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ASHLAND OIL, INC. v. FTC

February 2, 1976

ASHLAND OIL, INC., Plaintiff,
v.
FEDERAL TRADE COMMISSION, PAUL RAND DIXON, ACTING CHAIRMAN, M. ELIZABETH HANFORD, COMMISSIONER, STEPHEN A. NYE, COMMISSIONER, and CHARLES A. TOBIN, SECRETARY, Defendants, and JOHN E. MOSS, CHAIRMAN, SUBCOMMITTEE ON OVERSIGHT AND INVESTIGATIONS OF THE COMMITTEE ON INTERSTATE AND FOREIGN COMMERCE, UNITED STATES HOUSE OF REPRESENTATIVES, Intervenor



The opinion of the court was delivered by: CORCORAN

 HOWARD F. CORCORAN

 I. BACKGROUND

 A. The Action and Parties

 This civil action for declaratory and injunctive relief was commenced pursuant to Chapter 7 of the Administrative Procedure Act (5 U.S.C. § 701 et seq.) and 28 U.S.C. §§ 1331-32, 1337, 1361, 1651, and 2201-02. The amount in controversy, exclusive of interest and costs, is in excess of $10,000. Venue properly lies in this district by virtue of 28 U.S.C. § 1391(e)(1).

 The plaintiff, Ashland Oil, Inc. ("Ashland"), is incorporated under the laws of the State of Kentucky, with principal offices in Ashland, Kentucky. Plaintiff's business encompasses various aspects of the petroleum industry, including the exploration and development of oil and gas properties.

 Defendant Federal Trade Commission ("FTC") is a federal regulatory agency established under, operating pursuant to, and administering the Federal Trade Commission Act ("FTC Act") (15 U.S.C. § 41 et seq.). Paul Rand Dixon, Acting Chairman of the FTC, *fn1" and Charles A. Tobin, Secretary, as well as FTC Commissioners M. Elizabeth Hanford and Stephen A. Nye, have been named as defendants in their official capacities.

 John E. Moss is a member of the United States House of Representatives and Chairman of the Subcommittee on Oversight and Investigations of the House Interstate and Foreign Commerce Committee ("Subcommittee"). Congressman Moss has intervened of right in this action as party-defendant by virtue of Fed. R. Civ. P. 24 (a) and House Resolution 899 (94th Cong., 1st Sess.).

 On or about April 15, 1975, the FTC served upon the plaintiff a "Natural Gas Survey Special Report" order ("Special Report") issued pursuant to Section 6(b) of the FTC Act (15 U.S.C. § 46(b)). By this order, Ashland was required to file a "Special Report" and was advised that non-compliance would result in the imposition of penalties under applicable provisions of federal law. On August 27, 1975, Ashland responded by filing with the Commission a completed Special Report containing the information sought by the FTC. Included in the information submitted was highly sensitive competitive data detailing the company's reserve estimates for all of its natural gas leases and contracts nationwide. *fn2" Ashland's submission was accompanied by a letter from J. Creig Coogan, Vice President of Ashland Exploration Company (a division of Ashland Oil, Inc.) stating that the company's information on gas reserves was confidential and of a proprietary nature, such that disclosure would result in competitive injury and that such information was submitted to the Commission with the specific reservation that plaintiff could claim its right to have the materials therein provided "accorded confidential treatment and be protected from disclosure." (Plaintiff's Complaint, Exhibit AA).

 On October 6, 1975, Congressman John E. Moss, in his capacity as a member of Congress, requested the FTC to make available to him data gathered by the Commission pertaining to lease extensions on federal lands. (Id., Exhibit A). By letter dated October 24, 1975, Charles A. Tobin, Secretary of the Commission, denied the Congressman's request for the reason that the data sought constituted "trade secrets and commercial or financial information and geological and geophysical information and data, including maps, concerning wells" which were exempt from mandatory disclosure under the Freedom of Information Act (5 U.S.C. § 552(b)(4) and (b)(9)). Consequently, Secretary Tobin concluded that the Commission was without discretion to release such exempt records. (Id., Exhibit B).

