This case is before the Court on the motion of plaintiff for summary judgment and defendant's motion to dismiss or in the alternative for summary judgment. This action is brought pursuant to the Freedom of Information Act, 5 U.S.C. § 552, and this Court has jurisdiction pursuant to 5 U.S.C. § 552(a) (3) of that Act. Plaintiff Ditlow seeks declaratory and injunctive relief, requiring defendant to produce and make available for copying and inspection the U.S. Customs Declaration (Customs Form 6059-B, November 1972) completed by all persons who entered the United States by air from points in Asia/Australia/Australasia between May 1, 1973, and September 1, 1974.
Plaintiff claims that he seeks the names and addresses appearing on the Customs Declarations "in order to fulfill his obligations as representative of the class of all passengers who were charged unlawful fares pursuant to the violations of law alleged in [another] action." The other action referred to by plaintiff is Civil Action 999-73 (D.D.C.), an antitrust action brought by plaintiff against Pan American World Airways Inc. and nine other airlines engaged in the transportation of passengers in the transpacific market. In that action plaintiff seeks to recover on his own behalf the sum of $125.40 and three-fold damages for each person who flew via the defendants' airlines between points in the United States and points in Asia/Australia/Australasia and islands in the Pacific during the identified period. The case was dismissed by this Court on August 7, 1973 for failure to state a claim upon which relief can be granted under the Sherman Antitrust Act. It is currently pending before the United States Court of Appeals, D.C. Circuit, No. 73-1936.
The defendant, Secretary of the Department of the Treasury, under whose jurisdiction falls the Bureau of Customs, and who has custody of the requested documents, opposes disclosure of this information on the grounds that such information is specifically exempted by sections 552(b) (4) and (b) (6)
of the Freedom of Information Act.
The material facts are these: all persons entering the United States are required to complete U.S. Customs Declaration form 6059-B, and these completed forms are kept in the possession of the Department of the Treasury. This form consists of one sheet of paper with inquiries on both sides. The front side requests the following information: (1) the name of the declarant; (2) the declarant's date of birth; (3) the vessel or airline and flight number on which declarant arrived; (4) the declarant's citizenship; (5) residency; (6) permanent address; (7) address while in the United States; (8) the name and relationship of accompanying family members; (9) whether or not declarant or anyone in declarant's party is carrying any agricultural or meat products or pets; (10) whether or not anyone is carrying over $5000 in coin, currency, or negotiable instruments; (11) a certification by declarant that all statements on the declaration are true, correct and complete; and, if declarant is a non-citizen, (12) requests the place his visa was issued and (13) the date it was issued. The back side of the form requests a detailed list of all articles acquired abroad which are in declarant's possession at the time of arrival, including price information on articles so acquired.
Plaintiff, through his attorney, requested access to the Customs Declaration forms in a letter to the regional commissioners of customs in Los Angeles and San Francisco, wherein plaintiff specified his particular interest in the names and addresses of the declarants. This request was denied by the Assistant Commissioner, Office of Regulations and Rulings, Department of the Treasury, Bureau of Customs, on the ground that the "declarations contain commercial or financial information which is privileged or confidential and, therefore, is exempt from disclosure under the provisions of 5 U.S.C. § 552(b) (4)" and parallel sections of the Customs Regulations. Plaintiff appealed this decision to the Commissioner, Bureau of Customs, and emphasized that the only information sought off the forms was the names and addresses of the declarants. The appeal was denied.
In denying the appeal, the Commissioner of Customs re-asserted the view that the information requested was exempt from disclosure under the provisions of 5 U.S.C. § 552(b) (4), stating:
"We interpret the terms 'commercial or financial information ' as used in the statute and in our regulations to include the fact of a person's arrival at a port in the United States from an overseas destination via a named air carrier, and we believe the fact of his arrival to be privileged or confidential."