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FISHER v. RENEGOTIATION BD.

March 16, 1973

Marilyn M. FISHER et al., Plaintiffs,
v.
The RENEGOTIATION BOARD, Defendant, and Chromalloy American Corporation, Intervenor Defendant


Curran, District Judge.


The opinion of the court was delivered by: CURRAN

This case is before the District Court on remand *fn1" from the United States Court of Appeals for the District of Columbia Circuit to determine, after an in camera inspection, if certain documents which The Renegotiation Board has withheld from the public are exempt from disclosure under the Freedom of Information Act. *fn2"

 Subsequent to the release of the opinion of the United States Court of Appeals, the Chromalloy American Corporation moved this court for permission to intervene as of right under Federal Rules of Civil Procedure 24(a)(2) and (3), averring that it was one of the eight corporations whose papers are the subject of the plaintiffs' request and that it would be adversely affected if the exempt status of the information which it was required to file with the Board were not preserved. Permission to intervene was granted.

 In accordance with a stipulation entered into by the plaintiffs, defendant and intervenor, sample copies of the documents were submitted to this court for in camera inspection.

 The Renegotiation Board is charged with the responsibility of eliminating excess profits earned on contracts between national defense contractors and the United States. Those holding contracts are required to submit to the Board forms detailing receipts, accruals, costs and profits relating to the performance of such contracts. If it appears from the reports filed that excessive profits may have been earned, the Board is authorized to enter into renegotiation proceedings to the end that an agreement may be reached with the contractor or sub-contractor with respect to the elimination of excess profits. If no agreement is reached, the Board may enter its own order determining the amount of excess profits. If this is done, a contractor may file a petition with the Court of Claims for a de novo proceeding to redetermine the amount of excess profits.

 Under the Freedom of Information Act each agency must make available to the public certain documents and papers unless they are specifically exempt from disclosure under the Act. *fn3"

 The Board's decisions to withhold information in the three categories are reviewed below.

 Category I

 Under Section 552(a)(2) of the Freedom of Information Act, each agency must make available for public inspection and copying in accordance with published rules inter alia, "final opinions, including concurring and dissenting opinions, as well as orders, made in the adjudication of cases . . .". Pursuant to this section, plaintiffs seek disclosure, for the period of July 1, 1964 through June 30, 1969, of certain unilateral Orders, Statements of Determination and Renegotiation Agreements, which all, unquestionably, come within the category of final opinions.

 A substantial number of these documents have been made available to the public. Over the five year period in suit, there are sixty-eight unilateral Orders of the Board, fifty-one of which were appealed to the Tax Court. Since the orders appealed were necessarily submitted, together with the petition, in the Tax Court, they became a part of the public court records. Similarly, six Statements of Determination in this period were prepared in cases which were appealed and hence became public court records.

 The Board contends that Exemption 4 of the Act applies to the other seventeen unilateral Orders and to the one hundred fifty-three Renegotiation Agreements. Exemption 4 protects from disclosure under the Act, "trade secrets and commercial or financial information obtained from a person and privileged or confidential". To preserve the interests of confidentiality, the Board struck identifying details before releasing the documents, with the exception of Exhibit A discussed infra. In Grumman Aircraft Engineering Corporation v. Renegotiation Board, *fn4" Exemption 4 was construed "to encompass only information received from persons outside the Government". The amount of excess profits is a determination made by the Board which applies its own accounting analysis to the information obtained from the contractors. The amount of excess profits is information from the Government and, therefore, not exempt. The Board must disclose completely the unilateral Orders.

 Like the unilateral Orders, the Renegotiation Agreements reflect the Board's conclusion of the sum of excess profits and, in addition, include a timetable for the corporation to disgorge these profits. These, too, must be made public without deletions.

 As to Exhibit A of the Agreement, the Board deleted the name, columns reflecting total sales, costs and profits, and non-renegotiable business. Exhibit A is attached to the Renegotiation Agreement and contains information taken directly from the corporation which is plainly "commercial or financial" profits and costs. In order to qualify for the exemption, information must be not only commercial or financial but also "privileged or confidential", Getman et al. v. National Labor Relations Board. *fn5" The Grumman court, supra, construed "confidential" to mean that "commercial or financial information which the contractor would not reveal to the public and therefore are exempt from disclosure or are subject to release only after appropriate deletions have been made". *fn6" This language was quoted with approval by the Court of Appeals in the instant case, at p. 114 of 473 F.2d.

 A bare claim of confidentiality is insufficient, M. A. Schapiro & Co. v. Securities & Exchange Commission. *fn7" However, sale statistics were specifically mentioned in both the Senate and House Reports on the Act as covered by Exemption 4, S. Rept. 1219, 88th Cong., 2d Sess. at 6, reiterated at S. Rept. 813, 89th Cong., 1st Sess. at 9; H. Rept. 1497, 89th Cong., 2d Sess. at 10. Moreover, in Sterling Drug, Inc. v. Federal Trade Commission, *fn8" the court held Exemption 4 applied to the documents involved because they contained business sales information. Sales statistics, including total net sales, total costs and expenses, and operating profits are the main substance of Exhibit A. All of the information withheld in Exhibit A is exempt ...


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