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October 11, 1974

HENRY A. KISSINGER, Individually and As Secretary of State of the United States; and WILLIAM E. SIMON, Individually and as Secretary of the Treasury of the United States; and VERNON D. ACREE, Individually and as Commissioner of Customs of the United States, Defendants

The opinion of the court was delivered by: GASCH


 This is an action seeking mandamus and injunctive relief against Henry A. Kissinger, individually and as Secretary of State; William E. Simon, individually and as Secretary of the Treasury; and Vernon D. Acree, individually and as Commissioner of Customs of the United States. It seeks to prevent disclosure by the Customs Service of certain information to the Mexican Government. The matter is now before the Court on plaintiffs' motion for a preliminary injunction. Plaintiffs' motion for a temporary restraining order was previously denied by the Motions Judge of this Court. *fn1"


 Plaintiffs herein are Neal-Cooper Grain Company, an Illinois corporation, and Mr. Albert Louis Hastings, an individual, of Brownsville, Texas. Neal-Cooper Grain Company (Neal-Cooper) is engaged in the importation of certain goods and commodities from Mexico. *fn2" Mr. Hastings is Vice-President of Daniel B. Hastings, Inc., a licensed customshouse doing business in Customs District 23 (Brownsville, Texas). Pursuant to his business duties and to the wishes of Neal-Cooper, his client, Hastings prepared and filed with the Customs Service certain documents which were required in order to obtain permission for the importation of fertilizer by Neal-Cooper. Additional information was later supplied at the request of the Customs Service.

 Plaintiffs assert that the information provided to the Customs Service is confidential because it contains commercial or financial information or relates to trade secrets, processes, operations, style of work, identity, confidential statistical data, amount or source of income and profit, loss and expenditure. Plaintiffs contend that this data is protected from disclosure by 18 U.S.C. § 1905 (1970) *fn3" and by 19 C.F.R. § 103.10(c), (d), (g). *fn4" They claim that dissemination of this information to other persons or organizations is prohibited.

 The Customs Service, however, has released some of this information to officers or agents of the Government of Mexico. *fn5" The Government states that this disclosure was undertaken in response to a request from Mexican authorities made pursuant to an informal information-exchange agreement concluded at meetings between high officials of the Customs Services of the United States and Mexico. *fn6" At the hearing it developed that this agreement was not embodied in a formal treaty or other international agreement, although it may have been reduced to written form. *fn7"

 In response to the motion for preliminary injunction, the Government filed an opposition and a motion to dismiss the action, asserting a three-fold attack upon the claim. First, the Government says that the disclosure of the documents and information is not prohibited by law but is in fact authorized by the Freedom of Information Act. Second, it says that this release of information lies beyond the review of this Court since it occurs under an informal international agreement. The matter is thus one of foreign relations, and the foreign relations of the United States are entrusted solely to the Executive Branch. Third, the Government raises the defense of unclean hands, and alleges that it operates to bar all relief herein.


 The Government motion to dismiss was filed and served upon the plaintiffs on the date of the hearing in this case. Plaintiffs were of course not prepared to respond to the motion at the hearing. The time specified by our Rules as that in which to file opposition to a motion has not yet elapsed. *fn8" In these circumstances, the Court would normally be unwilling to consider the motion to dismiss. *fn9" At argument the Government acceded to this position but pointed out that the Court could dismiss the matter sua sponte if it found that it had no subject matter jurisdiction owing to the involvement of foreign relations.

 It is true beyond peradventure that the conduct of our foreign relations is solely in the hands of the President. United States v. Curtiss-Wright Export Corp., 299 U.S. 304, 319, 81 L. Ed. 255, 57 S. Ct. 216 (1936). This power extends, of course, to the making of treaties with the advice and consent of the Senate; *fn10" but it also extends to the making of international agreements which do not constitute treaties in the constitutional sense. *fn11" This agreement, however, was not made by the President but by representatives of the Customs Service. The question arises whether these representatives had the appropriate authority, delegated from the President, to conclude such an agreement. If they did not, then the accord in question may not constitute an international agreement in the legal sense. *fn12" Hence the situation here may not rise to the level of "foreign relations." In any event, the Court will reserve on the motion to dismiss in order to permit plaintiffs an opportunity to reply thereto.


 A. Standard for a Preliminary Injunction.

 The Court comes now to the preliminary injunction. In considering this, the Court is guided by the standards set forth in Virginia Petroleum Jobbers Assoc. v. Federal Power Comm., 104 U.S.App.D.C. 106, 259 F.2d 921 (1958). There the Court of Appeals stated the four factors which should influence a court's determination of the propriety of extraordinary relief. These are: 1) whether the petitioner has made a strong showing that it is likely to prevail on the merits; 2) whether the petitioner has shown that irreparable harm would follow the denial of the relief requested; 3) whether the issuance of an injunction would substantially harm other parties interested in the proceedings; and 4) where lies the public interest. *fn13"

 B. Chance of Prevailing on the Merits.

 (1) The Freedom of Information Act.

