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ASH GROVE CEMENT CO. v. FTC

October 24, 1973

Ash Grove Cement Co.
v.
Federal Trade Commission, et al.


Richey, D.J.


The opinion of the court was delivered by: RICHEY

RICHEY, D.J.

 I. Background

 This cause came before the Court for hearing on plaintiff Ash Grove Cement Company's Motion for Entry of a Third Memorandum Order, which would require defendant Federal Trade Commission to produce for in camera inspection and pursuant to the Freedom of Information Act certain documents in the FTC's possession, and for hearing on Defendants' Renewed Motion for Summary Judgment, which would have the effect of precluding the in camera inspection and production of said documents. Plaintiff is currently the respondent in an FTC adjudicative proceeding relating to Plaintiff's possible violation of the antitrust laws. In that proceeding, Plaintiff has asserted the defense that the Commission had illegally prejudged and decided in advance all of the allegations of the adjudicative complaint. Plaintiff further asserts that the documents sought in the instant lawsuit are necessary to substantiate that defense. This Court has already entered two Memorandum Orders directing that certain steps be taken by Defendants with regard to the documents in question. *fn1" Upon consideration of the instant Motion, the Court has determined that Defendants must be required to produce some, but not all, of the documents requested for the Court's in camera inspection.

 II. Issues

 There are four categories of documents being sought by the Plaintiff. These categories consist of: (1) internal memoranda of the FTC; (2) FTC investigative files; (3) directive-type minutes from members of the Commission to members of the Commission staff; and (4) "chronological minutes", which are essentially accounts of the Commission's executive meetings and the deliberations of the Commission. Defendants have identified and Plaintiff has specified with particularity 42 documents sought in the first category, 4 in the second and 17 in the third. The particular documents sought in the fourth category have not been delineated by either party. The sole issue with respect to all of these documents is whether they fall within one of the nine exemptions listed in the Freedom of Information Act, 5 U.S.C. § 552(b).

 III. Discussion

 A. The Commission Has Described Its Internal Memoranda With Sufficient Particularity To Demonstrate Exemption From Production Under The FOIA.

 Under its prior Orders, the Court requested the Commission attempt a review, deletion and disclosure with respect to documents previously listed by the Commission as intra-agency memoranda for which it had claimed exemption under the FOIA, 5 U.S.C. § 552(b)(5). *fn2" Many of those documents were later released to the Plaintiff's counsel for their inspection. Those memoranda which the Commission still believes to be confidential under the fifth statutory exemption and relevant case law, and which the Commission has refused to produce, have been listed and described in an affidavit filed by Charles H. Koch, an attorney in the Commission's Office of General Counsel. *fn3" Out of this group, Plaintiff has narrowed its request to 42 documents.

 Since the oral hearing, the Court has again carefully reviewed the affidavit containing the description of these documents. Both parties agree that the documents are correctly categorized as inter- or intra-agency memoranda, but Plaintiff contends that they must nonetheless be produced under the rationale that the Commission may have relied upon the documents in determining policies and interpretations which became in effect "secret law". Documents constituting such "secret law" must be produced under the case law developed by the Court of Appeals for the District of Columbia. *fn4" Moreover, Plaintiff contends that the description of the documents contained in the Koch affidavit are so conclusory as to prevent the Court's accurate determination of their nature without first conducting an in camera inspection.

 The Supreme Court in Environmental Protection Agency v. Mink held that in camera inspection of agency documents need not be automatic if the agency can demonstrate through affidavit that the documents sought are exempt under the FOIA. *fn5" In the instant case, the affidavit submitted on behalf of the Commission lists each document and describes in general terms its content. These descriptions are more than mere conclusions. They provide the Court with enough information to enable it to determine which division of the agency (and in many instances which individual within the agency) authored the memo, to which division (or individual) the memo was sent, and the particular areas of policy or other matters which were discussed. The Court is of the opinion that these descriptions are sufficiently detailed to demonstrate that the memos are in fact expressions of opinions and internal discussions of policy. It is exactly these types of memoranda which the fifth exemption was designed to protect from disclosure. *fn6" The Court believes that to require a more detailed affidavit from the Defendants would be tantamount to requiring full disclosure of the substance of the documents. *fn7" Therefore, unless these documents contain "secret law", they are exempt.

 As to whether the memos constitute the basis for or contain "secret law", the Court starts with the assertion in Mr. Koch's affidavit that "none of the documents reveal 'secret law' which is binding on the agency, and none of them constitutes the basis for Commission decisions". *fn8" While this assertion might not of itself be sufficient to preclude further examination, there are other factors which support the truth of this statement. The most important of these is that none of the memoranda sought under this category were issued by the Commission itself. Rather, the memos were for the most part communications between staff members, staff members and the Commission, and individual Commissioners and the Commission. There is no indication in the record that any one or more of the memos sought by Plaintiff were used to formulate or contain "secret law", and indeed, the Court discerns no likelihood that such is the case in view of the fact that none of these memoranda were issued by the Commission. If the Commission has in fact developed any "secret law", it would in all probability have been developed through study of a multitude of sources, no one of which would constitute an accurate picture of the final result. Moreover, in the event that an examination of other Commission documents reveals that the memos in this category do contain "secret law", the Court can at that time inspect the memo or memos to which reference has been made. This was the general procedure set forth by the Court of Appeals in the Sterling case, and the Court believes that such a procedure is both appropriate and applicable here. *fn9" Accordingly, the Court will not at this time require the production of documents listed in category one for in camera inspection. *fn10"

 B. The Court Will Require the FTC To Produce For In Camera Inspection Those Memoranda Which It Has Labelled As Investigatory Files.

 The Freedom of Information Act, 5 U.S.C. § 552(b) (7), exempts from disclosure "investigatory files compiled for law enforcement purposes except to the extent available by law to a party other than an agency". The Defendants claim that this portion of the statute creates a blanket exemption for all ...


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