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NATIONAL PARKS & CONSERVATION ASSN. v. MORTON

December 4, 1972

NATIONAL PARKS AND CONSERVATION ASSOCIATION, Plaintiff,
v.
Rogers C. B. MORTON, Secretary, Department of the Interior, et al., Defendants


Gasch, District Judge.


The opinion of the court was delivered by: GASCH

GASCH, District Judge.

 This matter came on for consideration of cross-motions for summary judgment. The suit was brought under the Freedom of Information Act, 5 U.S.C. § 552, to enjoin the defendants from refusing to permit plaintiff to inspect and copy certain agency records. Plaintiff, a nonprofit educational and scientific organization, originally requested the Director of the National Park Service to disclose specified documents concerning its concession operations. After revealing substantially all the information that was obtainable without extensive research, the Park Service denied that part of the plaintiff's request which sought the results of audits upon the books of several companies operating concessions in the national parks, the annual financial statements filed with the Park Service by these concessioners, and other financial information. The principal question posed by the refusal of the Park Service to make available the requested documents is whether the information sought comes within the Section 552(b)(4) exemption to the Freedom of Information Act.

 The pertinent portions of the Act provide:

 
"(3) . . . each agency, on request for identifiable records . . . shall make the records promptly available to any person . . . .
 
* * *
 
(b) This section does not apply to matters that are --

 The statutory language and legislative history of the Freedom of Information Act demonstrate that the fundamental purpose of the Act was to broaden the citizen's access to government records. *fn2" Although Congress inaugurated a liberal policy of disclosure by passing the Act, it nevertheless recognized the importance of preserving the confidentiality of certain information in government possession. One of the several areas that was specifically exempted from disclosure is "commercial or financial information obtained from a person and privileged or confidential." 5 U.S.C. § 552(b)(4). In order to justify the withholding of information under this section of the Act, the government must show that the information is: (1) commercial or financial; (2) obtained from a person; and (3) privileged or confidential. Getman v. National Labor Relations Board, 146 U.S.App.D.C. 209, 450 F.2d 670, 673 (1971); Consumers Union of United States, Inc. v. Veterans Administration, 301 F. Supp. 796, 802 (S.D.N.Y.1969), appeal dismissed, 436 F.2d 1363 (2d Cir. 1971). Since it is conceded that the information sought herein is financial information obtained from a person and that it is not privileged, the sole question remaining is whether it is confidential within the meaning of Section 552(b)(4).

 In determining the validity and scope of a claim of confidentiality, the Court must construe the subsection (b)(4) exemption in light of its legislative intent. Bristol-Myers Company v. Federal Trade Com'n, 138 U.S.App.D.C. 22, 424 F.2d 935, 938 (1970). The Senate Reports on the Freedom of Information Act defined the purpose of this subsection as follows:

 
This exception is necessary to protect the confidentiality of information which is obtained by the Government through questionnaires or other inquiries, but which would customarily not be released to the public by the person from whom it was obtained. This would include business sales statistics, inventories, customer lists, and manufacturing processes. * * *

 S.Rep.No.813, 89th Cong., 1st Sess. 9 (1965). The House Reports state that the exemption

 
would also include information which is given to an agency in confidence, since a citizen must be able to confide in his Government. Moreover, where the Government has obligated itself in good faith not to disclose documents or information ...

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