 Turning first to the likelihood of plaintiffs' prevailing on the merits, it is the contention of plaintiffs that 18 U.S.C. § 1905 (1970) prohibits disclosure of information such as was furnished by them to the Customs Service unless such disclosure is otherwise authorized by law. They further contend that disclosure is prohibited by 19 C.F.R. § 103.10(c), (d), (g). *fn14" The Government contravenes this, saying that the Freedom of Information Act *fn15" is such "other law" authorizing disclosure and that the plaintiffs are in any event barred from relief by the "clean hands" doctrine.

 The courts in this Circuit appear to consider that the Freedom of Information Act (FOIA) would provide the legal authorization to disclose within the meaning of 18 U.S.C. § 1905. Thus, in Robertson v. Butterfield, 162 U.S. App. D.C. 298, 498 F.2d 1031, the Court said:


18 U.S.C. § 1905 is a criminal statute prohibiting unauthorized disclosure of any information by a federal employee. There is nothing in the section which prevents the operation of the Information Act. It does not fall within the ambit of exemption 3. [Citations omitted]. *fn16"

  Similarly this Court has twice concluded that Section 1905 does not operate to hinder the FOIA. *fn17" Indeed, M. A. Schapiro & Co. v. Securities Exchange Comm. *fn18" seems to imply directly that the FOIA is "other law" which would authorize disclosure of material that might otherwise be subject to 18 U.S.C. § 1905. *fn19"

 The appropriate conclusion appears to be that the FOIA would permit the disclosure of this information unless an exemption to disclosure is applicable. Plaintiffs contend, however, that the FOIA is not applicable at all to this case since disclosure is not sought here but is sought to be prevented. To support this theory, plaintiffs rely upon the decision of this Court in Charles River Park "A", Inc. v. Department of H.U.D., 360 F. Supp. 212 (D.D.C. 1973).

 In Charles River, the Court considered a suit by a corporation seeking to prevent disclosure by HUD of certain information to third parties who had requested it pursuant to the FOIA. *fn20" There, too, the plaintiffs apparently sought to interpose the prohibition of 18 U.S.C. § 1905. The defendant agency argued alternatively both that the FOIA compelled disclosure and that the FOIA had no application to the case. *fn21" The Court held that the FOIA did not apply to the case because it was passed for the benefit of parties seeking disclosure, apparently concluding that it thus had no relevance to a claim seeking to bar disclosure. *fn22"

 Charles River was one of the first "reverse-FOIA" suits to come to the courts. Developments since that time have, in the opinion of the Court, made it clear that the FOIA does apply to such matters. In National Parks & Conservation Assoc. v. Morton, *fn23" plaintiffs sought to compel disclosure of information which had been supplied to the government on a confidential basis. The District Court had granted summary judgment to defendant on the basis of the confidentiality exemption to the FOIA. The Court of Appeals remanded, saying that the lower Court must examine the material to determine if the informational disclosure would either impair the Government's ability to obtain information in the future or harm the competitive position of the supplier of information. *fn24" In so doing, the Court recognized both that the policy of the FOIA was to encourage disclosure and that the purpose of the confidentiality exemption was to protect the rights of suppliers of information. *fn25" After Morton, there would seem little doubt that the FOIA does apply to a suit seeking to prevent disclosure. *fn26"

  The Court must now decide whether the request herein, made by or on behalf of the Mexican Government, may be a request within the purview of the FOIA. The Act states, in relevant part:


[Each] agency, on request for identifiable records made in accordance with published rules stating the time, place, fees to the extent authorized by statute, and procedure to be followed, shall make the records promptly available to any person.27

 A person is:


[An] individual, partnership, corporation, association, or public or private organization other than an agency. *fn28"

 A foreign government or an instrumentality thereof would appear to be a "public or private organization" within the terms of the Act. This conclusion is supported by the fact that the Customs Regulations implementing disclosure policy under the FOIA clearly contemplate requests from foreign governments. *fn29"

 The question thus resolves itself into whether disclosure is inappropriate under the Act or its implementing regulations. The exemptions of the FOIA are to be narrowly construed. Robertson v. Butterfield, 162 U.S. App. D.C. 298, 498 F.2d 1031, 1032 (1974); Vaughn v. Rosen, 157 U.S.App.D.C. 340, 343, 484 F.2d 820, 823 (1973), cert. denied sub. nom. Rosen v. Vaughn, 415 U.S. 977, 39 L. Ed. 2d 873, 94 S. Ct. 1564 (1974). Plaintiffs here rely on exemptions (b)(3) and (b)(4), which read as follows:


