RESULTS Partial disclosure required. Action remanded to trial court to consider possibility of deleting portions of documents, and thus remove them from "interagency or intra-agency" exemption of Act and for determination of whether there were appendices or statements of fact which were clearly subject to disclosure. Warning letters sent to meat and poultry producers and reports of administrative detention of meat and poultry products were written records of regulatory action already taken and were not information gathering steps which had to be shielding under investigatory files exemption of the Act. Disclosure denied under (b)(7). Report containing factual basis for bringing charges against both Army officers and enlisted men is an investigatory file exempt from release. Disclosure denied under (b)(1). J. J. Henry Co. v. United States, 188 Kaiser Aluminum & Chemical Corp. v. United States, 141 Ct. Cl. 38, 157 F. Supp. 939 (1958), pp. 15, 27. Kewanee Oil Co. v. Bicron Corp., 416 U.S. 470 (1974), p. 22. M. A. Schapiro & Co. v. SEC, 339 F. Supp. 467 (D.D.C. 1972), P. 19. McCoy v. Weinberger, 386 F. Supp. 504 (W.D. Ky. 1974), P. 23. Moore-McCormack Lines, Inc. v. I.T.0. Corp., 508 F.2d 945 (4th Cir. 1974), PP. 3, 40. NLRB v. Sears Roebuck & Co., 421 U.S. 132 (1975), pp. 10, 26, 27, 41. National Parks and Conservation Association v. Morton, 351 F. Supp. National Parks and Conservation Association v. Morton, 498 F.2d 765 (D.C. Cir. 1974), pp. 21, 23, 25. Open America v. Watergate Special Prosecution Force, No. 76-1371 (D.C. Pacific Architects & Eng'rs. v. Renegotiation Board, 505 F.2d 383 (D.C. Cir. 1974), p. 25. Padbloc v. United States, 161 Ct. Cl. 369 (1963), p. 42. Pennzoil Co. v. FPC, 534 F.2d 627 (5th Cir. 1976), p. 40. Pharmaceutical Manufacturers Ass'n. v. Weinberger, 401 F. Supp. 444 (D.D.C. 1975), pp. 39, 41. Pharmaceutical Manufacturers Ass'n. v. Weinberger, 411 F. Supp. 576 (D.D.C. 1976), pp. 38, 39. Polymers Inc. v. NLRB, 414 F.2d 999 (2d Cir. 1969), cert. denied, 396 U.S. 1010 (1970), p. 18. Rabbit v. Department of the Air Force, 383 F. Supp. 1065 (S.D.N.Y. 1974), P. 21. Robles v. EPA, 484 F.2d 843 (4th Cir. 1973), p. 15. Rural Housing Alliance v. Dept. of Agriculture, 498 F.2d 73 (D.C. Cir. 1974), p. 28. Soucie v. David, 448 F.2d 1067 (D.C. Cir. 1971), p. 27. Speedry Chemical Products Inc. v. Carter's Ink Co., 306 F.2d 328 (2d Cir. 1962), p. 22. Spevack v. Strauss, 257 F.2d 208 (D.C. Cir. 1958), p. 42. Sterling Drug, Inc. v. FTC, 450 F.2d 698 (D.C. Cir. 1971), pp. 15, 23, 24. Stokes v. Brennan, 476 F.2d 699 (5th Cir. 1973), pp. 12, 13, 14. Tax Analysts & Advocates v. IRS, 362 Tax Analysts and Advocates v. IRS, 505 3035-67 (D.D.C. Apr. 11, 1968), p. 21. United States ex rel Norwegian Nitrogen Products Co. v. United States Tariff Commission, 6 F.2d 491 (D.C. Cir. 1925), rev'd on other grounds 274 U.S. 106 (1927), p. 22. Vermont Low Income Advocacy Council, Inc. v. Usery, No. 145 (2d Cir. Dec. 9, 1976), p. 35. Westinghouse Electric Corp. v. Schlesinger No. 74-1801 (4th Cir. Sept. 30, 1976), pp. 3, 19, 37, 40, 41. Wine Hobby USA Inc. v. IRS, 502 F.2d 133 (3d Cir. 1974), p. 28. SUPPLEMENTAL STATEMENTS SUBMITTED FOR THE RECORD [Exhibit 9] STATEMENT OF DIANE B. COHN, FREEDOM OF INFORMATION CLEARINGHOUSE, WASHINGTON, D.C. I am Diane Cohn, an attorney with the Freedom of Information Clearinghouse. The Clearinghouse is an organization sponsored by Ralph Nader which is designed to assist members of the public and the press in pursuing their rights to obtain government-held information under the Freedom of Information Act and other access laws. I very much appreciate the opportunity to address what we now all recognize to be the many problems presented by the trade secrets exemption of the Freedom of Information Act and the so-called "reverse litigation" which has resulted from it. We are pleased that the Administrative Practice and Procedure Subcommittee is undertaking this oversight hearing with a view towards exploring what legislative changes might be appropriate for resolving the myriad problems and uncertainties which exist under the present state of the law. There is now an ever-growing list of conflicting judicial opinions which have attempted to delineate the rights of submitters of information to enjoin the disclosure of information which is claimed to be confidential and commercial within the meaning of exemption 4. Many of these actions have arisen in response to requests by public interest groups for access to information such as civil rights compliance reports and affirmative action plans. In one such case, the United States Court of Appeals for the Fourth Circuit found that these reports constituted confidential commercial information, disclosure of which was absolutely barred by 18 U.S.C. § 1905, a broad criminal statute which applies only to disclosure "not authorized by law." Westinghouse Electric Corp. v. Schlesinger, 542 F.2d 1190 (4th Cir. 1976), cert. denied, 45 U.S.L.W. 3749 (May 16, 1977) (No. 76-1192). Despite conflicts between this decision and other opinions rendered in the D.C. Circuit, see, e.g., Charles River Park “A”, Inc. v. HUD, 519 F.2d 935 (1975), the Supreme Court refused the opportunity to resolve these questions of law. Just last week, however, the Third Circuit correctly concluded, we think, that the FOIA exemptions are merely permissive in nature, and therefore allow the Department of Labor to promulgate regulations authorizing disclosure of civil rights compliance information-notwithstanding the applicability of an exemption-when the public interest would be furthered thereby. Chrysler Corp. v. Schlesinger, Nos. 76-1970 and 76-2238 (3rd Cir., Sept. 26, 1977). In addition, that Court held that if this civil rights information is properly released pursuant to such a valid agency regulation, it is an authorized disclosure for purposes of 18 U.S.C. § 1905. See also Westinghouse Electric Corp. v. NRC, 555 F.2d 82 (3rd Cir. 1977). Although the Supreme Court will once again have an opportunity to attempt to reconcile these conflicting interpretations, the fact will remain that the process of applying the prevailing National Parks competitive harm test may continue to require expensive and time-consuming trials, a result which has virtually obscured two of the FOIA's most fundamental precepts: (1) that disclosure should be promptly made and (2) that the average citizen should have an available judicial remedy for challenging agency withholding. 1 See Sears, Roebuck and Co. v. GSA, No. 75-2127 (D.C. Cir., April 1, 1977). 21-656-78—20 |