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GREEN v. DEPARTMENT OF COMMER.

March 30, 1979

Mark GREEN et al., Plaintiffs,
v.
DEPARTMENT OF COMMERCE, Defendant



The opinion of the court was delivered by: RICHEY

FINDINGS OF FACT AND CONCLUSIONS OF LAW

Plaintiffs bring this suit, pursuant to the Freedom of Information Act, to compel the defendant Department of Commerce to produce certain reports which it received concerning boycott requests. Because the defendant has not shown that these documents fall within any statutory exemption, the Court finds that the Department of Commerce must produce them. However, some of these documents May contain confidential business information. In order to protect the submitters of this information, the Court will use its equity powers to order the defendant to publish a notice of disclosure; if an interested party submits a specific request for nondisclosure, then the status of the requested document under 5 U.S.C. § 552(b)(4), will be subject to reconsideration, first, by the parties and then, if necessary, by the Court.

 The Court applies the following legal principles:

 1. The elements of exemption 4 of the Freedom of Information Act, 5 U.S.C. § 552(b)(4) are: (a) the information must be financial or commercial in nature; (b) it must be obtained from a person; and (c) it must be confidential or privileged. The party asserting the exemption must prove its existence by a preponderance of the evidence.

 2. Commercial information is "confidential," if its disclosure is likely (a) to impair the Government's ability to obtain necessary information in the future; or (b) to cause substantial harm to the competitive position of the person from whom the information was obtained. National Parks and Conservation Association v. Kleppe, 178 U.S.App.D.C. 376, 380-81, 547 F.2d 673, 677-78 (1976) (National Parks II).

 4. In actions under 5 U.S.C. § 552(a), the Court's broad equity powers are not curtailed. See Renegotiation Board v. Bannercraft Clothing Corp., 415 U.S. 1, 18-20, 94 S. Ct. 1028, 39 L. Ed. 2d 123 (1974). The Court's general equity powers include the authority to compel disclosure, subject to pre-conditions designed to protect the interests of parties not before the Court.

 5. In American Jewish Congress v. Kreps, 187 U.S.App.D.C. 413, 421, n. 65, 574 F.2d 624, 632 n. 65 (1978), the Court of Appeals undermined the rationale of this Court's Memorandum Opinion of November 15, 1977. This memorandum opinion had upheld the Department's claim of exemption under 5 U.S.C. § 552(b)(3).

 A. FINDINGS OF FACT

 The plaintiffs' FOIA request calls for the production of approximately 62,000 "boycott reports." Relying on exemption 4, 5 U.S.C. § 552(b)(4), the defendant asserts that portions of these reports are "confidential" business information.

 At a trial held pursuant to National Association of Government Employees v. Campbell, 192 U.S.App.D.C. 369, 593 F.2d 1023 (1978), the defendant presented five witnesses who testified to the confidential nature of the documents at issue. In essence, they all agreed that Some of the 62,000 reports May be confidential, but that All of them can Not be so classified. Plaintiffs offered into evidence 33 documentary exhibits. These documents not only established their Prima facie case but also, included evidence of a sample test performed on boycott reports submitted to the defendant during the week of October 7 to 15, 1976. The defendant contacted the seven firms which had submitted a total of 17 reports during this week; the test revealed that six firms, which together had submitted a total of sixteen reports, did Not object to disclosure. Based on the documentary evidence, the testimony of the witnesses, and the facts stipulated to by the parties, the Court makes the following findings of fact:

 1. On March 14, 1975, the plaintiffs requested, pursuant to 5 U.S.C. § 552 Et seq., "all records in the possession of the Department of Commerce which relate to any request, demand or other pressure exerted in an effort to obtain or deter cooperation in a restrictive trade or business practice relating to an international boycott." Plaintiffs' Exhibit 1.

 2. On March 31, 1975, Rauer Meyer, Director of Export Administration, Department of Commerce (hereinafter "Commerce"), advised the plaintiffs that the information they sought was provided to Commerce by exporters, who are required to report boycott requests to the Department under § 4(b)(1) of the Export Administration Act of 1969, 50 U.S.C.App. § 2403(b)(1) (as amended). Plaintiffs' Exhibit 2. These reports are commonly referred to as "boycott reports."


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