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DITLOW v. VOLPE

June 12, 1973

Clarence DITLOW and Ralph Nader
v.
John A. VOLPE, Secretary of Transportation, et al.


Aubrey E. Robinson, Jr., District Judge.


The opinion of the court was delivered by: ROBINSON, JR.

Aubrey E. Robinson, Jr., District Judge.

 This is an action under the Freedom of Information Act, 5 U.S.C. § 552, presently before the Court on cross-motions for summary judgment. Plaintiffs seek public disclosure of certain records of the National Highway Traffic Safety Administration (NHTSA) which relate to investigation of safety defects in new automobiles. Plaintiffs seek (1) all correspondence between NHTSA and the investigated party (i.e. auto manufacturer) in connection with pending safety defect investigations, (2) Book D of the submission of General Motors Corporation to NHTSA of October 1970, and (3) a Report of NHTSA's Office of Standards Enforcement concerning the enforceability of Federal Motor Vehicle Safety Standards. Items (2) and (3), Book D and the Report on standards enforceability, were examined by the Court in camera. The various legal contentions will be considered ad seriatim.

 I

 
Correspondence between NHTSA and Investigated Parties in connection with pending Defect Investigations.

 Defendants rely upon three separate exemptions to support the contention that this correspondence is exempt from disclosure under the Freedom of Information Act. The first claim is based on exemption 3, 5 U.S.C. § 552(b)(3), which protects matters "specifically exempted from disclosure by statute." Section 112(e) of the National Highway and Traffic Safety Act, 15 U.S.C. § 1401(e), provides that

 
All information reported to or otherwise obtained by the Secretary . . . pursuant to [safety defect investigations] which information contains or relates to a trade secret or other matter referred to in Section 1905, of Title 18, shall be considered confidential for the purpose of that section. . . .

 Section 1905 of Title 18 of the United States Code is the criminal provision authorizing punishment for disclosure "to any extent not authorized by law" by Federal employees of information obtained in the course of official duties concerning "trade secrets, processes, operations, style of work, or apparatus, or the identity, confidential statistical data, amount or source of any income, profits, losses, or expenditures" of any person. *fn1"

 The argument that Section 1905 is a blanket exception under exemption 3 of the Freedom of Information Act has been previously raised and rejected in this Circuit:

 
Unlike other statutes which specifically define the range of disclosable information, e.g. 26 U.S.C. § 6103 (1964), as amended (Supp. IV, 1969), Section 1905 merely creates a criminal sanction for the release of "confidential information." Since this type of information is already protected from disclosure under the Act by § 552(b)(4), Section 1905 should not be read to expand this exemption, especially because the Act requires that exemptions be narrowly construed. 5 U.S.C. § 552(c) (Supp. IV, 1969).

 Grumman Aircraft Engineering Corp. v. Renegotiation Board, 138 U.S. App. D.C. 147, 425 F.2d 578, 580 n. 5, (1970). *fn2" The question arises whether specific reference to Section 1905 in the National Highway and Traffic Safety Act, supra, dictates a different result. Section 112(e), however, creates, confidentiality only "for the purpose of that section," i.e. Section 1905. Congress thus intended to allow confidentiality only as already provided for in Section 1905. There is no indication in the statute or the legislative history *fn3" of intent to create a special, broader confidentiality for auto safety information than that available under exemption 4 of the Freedom of Information Act. Section 112(e) thus harmonizes with exemption 4 in protecting trade secrets and privileged or confidential financial or commercial information. In this case, exemption 3 is co-extensive with exemption 4, which is claimed by the Defendants as a separate ground for nondisclosure.

 Exemption 4, 5 U.S.C. § 552(b)(4), exempts from disclosure trade secrets and privileged or confidential commercial or financial information. These are separate elements and

 
this section exempts only (1) trade secrets and (2) information which is (a) commercial or financial, (b) obtained from a person, and (c) privileged or confidential. The exemption given by the Congress does not apply to information which does not satisfy the three requirements stated in the statute.

 Getman v. N.L.R.B., 146 U.S. App. D.C. 209, 450 F.2d 670, 673 (1971) quoting Consumers Union of United States, Inc. v. Veterans Administration, 301 F. Supp. 796, 802 (S.D.N.Y. 1969). Further, a bare claim or promise of confidentiality will not suffice *fn4" the materials sought must be "independently confidential" based on their contents, *fn5" i.e. not otherwise subject to public disclosure *fn6" ...


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