(b) This section does not apply to matters that are --


* * *


(3) specifically exempted from disclosure by statute;


(4) trade secrets and commercial or financial information obtained from a person and privileged or confidential; . . . . *fn30"

 The "ordinary meaning of the language of Exemption (3) is that the statute therein referred to must itself specify the documents or categories of documents it authorizes to be withheld from public scrutiny." *fn31" The law in this Circuit, as stated supra, appears to be that 18 U.S.C. § 1905 is not sufficiently specific to come within Exemption (3). *fn32" No more need be said on that score.

 Exemption (4) is the remaining support on which plaintiffs rely. The terms of the statute, as set forth supra, require that information properly within the exception must relate to trade secrets and commercial or financial information. It is not convincingly asserted that the material here is "trade secrets"; but it seems clear that the information provided to Customs did relate to commercial or financial information. *fn33" However, the statute requires the material to be "privileged or confidential" if it is to be within Exemption (4).

 Information is confidential within the meaning of the exemption only if disclosure is likely to have either of the following effects: 1) impairment of the Government's ability to obtain necessary information in the future or 2) causation of substantial harm to the competitive position of the person from whom the information was obtained. *fn34" Since the information in question, or most of it, is required by law to be furnished to the Government, there is little danger that disclosure will impair the Government's ability to obtain this data in the future.

 It is the duty of this Court to determine if any of the materials in question are confidential within the meaning of the Act. *fn35" Yet the papers before the Court are devoid of any showing of confidentiality beyond certain bare assertions found in the complaint and in Mr. Hastings' Affidavit. This Court cannot conclude from the present record that the information is confidential or is likely to be shown to be so. Hence, the Court cannot consider it likely that these materials will be shown to be within Exemption (4).

 Plaintiffs also contend that disclosure is barred by the Customs Regulations. The Regulations set forth in 19 C.F.R. § 103 were promulgated pursuant to the command of the FOIA and set forth the procedures by which information may be obtained from the Customs Service. Certain of these Regulations set forth classes of documents which are exempt from disclosure and on certain subsections of the exemption regulations plaintiffs rely. *fn36" The Regulations, however, clearly state that the Customs Service will disclose information which it may lawfully withhold if such disclosure is in the public interest. *fn37" Moreover, in the discussion supra, the Court concluded that the law is to the effect that 18 U.S.C. § 1905 would not be a statute within exemption (3) and would not impair the working of the FOIA and that there has been no showing of confidentiality within the meaning of the statute. The Court thinks that the Customs Service has discretion to release its own investigatory files, at least where there is no real showing that the contents thereof would harm innocent parties. Accordingly, reliance on 19 C.F.R. § 103.10 would seem to be misplaced.

 Plaintiffs alleged at argument that disclosure should be halted because the Customs Service had not complied with its own Regulations requiring all foreign government requests to be forwarded to Washington for a decision on disclosure. 19 C.F.R. § 103.2(g). They assert that these regulations have the force of law and govern the activities of the Service. While this is doubtless true in regard to those regulations which govern the activities of the Service in relation to outside parties, the Court has difficulty in concluding that a regulation governing purely internal activities and processes cannot be waived. This is not, for example, a regulation which affects the method used to compute duties on certain objects. It is merely an internal guideline which delineates the appropriate steps in the decision process. In this connection the Court also notes: First, the statement of the Government at argument that the request may have been forwarded by telephone to Washington and second, that the agreement to honor such requests which was made between high-level representatives of the two Customs Services *fn38" may well constitute a blanket approval from headquarters of such requests.

 (2) Clean Hands.

 As has been seen, the chance of plaintiffs successfully establishing their statutory grounds for relief does not appear to be high. Even should they do so, however, they would then have to surmount the defense of "unclean hands" which is interposed by the Government. The doctrine of "unclean hands" is not a rigid one. It is one committed to the sound discretion of the court and its purpose is to advance justice. Precision Instrument Mfg. Co. v. Automotive Maint. Machinery Co., 324 U.S. 806, 89 L. Ed. 1381, 65 S. Ct. 993 (1945); Johnson v. Yellow Cab Transit Co., 321 U.S. 383, 88 L. Ed. 814, 64 S. Ct. 622 (1944). The doctrine finds its roots in the ancient idea that equity is an instrument for affirmatively enforcing the requirements of conscience and good faith. Precision Instrument Mfg. Co., supra, at 814. It closes the doors of equity to one who has acted inequitably or with bad faith relative to the matter in which he seeks relief. Id. Equity does not require blamelessness in regard to other matters, but does require that one seeking relief shall have acted fairly and without fraud or deceit as to the controversy at issue. Id. at 814-15.

