COMMISSION et al.*

No. 74 Civ. 311. F.T.C. Docket No. 8934.

(United States District Court, Southern District of New York, January 12, 1976)

1. UNLESS REQUESTED DOCUMENTS FALL WITHIN EXCEPTIONS, ALL IDENTIFIABLE RECORDS MUST BE MADE AVAILABLE UNDER FREEDOM OF INFORMATION ACT.

Under Freedom of Information Act all identifiable records must be made available to the public on demand unless requested documents fall within one of the Act's nine exceptions.

2. UNDER FREEDOM OF INFORMATION ACT, SPECIFIC DISCLOSURE

EXEMPTIONS ARE TO BE NARROWLY CONSTRUED.

Specific exemptions from disclosure under the Freedom of Information Act are to be construed narrowly.

3. F.T.C. REGULATIONS REGARDING POLICY OF NOT DIVULGING COMPLAINANTS' NAMES, EXCEPT AS REQUIRED BY LAW, DID NOT JUSTIFY DELETION OF NAMES AND IDENTIFYING DETAILS IN COMMUNICATIONS WITH CONGRESS AND STATE AGENCIES.

Regulations of Federal Trade Commission relating to Commission's general policy not to divulge names of complainants except as required by law afforded no justification for deletion of names and identifying details in communications between Commission and Congress and between Commission and state agency whose production was sought under Freedom of Information Act protecting matters which are specifically exempted from disclosure by statute.

4. LANGUAGE AND PURPOSE OF STATUTORY ENACTMENT CANNOT BE OVERRIDDEN BY AGENCY REGULATIONS OR GUIDELINES.

Neither regulations nor guidelines promulgated by federal agency can override language and purpose of statutory enactment.

5. DISCLOSURE OF ALL NAMES AND IDENTIFYING DETAILS IN COMMUNICATION IS NOT EXPLICITLY FORBIDDEN BY STATUTE AUTHORIZING DISCLOSURES OF SUCH INFORMATION DEEMED IN THE PUBLIC INTEREST BY F.T.C.

Statute relating to additional powers of Federal Trade Commission to make public such portions of information obtained by it, except trade secrets and names of customers, as it deems in public interest authorizes disclosure and not the refusal to disclose, and statute does not within meaning of exemptions under Freedom of Information Act explicitly forbid disclosure of identifying details and all names in correspondence and communications received by Commission.

6. BURDEN OF DEMONSTRATING APPLICABILITY OF EXEMPTIONS AND SHOWING THAT CONTENTS ENTITLED TO PRIVACY RESTS WITH AGENCY REFUSING DISCLOSURE.

Agency refusing to disclose requested documents on ground that they fall

within the exemption of Freedom of Information Act protecting from disclosure trade secrets and commercial or financial information which are privileged or confidential has burden of demonstrating applicability of the particular exemption, and material must be shown to be independently confidential based on its contents and entitled to a reasonable expectation of privacy.

7. F.T.C. FAILED TO JUSTIFY DELETION OF INFORMATION UNDER EXEMPTION PROVISION OF FREEDOM OF INFORMATION ACT.

Federal Trade Commission, which failed to present a single affidavit by a member of the Commission or its staff stating basis for concluding that documents from which Commission sought to delete names and identifying materials were confidential or privileged and which made no attempt to scrutinize documents individually before blocking out identifying details, failed to carry burden of showing that such deletions were justified under that exemption of Freedom of Information Act protecting privileged or confidential trade secrets and commercial or financial information.

8. ADHERENCE TO FREEDOM OF INFORMATION ACT SCHEME REQUIRES AGENCY TO INDIVIDUALLY SCRUTINIZE DOCUMENTS TO SUBSTANTIATE EXEMPTION CLAIMS REGARDLESS OF FACT THAT SUCH TASK MAY BE VERY

TIME-CONSUMING.

Although a request for a large number of documents saddled agency with a substantial time-consuming task with respect to individual scrutinization of the same to substantiate claim that portions of documents were protected from disclosure under Freedom of Information Act exemption relating to privileged and confidential trade secrets and financial information, adherence to the Act scheme required that the job be done.

9. DESPITE COMMISSION'S FAILURE TO SUSTAIN BURDEN OF SHOWING THAT DOCUMENTS WERE PROTECTED FROM DISCLOSURE, COURT DEFERRED SUMMARY JUDGMENT UNTIL AGENCY SUBMITTED APPROPRIATE CLAIM, AND PROPERLY

DOCUMENTATION OF CONFIDENTIALITY

CLASSIFIED DOCUMENTS.

Although Federal Trade Commission failed to sustain burden of showing that the vast number of documents requested relating to various aspects of petroleum use and from which the Commission had deleted names and identifying material were protected from disclosure under exemption of Freedom of Information Act provision protecting confidential and privileged trade secrets and financial and commercial information, summary judgment was deferred until the Commission had submitted proper documentation of claim of confidentiality and Commission was directed to properly classify documents.

10. COMMISSION WOULD NOT BE ENTITLED TO EXEMPTION UNDER FREEDOM OF INFORMATION ACT UNLESS IT SUBMITTED AFFIDAVITS SUPPORTING ITS CONTENTIONS THAT DISCLOSURE WOULD CONSTITUTE AN INVASION OF PRIVACY, DISCLOSE PROCEDURAL TECHNIQUES, AND HINDER ENFORCEMENT PROCEEDINGS.

Absent any supporting affidavits Federal Trade Commission could not sustain its burden of demonstrating that the revelation of identifying details in Commission's communications regarding various aspects of petroleum use would interfere with enforcement proceedings, constitute unwarranted invasion of personal privacy, disclose identity of any informer or disclose investigative techniques, and Commission was not entitled to claim exemption under that

Freedom of Information Act exception unless it submitted affidavits showing its entitlement to such exemption.

