became § 6(f) demonstrates that although the statute embodies guidelines to limit release of certain types of information at the FTC's disposal, the major thrust of the bill was to set forth what material the Commission on its own initiative could make public, not what it could refuse to disclose. In fact, some concern was voiced on the Senate floor that the FTC under this statute would release too much information. See 51 Cong.Rec. 12929 (1914). Similarly, the analysis of § 6(f) by the court in FTC v. Cinderella Career and Finishing Schools, 131 U.S.App.D.C. 331, 404 F.2d 1308 (1968) establishes that the section was aimed at allowing publication and [311] that the limitations on public release set forth in the section were intended to:

require adequate consideration and suitable weighing of any damage to private property which widespread publicity of unadjudicated charges may be calculated to produce. Id. at 1320-1321 (Robinson, III, J., concurring)

Accord, Bristol-Myers Co. v. FTC, 138 U.S.App.D.C. 22, 424 F.2d 935, 940 cert. denied, 400 U.S. 824, 91 S.Ct. 46, 27 L.Ed.2d 52 (1970).

Section 6(f) of the FTCA is thus distinguishable from other statutes which have been held to fall within the meaning of Exemption 3 of the FOIA. In Evans v. Department of Transportation, 446 F.2d 821 (5th Cir. 1971), cert. denied, 405 U.S. 918, 92 S.Ct 944, 30 L.Ed.2d 788 (1972), the statute at issue provided in part:

Any person may make written objection to the public disclosure of information Whenever such objection is made, the Board or Administration shall order such information withheld from public disclosure when, in their judgment, a disclosure of such information would adversely affect the interests of such person and is not required in the interest of the public. 49 U.S.C. § 1504.

It is clear, and the government concedes, that 49 U.S.C. § 1504, unlike § 6(f) of the FTCA, contains an affirmative provision for exemption from disclosure. Similarly, the court in California v. Richardson, 351 F.Supp. 733 (N.D.Cal.1972), held that the withholding of records was protected by Exemption 3 of the FOIA on the basis of a statute which prohibits:

disclosure * * of any record *

obtained * by the Secretary

or by any officer or employee of the Department of Health, Education and Welfare except as the Secretary *** may by regulations prescribe *** 42 U.S.C. § 1306(a).

• The Senate debate included the following interchange:

Mr. SUTHERLAND. Again let me see if I understand the Senator. One of the powers given to this commission is to make public the facts that they may learn. Does the Senator think the commission may require the production of all books and papers, and so on, in order that what it discovers may be made public?

Mr. LEWIS. No; I answer the Senator. He misapprehends the purport of the bill completely if that is his idea. The matters made public in the bill relate only to those things that have been brought before the commission for one of two purposes, or aid to legislation, which would not be a matter which anyone could complain of, or to demonstrate a violation complained of as touching unfair competition. It does not allow, as I apprehend the bill, that matters may be made public without any regard to any object whatever except publicity. 51 Cong. Rec. 12929 (1914).

The unequivocal language of the statute at issue in California v. Richardson, supra, forbids disclosure of documents and is in general the converse of § 6(f) of the FTCA which authorizes release of material. In short, the statutes which have been held to fall within the exemption are the obverse of § 6(f) of the FTCA in language and intent; the cases interpreting them are not authority for the defendants' position.

The Supreme Court's recent analysis of Exemption 3 in FAA Administrator v. Robertson, 422 U.S. 255, 95 S.Ct. 2140, 45 L.Ed.2d 164 (1975) did not specifically address the issue in this case and in no way undermines the result reached here. The Robertson court merely held that the term "specific" in Exemption 3's requirement that material be "specifically exempted *** by statute" did not mean that:

the exemption applies only to documents specified, i. e., by naming them precisely or by describing the category in which they fall. Id. at 265, 95 S.Ct at 2147.

However, the inapplicability of Section 6(f) of the FTCA to Exemption 3 is not predicated on its lack of specificity, but rather on the fact that it simply is not a statute which purports to prohibit disclosure.

As indicated above, the sole area in which § 6(f) of the FTCA limits the authority of the Commission relates to disclosure of facts which consist of "trade secrets and names of customers." Thus, although § 6(f) cannot justify wholesale deletions of all names and identifying details, it does specifically exempt from disclosure those two items. Accordingly, deletions of trade secrets and names of customers, but only such deletions, are protected from disclosure by Exemption 3 of the FOIA.

