Court Decisions

1973 between the Federal Trade Commission (FTC-Commission) and (1) Congress, (2) any federal agency, and (3) any state government or agency. On December 12, 1973, the FTC granted the request in part and denied it in part.

Specifically, the FTC granted access to correspondence between the Commission and Congress, and between the Commission and state governments and agencies, except for the portions of the documents which contained identifying details and names of the persons who communicated with government officials. The FTC also refused to disclose staff opinions or theory, and communications between the Commission and other federal agencies.

Mobil then filed this suit under the FOIA to compel disclosure of all withheld information. Subsequently, on March 6, 1974, the FTC informed Mobil that certain of the communications between the FTC and the states are part of active investigatory files or contained privileged or confidential material, and, as such, were exempt from disclosure.2

Deletion of Names and Identifying Details in Communications Between the FTC and Congress and the FTC and State Agencies

The first category of materials in dispute are letters and other documents [309] which constitute communications between the FTC and Congress, and the FTC and state agencies. Although the Commission released these documents to Mobil, it did so only after blacking out virtually all identifying details including the names of the correspondents. Charles A. Tobin, Secretary of the FTC, justified these deletions by stating that:

The Commission will not release such identifying information because it believes ⚫ that Citizens have a right to communicate with their government without fear of unwarranted public disclosure. (Letter of December 12, 1975 to Andrew Kilcarr, Ex. E to complaint).

A. any member of the Congress, including any employee of the Congress or any member thereof;

B. any agency of the United States Government; or employee thereof;

C. any State government or any agency or employee thereof.

* By memorandum dated June 27, 1974, the government's original motion to dismiss or for summary judgment was denied and the FTC was directed to (1) search for the existence of any relevant tape recordings and (2) file affidavits sworn on personal knowledge of the several department heads who actually supervised the search for the documents requested by Mobil. On September 9, 1974, the office of the U. S. Attorney advised counsel for plaintiff that the search for the documents was complete and that those documents which were not claimed to be exempt from disclosure were available for inspection. On September 26, 1974, the FTC filed the documents with the court for in camera review and 98 affidavits concerning the thoroughness of the search for relevant documents and tape recordings. On the basis of these documents, we are convinced, and there is no dispute, that the FTC has conducted a comprehensive search for the requested material and that there are no electronic recordings which concern the subject matter of Mobil's request. See National Cable Television Association, Inc. v. FCC, 156 U.S. App.D.C. 91, 479 F.2d 183, 190-193 (1973); Bristol-Myers v. FTC, 138 U.S.App.D.C. 22, 424 F.2d 935 (1970).

The FTC has adhered to this position, which it defends on the basis of what it terms an "informer's privilege" that it asserts is implicit in Exemptions 3, 4 and 7 of the FOIA, 5 U.S.C. § 552(b)(3), (4) and (7). [1,2] At the outset we reject the agency's argument that the purposes of these three specific provisions of the FOIA may be fused to create by implication an exemption not explicitly stated in the statutory language. As recently as April of this year, the Supreme Court in NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 136, 95 S.Ct. 1504, 1509, 44 L.Ed.2d 29 (1975) reconfirmed the principal objective of the FOIA which is:

"to establish a general philosophy of full agency disclosure unless information is exempted under clearly delineated statutory language.” S.Rep.No. 813, 89th Cong., 1st Sess., 3 (1965); Environmental Protection Agency v. Mink [410 U.S. 73], supra., at 80, 93 S.Ct. [827], at 832 [35 L.Ed.2d 119] (1973).

According to the language of the FOIA as construed by the Supreme Court, all "identifiable records" must be made available to a member of the public on demand (5 U.S.C. § 552(a)(3)) unless the requested documents fall within one of the Act's nine exemptions. (5 U.S.C. § 552(b)). NLRB v. Sears, Roebuck & Co., supra, 421 U.S. at 136-137, 95 S.Ct. 1504. Although the validity of the theory of an "implicit❞ exemption advanced by the FTC has not been squarely presented to any court, the general philosophy of the FOIA as stated by the court in NLRB v. Sears, Roebuck & Co., supra, the accepted principle that the specific exemptions are to be construed narrowly,3 and the language of the Act itself make clear that the FTC's justification for deleting identifying details can be sustained, if at all, only on the independent applicability of any of the Act's exemptions to the deletions in question. Each exemption upon which the FTC relies must therefore be individually analyzed to determine whether, as defendants argue, it warrants the erasures made.