11. EXPLANATORY COMMUNICATIONS MADE AFTER DECISION WAS MADE ARE NOT EXEMPT UNDER FREEDOM OF INFORMATION ACT PROVISIONS. Intra-agency memoranda written prior to and in connection with formulation of an agency decision fall within that exception to Freedom of Information Act protecting intra-agency memoranda from disclosure while communications made after a decision is reached and designed to explain it are not within exception. 12. COMMUNICATIONS AND INTERVIEWS BETWEEN FTC STAFF AND STATE AGENCY OFFICIALS FELL WITHIN FREEDOM OF INFORMATION ACT EXEMPTION.

An in camera inspection of communications between Federal Trade Commission and state agencies discussing relationship between separate investigations by Commission and a state Attorney General into pricing policies of major brand oil suppliers and a summary of interviews between staff members and officials of state agency written to instruct Commission as to jurisdiction and decision-making process of state agency did fall within that exception to Freedom of Information Act protecting from disclosure intra-agency memoranda.

13. PETROLEUM INDUSTRY REPORT CONTAINING CLOSE ANALYSIS OF FTC'S CURRENT PENDING INVESTIGATION AND LETTERS CONTAINING POLICY OPINION WERE PROTECTED FROM DISCLOSURE BY INTRA-AGENCY EXCEPTION.

In camera inspection of letters written by Federal Trade Commission officials to staff members of federal agencies containing matters of policy opinion and presenting no facts which were severable from policy statements and Commission report on petroleum industry containing a close analysis of current pending investigation by Commission were protected from disclosure under the intraagency exception to the Freedom of Information Act.

14. INSPECTION REVEALED THAT MOST OF THE DOCUMENTS CONTAINED POLICY DISCUSSIONS AND OPINIONS AND WERE EXEMPTED FROM DISCLOSURE.

In camera inspection of Federal Trade Commission memoranda on information received in communications between staff members of Commission and other agencies, communications dealing with liaison between Department of Justice and Commission in their investigating efforts and communications between Commission or other agencies exchanging information or seeking same showed that most of the documents contained policy discussions and opinions and accordingly fell within the intra-agency memoranda exception to the Freedom of Information Act. 15. DECISION AS TO DISCLOSURE OF MEMORANDA SHOWN TO BE NONEXEMPT BY INSPECTION WOULD BE WITHHELD PENDING SUBMISSION OF AFFIDAVITS AND COMPILATION AND INDEXING OF DOCUMENTS.

Memoranda by Federal Trade Commission which did not contain, as shown by in camera inspection, opinion and policy deliberations were not entitled to the intraagency exemption under the Freedom of Information Act, but decision as to disclosure of such documents would be withheld pending Commission's compilation and indexing of documents together with submission of affidavits as to the applicability of the investigatory exception under Act.

16. WHERE IN CAMERA INSPECTION SHOWED DOCUMENTS WITHHELD TO BE

CITIZEN COMPLAINTS, INTRA-AGENCY EXCEPTION PROTECTED THEM
FROM DISCLOSURE.

In camera inspection of documents, which had been entirely withheld by Federal Trade Commission pursuant to request for disclosure under the Freedom of Information Act, established that those documents referring to citizen complaints to Department of Justice with respect to oil industry were protected from the disclosure by the intra-agency exception since they related to opinions and decisions involving pending investigation of oil companies and petroleum issues. 17. DELETION OF NAMES OF CONGRESSMEN AND OTHER FEDERAL OFFICIALS WAS NOT AUTHORIZED UNDER EXCEPTION PROVISION OF FREEDOM OF INFORMATION ACT.

To extent that the complainants were customers of oil companies or related business concerns, the deletion of names and identifying details in letters to Department of Justice were mandated by that section of Federal Trade Commission Act authorizing deletion of trade secrets and names of customers and fell within ambit of that exception to Freedom of Information Act relating to materials specifically exempted by statute, but the deletions of names of congressmen or other federal officials were not similarly protected and did not fall within the intra-agency exception of Act since documents contained neither policy nor opinion.

(Syllabus, with substituted captions, taken from 406 F.Supp.

305)

On action to compel disclosure of withheld documents, Court held, inter alia, that the Federal Trade Commission failed to properly establish right to exemption or non-exemption of particular documents under the intra-agency memoranda exemption of the Freedom of Information Act.

Motions disposed of in accordance with opinion.

Donovan, Leisure, Newton & Irvine, New York City, for plaintiff; Andrew J. Kilcarr, Washington, D.C., Charles F. Rice, New York City, Mobil Oil Corp., of counsel.

Thomas J. Cahill, U.S. Atty., S.D.N.Y., New York City, for defendants; Gregory J. Potter, Asst. U.S. Atty., Calvin J. Collier, Gen. Counsel, Gerald Harwood, Asst. Gen. Counsel, Robert E. Duncan, Mary L. Azcuenaga, Attys., Federal Trade Commission, of counsel.

Before LASKER, District Judge.

[308] By letter dated August 22, 1973, Mobil Oil Corporation requested, pursuant to the Freedom of Information Act (FOIA) the opportunity to inspect and copy all communications pertaining to various aspects of petroleum use1 from January 1, 1970 to August 22,

1 Mobil specifically requested:

[For the period January 1, 1970 to [August 22, 1973], all communications including letters, reports or memoranda, and notes, transcripts or other memorialization of oral communications pertaining to petroleum (in liquid or gaseous form) supplies, shortages, allocations, imbalances, availabilities, competitive or noncompetitive activities, and any reason therefor or causes thereof, between the Federal Trade Commission (including any member or employee thereof) and

(Continued)