 On October 29, 1975, Congressman Moss sent a second request to the FTC, but this time in his official capacity as Chairman of the Subcommittee on Oversight and Investigations of the House Committee on Interstate and Foreign Commerce. (Id., Exhibit C). Congressman Moss's letter noted that the Freedom of Information Act was not authority to withhold information from Congress, *fn3" and that this second request was made not in the Congressman's individual capacity, but "as Chairman of the Subcommittee on Oversight and Investigations" for the purpose of fulfilling the Subcommittee's general oversight responsibilities.

 The FTC treated Congressman Moss's second letter as a formal Congressional request and, by letter of November 18, 1975, advised the Congressman that the natural gas reserve data which he requested would be furnished on November 28, 1975. In this reply, Chairman Engman cautioned that several of the companies involved considered the data "competitively very sensitive and might constitute trade secrets which the Commission is prohibited from making public under Section 6(f) of the Federal Trade Commission Act," and that the U.S. Geological Survey also was "of the opinion that this is confidential, proprietary information." He went on to mention that the Commission continued to be involved in litigation with companies refusing to provide such data under the Special Report order. Therefore, Chairman Engman emphasized that:

 
As a result, your Subcommittee will receive data only from those companies which have voluntarily complied with the Commission's orders. This fact is not lost upon companies faced with information requests from the Commission and will do little to encourage voluntary compliance, especially if any sensitive information is made public.
 
Therefore, the Commission respectfully but strongly urges your Subcommittee to maintain the confidentiality of the information submitted in response to your request and in particular, the reserve estimates furnished in response to Question 5 of the Natural Gas Energy Study Order. (Id., Exhibit D).

 Ashland was advised of the Commission's decision on November 18, 1975. On November 21, 1975, plaintiff received written notice of the Commission's intention to disclose its reserve data to Congressman Moss's Subcommittee. (Id., Exhibit E). On the same day, Ashland was informed by telephone that the Commission intended to turn over the data to Congressman Moss on demand and would not be bound to the November 28th date mentioned in Chairman Engman's letter.

 This action was filed on November 24, 1975, and on that date, plaintiff moved for and was granted a temporary restraining order enjoining the Federal Trade Commission from releasing the information in issue, thereby preserving the status quo until the Court considered the merits of Ashland's claims. *fn4"

 On December 2, 1975, the Subcommittee authorized and the Chairman of the Interstate and Foreign Commerce Committee signed a subpoena duces tecum requiring FTC Chairman Engman to appear before the Subcommittee on December 3, 1975, and to bring with him

 
any and all records within the Federal Trade Commission's control or custody or within the Federal Trade Commission's means to produce appertaining to or involving oil and/or gas lease extensions on Federal lands, including Ashland Oil, Inc. and including all correspondence between the Federal Trade Commission and Ashland Oil, Inc. relating in any manner to agreements or proposed agreements to hold such records confidential or to give advance notice of the release thereof. (See H.R. Rep. No. 94-756, 94th Cong., 1st Sess., at 3-4 (1975)).

 By letter of December 3, 1975, Chairman Moss informed Mr. Engman that the Subcommittee planned "no enforcement action of this subpoena until after the Court has considered" the questions arising in this case. (Id., at 5).

 On December 18, 1975, the House of Representatives assented to House Resolution No. 899. (121 Cong. Rec. 12, 918-919 (daily ed. December 18, 1975)). Section 1 of the Resolution provides:

 
Resolved, That the chairman of the Subcommittee on Oversight and Investigations of the Committee on Interstate and Foreign Commerce is authorized to intervene and appear in the pending action entitled "Ashland Oil Incorporated, plaintiff against Federal Trade Commission, et al., defendant," Civil Action 75-1956, United States District Court for the District of Columbia on behalf of the Committee on Interstate and Foreign Commerce in order to secure information relating to natural gas reserves now in the possession of the Federal Trade Commission for the use of the committee and the House. (Emphasis supplied.)

 On January 16, 1976, after a hearing held in open court, we granted Congressman Moss's motion to intervene pursuant to Fed. R. Civ. P. 24(a).

 Plaintiff has moved for preliminary and permanent injunction. Defendants Moss and FTC have filed motions for summary judgment or, alternatively, to dismiss. The Court, sua sponte, advanced and consolidated the hearing on the merits of Ashland's complaint with that on ...


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