Commission's footwear and apparel files for the purpose of investigating possible violations of state antitrust statutes. They have agreed to hold that portion of the documentation which the Commission has determined falls within 5 U.S.C. § 552(b)(4) in confidence, not releasing it to the public without the consent of the Commission. The Commission has agreed to provide plaintiffs with ten days notice prior to public release.
Conclusions of Law
1. This Court has jurisdiction over this action under 28 U.S.C. § 1331. Sears, Roebuck, Inc. v. GSA, 553 F.2d 1378 (D.C. Cir. 1977).
2. This Court has limited jurisdiction to award the equitable relief of a preliminary injunction. The criteria for the grant of the extraordinary relief of a preliminary injunction are well-established. Washington Metropolitan Transit Authority v. Holiday Tours, Inc., 559 F.2d 841 (D.C. Cir. 1977); Virginia Petroleum Jobbers Association v. Federal Power Commission, 259 F.2d 921 (D.C. Cir. 1958); Perry v. Perry, 190 F.2d 601 (D.C. Cir. 1951).First, plaintiffs bear the burden of showing a substantial likelihood of success on the merits. Second, plaintiffs must demonstrate that they will sustain irreparable injury. Third, plaintiffs must demonstrate that a grant of equitable relief will not substantially harm other interested parties.Fourth, plaintiffs must also demonstrate that injunctive relief will not be contrary to the public interest.
3. Plaintiffs have not met their burden of proof under these criteria.
4. Even if the Interco documents may be properly classified as confidential commercial or financial information within the meaning of Exemption (b)(4) of the Freedom of Information Act (FOIA), 5 U.S.C. § 552(b)(4), the Commission is not requied to claim this exemption in response to a FOIA request by state attorneys general. Charles River Park "A" Inc. v. HUD, 519 F.2d 935, 941 (D.C. Cir. 1975); Sears, Roebuck, Inc. v. GSA, 553 F.2d 1378 (D.C. Cir. 1977).
5. Section 46(f) of the Federal Trade Commission Act, 15 U.S.C. § 46(f), which grants the Commission wide discretion to release documents except for trade secrets and lists of customers, also does not preclude the release of Interco documents to state attorneys general.
6. The release of Interco documents to state attorneys general for the purpose of investigating possible illegal competitive practices is not a release to the "public" within the meaning of either 5 U.S.C. § 552(a) or 15 U.S.C.§ 46(f) where the state attorneys general have given the Commission reasonable assurances that these documents will not be generally released to the public. Cf. Exxon Corp. v. FTC, 589 F.2d 582 (D.C. Cir. 1978); Ashland Oil, Inc. v. FTC, 548 F.2d 977 (D.C. Cir. 1976).
7. Therefore, the Commission is empowered under the FOIA, 5 U.S.C. § 552(a) and under section 46(f) of the Federal Trade Commission Act, 15 U.S.C. § 46(f), to release all the documents in its custody and control, including documents containing trade secrets and customer lists to the state attorneys general.
8. Plaintiffs also have not demonstrated that they will suffer irreparable injury if the documents are released. The documents at issue are three or four years old, and are being released to the state attorneys general under confidentiality restrictions. Injunctive relief is not appropriate to prevent the possible occurrence of an event at some indefinite future time. Ashland Oil, Inc. v. FTC, 548 F.2d 977 (D.C. Cir. 1976).
9. A grant of injunctive relief would be contrary to the interests of other parties, particularly to the interest expressed by stated attorneys general. Plaintiffs have entered into a consent order before the Commission for certain antitrust violations, namely resale price maintenance. The states accordingly have a legitimate reason to investigate the extent to which -- if at all -- plaintiffs have violated their laws.
10. Finally, there is the public interest in vindicating the policies which underlie the FOIA and section 46(f) of the Federal Trade Commission Act. These statutes reflect a concern that government documents should, to the fullest extent possible, be disclosed to the public. Moreover, there is a substantial public interest in preventing duplication of the investigatory efforts among states which have sought to obtain the Interco documents.
11. For the foregoing reasons, plaintiffs have failed to carry their burden of proving that the circumstances warrant issuance of a preliminary injunction. Accordingly, by separate order of this date, plaintiffs' motion for a preliminary injunction is denied.
© 1992-2004 VersusLaw Inc.