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EXXON CORP. v. FTC
November 17, 1978
EXXON CORPORATION, Plaintiff,
FEDERAL TRADE COMMISSION et al., Defendants
The opinion of the court was delivered by: OBERDORFER
This case arises under the Freedom of Information Act ("FOIA").
Plaintiff Exxon requested documents from the Federal Trade Commission ("FTC") relating to an ongoing FTC adjudicative proceeding in which Exxon is a defendant. Plaintiff invokes this Court's jurisdiction pursuant to 5 U.S.C. § 552(a)(4)(B), challenging the thoroughness of the FTC's search for responsive documents and the FTC's refusal to disclose certain admittedly responsive material it does possess.
On July 18, 1973, the FTC issued a complaint against, I. a., Exxon Corporation (the "Exxon case"), alleging that anticompetitive conditions in the petroleum industry violate Section 5 of the Federal Trade Commission Act, 15 U.S.C. § 45 (1976).
The FTC has asserted without contradiction by plaintiff that the Exxon case is the largest case ever brought by the Commission. To aid the FTC in the prosecution of the Exxon case, the Commission's staff has retained a number of economic consultants to provide advice and assistance in developing litigation strategy and designing the effective use of resources devoted to the case. Among the products of this collaboration is a report prepared by a panel of economists (the "Final Economic Report"), described by the FTC as containing an "in-depth evaluation of aspects of the theory of the case and the evidence supporting these aspects, discussions of possible future litigation strategies, and areas of possible inquiry for further economic analysis." Document # 12, defendants' index.
The Exxon case is currently in the stage of pretrial discovery. On April 17, 1978, Exxon filed a motion with the administrative law judge in that case for issuance of a subpoena Duces tecum to direct complaint counsel to produce the Final Economic Report. Administrative Law Judge Berman denied Exxon's motion on the grounds that the economic report, containing assessments of strategy, evaluations and recommendations about theory development and discovery, was clearly attorney work product and therefore privileged.
Order of June 2, 1978, FTC Docket No. 8934, Berman, Administrative Law Judge.
Prior to the filing of its motion with the administrative law judge to obtain discovery of the Final Economic Report, Exxon, through counsel, had made a request to the FTC under FOIA for three categories of documents regarding the Exxon case or the issues of that case:
All documents which constitute, refer or relate to any oral or written communication . . . during the period January 1, 1977, to the date hereof
(a) between any Commissioner of the Federal Trade Commission . . . or any member of such Commissioner's staff, and any Federal Trade Commission employee . . .
(b) between any Commissioner of the Federal Trade Commission . . . or any member of such Commissioner's staff, and any private party . . .
(c) between any employee of the Federal Trade Commission who is directly or indirectly engaged in the pending FTC Docket No. 8934 adjudicative proceeding and any private party. . . . .
The FTC granted partial access to the documents responsive to Exxon's request.
Exxon appealed the partial denial to the General Counsel of the Federal Trade Commission. The General Counsel released additional documents (or portions thereof) and advised Exxon that the remaining documents (or portions thereof) were being withheld pursuant to exemptions 5, 7(A) and 7(D) of FOIA.
As a result of Exxon's October 25, 1977 FOIA request, the FTC located approximately 2,000 pages of responsive documents; of these, approximately 1,200 pages are on public record. Of the remaining 800 responsive pages, the FTC has released approximately 425 pages, or approximately 53% Of the responsive pages located that are not on the public record.
On March 24, 1978, Exxon filed the present complaint with this Court for injunctive relief, challenging the FTC's claims to exemption for the responsive documents withheld in whole or in part, including the Final Economic Report.
Defendants have provided an index of the 64 documents withheld in whole or in part, describing the portions withheld and the exemptions claimed.
Defendants have also produced an affidavit by Carol Thomas, Secretary of the Commission, describing and attesting to the adequacy of the FTC's search for responsive documents, and an affidavit by Roger Pool, complaint counsel in the Exxon case, further explaining defendants' reasons for claiming each exemption.
The index and affidavits provided by defendants are relatively detailed and nonconclusory. For example, document # 2 is described in defendants' index as follows:
(2) Undated. From economist. To Exxon panel and FTC staff. Analysis of one aspect of theory of case and role of government agencies in relation to that aspect, including characterization of conditions in petroleum industry, and suggestions for further information to be gathered.
Plaintiff has not alleged, nor has defendants' showing exhibited to the Court, anything other than good faith ...
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