B. Exemption 4

The FTC next asserts that the informant's privilege is inherent in Exemption 4 of the FOIA which protects from disclosure:

trade secrets and commercial or financial information obtained from a [312] person and privileged or confidential. 5 U.S.C. § 552(b)(4).

An examination in camera of a sizeable sample of the documents in question confirms that in many instances they pertain to "trade secrets and commercial or financial information." However, it is impossible to determine on the record before us whether they are privileged or confidential.

As the court in Bristol-Myers Co. v. FTC, noted, "This provision serves the important function of protecting the privacy and the competitive position of the citizen who offers information to assist government policy makers." 424 F.2d at 938. More recently, the same court has stated:

The established tests for determining whether documents are "confidential" within the meaning of Exemption 4 are that the [material] must be of the sort not customarily disclosed to the public and that disclosure * * must not be likely to either impair the government's ability to obtain necessary information in the future or cause substantial harm to the competitive position of the person from whom the information is obtained. Pacific Architects & Eng. Inc. v. Renegotiation Board, 164 U.S.App.D.C. 276, 505 F.2d 383, 384 (1974) (citations omitted).

[6–8] The agency refusing to disclose requested documents has the burden of demonstrating the applicability of a particular FOIA exemption; the Act "does not permit a bare claim of confidentiality to immunize agency files from scrutiny." Id. The material withheld must be shown to be "independently confidential" based on its contents, and entitled to a "reasonable expectation of privacy." Ditlow v. Volpe, 362 F.Supp. 1321, 1324 (D.D.C.1973), citing Fisher v. Renegotiation Board, 153 U.S.App.D.C. 398, 473 F.2d 109, 113 (1972); Getman v. NLRB, 146 U.S.App.D.C. 209, 450 F.2d 670, 675 (1971); Grumman Aircraft Engineering Corp. v. Renegotiation Board, 138 U.S. App.D.C. 147, 425 F.2d 578, 580 (1970); M. A. Schapiro & Co. v. SEC, 339 F.Supp. 467, 470 471 (D.D.C. 1972). Defendants have not remotely sustained their burden. They have failed to present a single affidavit by a member of the FTC or its staff which states the basis for concluding the documents in question are confidential or privileged. Nor has the government made any attempt to scrutinize the documents individually before blocking out identifying details. The FTC excuses its lack of proof with the bold statement that "Because these documents number in the hundreds, it would be wholly impractical to make* * * factual determinations [as to confidentiality] with regard to each." (Defendants' Reply Memorandum, May 21, 1974 at p. 9).5 Although we recognize that a request for documents of the magnitude here saddles an agency with a substantial, time-consuming task, adherence to the FOIA's scheme requires that the job be done. The Court of Appeals for the District of Columbia analyzed the problems of proof and procedure under the Freedom of Information Act with great detail in Vaughn v. Rosen, 157 U.S.App.D.C. 340, 484 F.2d 820 (1973), cert. denied, 415 U.S. 977, 94 S.Ct. 1564, 39 L.Ed.2d 873 (1974) and Cuneo v. Schlesinger, 157 U.S. App.D.C. 368, 484 F.2d 1086 (1973), cert. denied, 415 U.S. 977, 94 S.Ct. 1564, 39 L.Ed.2d 873 (1974). As the court in Vaughn and Cuneo noted, the earlier failure of courts to require the government to justify its refusal to disclose documents in any detail encourages it to argue for the widest possible exemption from disclosure for the greatest bulk

• Defendants added:

"It would be wholly impracticable for the Commission to determine, with regard to each person, information such as the following: whether the person provided information in confidence・・・ whether the person waived any privilege of confidentiality; whether the Congressmen had reason to protect the names of such persons or any other information that might have been relevant." Defendants' Reply Memorandum, p. 15.