 Here the Government asserts that the fertilizer in question may have been imported by plaintiffs in violation of Mexican law prohibiting the export of such commodities. *fn39" The Government also asserts that it is now investigating possible criminal violations of United States law arising from the same importation. The Court thinks that these facts, if established, are sufficiently related to this claim as to raise effectively the defense of "unclean hands."

 Plaintiffs cite Johnson v. Yellow Cab Transit Co., supra, as a case "on all fours" with the present case. They claim that Johnson stands for the proposition that "unclean hands" cannot be successfully urged where it is based on unproved allegations of violations of law. The Court does not view Johnson as controlling in the circumstances of this case.

 In Johnson, Oklahoma authorities had seized a shipment of liquor which was in transit across the state. The shipment was consigned to the officers club at the Government reservation of Ft. Sill. The District Court, after full trial, enjoined the officials and ordered the liquor returned. The Supreme Court affirmed on the basis that: 1) Federal law controlled on Ft. Sill and there were no Federal anti-liquor laws of any kind; 2) the question whether state "dry laws" controlled in the absence of Federal law was a highly debatable one; 3) the party plaintiff before the Court was not one whose interest was really engaged in the determination of this debatable point and the truly interested parties had not been joined; 4) hence, there was no clear violation of law and no fair means of finally determining the issue by litigation.

 In the present case, the Court is considering a preliminary injunction and must estimate chances of success. Here the Government has stated, by means of Mr. Dennis' affidavit, that Mexican law prohibits exportation of fertilizer of the type here involved. The affidavit also alleged that the fertilizer may have been sold to Mexico pursuant to the AID program and may have been stolen from the Mexican Government. Because of the press of time, the Government was unable to produce the Mexican law in question or establish beyond doubt the theft of AID materials. The existence of the Mexican law, however, has not been effectively contravened. *fn40" In our case, should these assertions be shown at trial to be true, serious violations of foreign law would be established. This would distinguish the case from Johnson. In the circumstances, the Court must conclude that there is little hope of surmounting the defense.

 In summation, then, the Court deems it probable that the FOIA will apply here and will authorize disclosure of the information. Even if it does not, the defense of "unclean hands" may well preclude relief. Plaintiffs have not shown a reasonable probability of prevailing on the merits.

 C. Irreparable Harm.

 Plaintiffs have not made a convincing showing of irreparable harm. Mr. Hastings, in his affidavit, states that release of the information will threaten his livelihood by causing customers to cease lawful import activities. The complaint contains only a bare allegation of irreparable harm. At argument counsel stated that the revelation of price, source of supply and other information in the documents was irreparable harm. Counsel urged that it would create a "poor climate" for Hastings' business and that the mere violation of the law is an irreparable harm.

 Counsel's statements ignore the fact that disclosure will be to neither public nor competitors but to an investigatory agency of another government. This would seem unlikely to injure the honest business of anyone. The Court is also at a loss to understand how cooperation in an investigation of a possible violation of law could harm Hastings. Dismay should result only to dishonest individuals who fear disclosure. Finally, the Court cannot agree that there has been a violation of law, much less that any violation has wreaked injury on plaintiffs.

 D. Balancing the Harms.

 In balancing the harms which might be inflicted by the grant or denial of a preliminary injunction, the Court notes that the grant of the injunction might well cripple the Mexican investigation and seriously embarrass relations between the two Customs Services and perhaps embarrass relations between the two Governments. In addition, an injunction might well cause the disruption of the flow of information to the Customs Service from Mexico -- information which is being used to investigate possible violations of United States law. *fn41"

 Against this the Court has only vague allegations that the refusal of an injunction might cause the loss of some customers and a general "poor climate" for Hastings' business. The scale thus tips toward denial of an injunction.

 E. Public Interest.

 It seems to the Court that the public interest here is on the side of the Government. The public has an interest in the proper functioning of its own customs laws, a functioning to which the exchange of information with Mexico contributes. The public has an interest in not permitting the violation with impunity of the export and other laws of a sister Republic by citizens or businesses of the United States. The public interest, then, militates against the grant of this injunction.


 The Court having determined, for the reasons foregoing, that a preliminary injunction should not issue in this case, it is by the Court this 11th day of October, 1974,

 ORDERED that plaintiffs' motion for a preliminary injunction be, and the same hereby is, denied.

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