 acres of land at the Auburn Depot, including parcels 2 and 3. (3) contains a TWX from the Chief, Real Property Division, UDS to the Assistant Commissioner for Real Property UDS, comparing fair market values and bids received on the various parcels included in the sealed bid |