A. Exemption 3

[3,4] The Commission relies first upon the argument that Section 6(f) of the Federal Trade Commission Act, 15 U.S.C. § 46(f)(FTCA), as well as certain of the FTC's rules and regulations, authorize the deletion of confidential matter and that these statutes and rules bring the material within Exemption 3 of the FOIA which protects matters that are

"specifically exempted from disclosure by statute." 5 U.S.C. § 552(b)(3)

3 See, e. g., Rose v. Department of Air Force, 495 F.2d 261 (1974); Fisher v. Renegotiation Board, 153 U.S.App.D.C. 398, 473 F.2d 109, 112 (1972); Bristol-Myers Co. v. FTC, 138 U.S. App.D.C. 22, 424 F.2d 935, 938, cert. denied, 400 U.S. 824, 91 S.Ct. 46, 27 L.Ed.2d 52 (1970).

The Commission bases its authority to withhold identifying details in part on the strength of Rules 2.2(d) and 4.10(b) of the FTC's Rules of Practice. 16 C.F.R. §§ 2.2(d), 4.10(b). Section 2.2(d) states that the Commission's "general * ** policy" is not to divulge names of complainants "except as required by law." Section 4.10(a) recites the exemptions to the FOIA with the FTC's analysis of those exemptions, adding, at § 4.10(b), that the Commission may delete identifying details from material it [310] makes public if necessary "to prevent clearly unwarranted invasions of privacy." Rather than creating additional criteria for withholding information, these regulations restate-and in § 4.10(a) actually recite-the exemptions contained in the FOIA itself. Even if this were not so, however, neither regulations nor guidelines promulgated by a federal agency, can override the language and purpose of a statutory enactment. Exemption 3 permits a refusal to disclose material only where another statute authorizes such action.

Thus, the only possible basis for the applicability of Exemption 3 in the circumstances is Section 6(f) of the FTCA (15 U.S.C. § 46(f)) which provides in language the Commission argues to be relevant:

§ 46 Additional powers of Commission The Commission shall also have power

(f) Publication of information; reports

To make public from time to time such portions of the information obtained by it hereunder, except trade secrets and names of customers, as it shall deem expedient in the public interest; and to make annual and special reports to the Congress and to submit therewith recommendations for additional legislation; and to provide for the publication of its reports and decisions in such form and manner as may be best adapted for public information and use.

The Commission argues that this language authorizes it to determine whether the release of information in its possession would further the public interest. If, as here, the FTC concludes that disclosure of particular documents would not achieve that goal, the agency contends that Section 6(f) prohibits the release of that material, and that it consequently falls within the ambit of Exemption 3 of the FOIA.

[5] We disagree. Section 6(f) confers upon the FTC the right to disclose and publish, with few limitations, information it possesses. By its terms, the statute authorizes disclosure-not, as the FTC argues, the refusal to disclose. The sole items that the statute does not authorize the FTC to reveal are trade secrets and names of customers. Those limitations in no way make the statute one which explicitly forbids disclosure of all identifying details and all names of correspondence in communications received by the FTC.

The legislative history and judicial construction of Section 6(f) support this interpretation. The Senate debate on the bill which

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:

* or by

* disclosure * • ** by the Secretary * of any record * * * obtained * 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 Commission bases its authority to withhold identifying details in part on the strength of Rules 2.2(d) and 4.10(b) of the FTC's Rules of Practice. 16 C.F.R. §§ 2.2(d), 4.10(b). Section 2.2(d) states that the Commission's "general policy" is not to divulge names of complainants "except as required by law." Section 4.10(a) recites the exemptions to the FOIA with the FTC's analysis of those exemptions, adding, at § 4.10(b), that the Commission may delete identifying details from material it [310] makes public if necessary "to prevent clearly unwarranted invasions of privacy." Rather than creating additional criteria for withholding information, these regulations restate-and in § 4.10(a) actually recite-the exemptions contained in the FOIA itself. Even if this were not so, however, neither regulations nor guidelines promulgated by a federal agency, can override the language and purpose of a statutory enactment. Exemption 3 permits a refusal to disclose material only where another statute authorizes such action.

§ 46 Additional powers of Commission

The Commission shall also have power

(f) Publication of information; reports

The legislative history and judicial construction of Section 6(f) support this interpretation. The Senate debate on the bill which

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