of material. Moreover, since the govern[313]ment—the party opposing disclosure—is the only side capable of confidently categorizing the type of information at issue, the "traditional adversary nature of our legal system" is seriously distorted, if not altogether hamstrung. To correct these deficiencies, the court required a particularized and specific factual justification from the government for exempting information, and a system of indexing and itemizing the contested documents that would correlate statements made in the government's justification with actual portions of the material. Given the reams of documents produced for in camera inspection in this case it is clear that, without the detailed justification and specificity of indexing required by Vaughn and Cuneo, a trial court, although provided with so little guidance, is nevertheless left with "the burden of actually determining whether the information is as the Government describes it." Cuneo v. Schlesinger, supra, 484 F.2d at 1091. See, in general, Vaughn v. Rosen, supra, 484 at 823-28; Cuneo v. Schlesinger, supra, 484 F.2d at 1091–92. A glance at a few of the FTC's deletions immediately show that many of the documents cannot reasonably be deemed confidential. For example, in a letter to Senator Moss requesting information about legislation requiring the listing of octane content, the author's name and address are blocked out. (Ex. F to Plaintiff's Supplemental Memorandum of June 4, 1974). The author's name and address in a letter to Senator Talmadge requesting a copy of an FTC staff study for use in research for a college debate topic is similarly withheld. (Ex. K to Plaintiff's Supplemental Memorandum). As one court understandably commented, "The only thing more puzzling than why Plaintiffs would want these [facts] is why Defendants refuse to disclose them." Ditlow v. Volpe, supra, 362 F. Supp. at 1321.

[9] Nevertheless, Mobil is entitled to these facts and any others not protected by the FOIA's exemptions. Summary judgment is therefore deferred on this issue until such time as the defendants have submitted proper documentation of their claim. The defendants are directed to classify the documents in which identifying details have been deleted to indicate which documents they assert were received in confidentiality and those which are not. The Commission is further directed to submit affidavits by knowledgeable members of the FTC or its staff which provide "particularized and specific justification" for the deletions. Cuneo v. Schlesinger, supra, 484 F.2d at 1092. Because of the vast numbers of documents involved, this data need not refer separately to each document. However, any categorization of documents in groups must be clearly stated and justified. See Pacific Architects & Eng. Inc. v. Renegotiation Board, supra, 505 F.2d at 385 for examples of the information which the defendants are required to produce.

C. Exemption 7

[10] The FTC further asserts that the deletions made are justified on the ground that the documents at issue are part of the file compiled and utilized by the FTC for an on-going investigation into the activities of the petroleum industry for possible violations of the Federal Trade Commission Act and that the identifying details in the documents are accordingly protected from disclosure by Exemption 7 of the FOIA.

It is undisputed that the FTC in fact conducted an investigation into the practices of the petroleum industry which resulted in the filing of a complaint against Mobil and other oil corporations. In the Matter of Exxon Corporation, et al., FTC Docket No. 8934 (Ex. F to Complaint). The complaint is currently pending before the Commission. However, the pendency of law enforcement proceedings in and of itself does not establish the applicability of Exemption 7 to the contested deletions. At the time the present motions were filed, Exemption 7 protected: investigatory files compiled for law enforcement purposes * * * 5 U.S.C. § 552(b)(7). [314] Since then Congress has amended Exemption 7 to provide in pertinent part:

Investigatory records compiled for law enforcement purposes, but only to the extent that the production of such records would (A) interfere with enforcement proceedings, (B) deprive a person of a right to a fair trial or an impartial adjudication, (C) constitute an unwarranted invasion of personal privacy, (D) disclose the identity of a confidential Pub. L. 93-502, 88 (Stat.1563)

source

Although the amendment was not enacted until November 20, 1974 to become effective ninety days later, the Supreme Court held in NLRB v. Sears, Roebuck & Co. that any decision on the applicability of Exemption 7, even on a motion filed prior to the enactment of the revised version "would have to be under the Act, as amended." Supra, 421 U.S. at 165, 95 S.Ct. at 1523.

Absent any supporting affidavits, it is clear that the FTC cannot sustain its burden of demonstrating that the revelation of the identifying details "would interfere with enforcement proceedings, *** constitute [an] * *** unwarranted invasion of personal privacy, disclose the identity of an informer, or disclose investigative techniques and procedures." S.Conf.Rep.No.93-1200 at 12, U.S.Code Cong. & Admin.News, pp. 6285, 6291 (1974), quoted in NLRB v. Sears, Roebuck & Co. id. To the extent that the Commission means to argue that Exemption 7(D) as amended, ("disclose the identity of a confidential source") is applicable, it must establish that any claim of confidentiality meets the standard of Exemption 7 as explained in the Conference Report accompanying the bill:

The substitution of the term "confidential source" in section 552(b)(7)(D) is to make clear