the deposition of Mr. Mitchell came within the scope of these requests.
The Arizona Attorney General sought this material for use in two antitrust suits: a federal suit in which Martin Marietta is named a codefendant, In Re Cement and Concrete Antitrust Litigation, No. Civ. 76-488A PHX CAM (D.Ariz.), and a state antitrust suit, Arizona ex rel. Babbitt v. Portland Cement Ass'n, No. 0339216. The federal suit is a class action under the Clayton and Sherman Acts involving twenty-five plaintiffs including the states of Arizona, Colorado, Oregon, and private litigants, all of whom are purchasers of cement. Mr. Reed represents the interests of all state and local governmental entities in Arizona that purchased cement from defendants and is also serving as plaintiffs' liaison counsel. The other action is brought in state court pursuant to the Uniform State Antitrust Act,
which provides that the state attorney general may bring an action in the name of the state for injunctive relief and civil penalties for violation of state antitrust laws. Martin Marietta is not presently a defendant in the state action.
Following receipt of Mr. Reed's request, the FTC solicited Martin Marietta's comments on and objections to release of the transcript of Mr. Mitchell's deposition. In response, Martin Marietta made two submissions
in which it alleged that the deposition was exempt from disclosure under 5 U.S.C. §§ 552(b)(4), (7) (1976). On November 13, 1978, the Acting General Counsel of the FTC informed Martin Marietta and the Arizona Attorney General of his decision to release the deposition. He further stated that actual release of the document would not be made for ten days. The decision to release was made pursuant to the discretionary authority of the Commission, conferred by section 6(f) of the Federal Trade Commission Act,
and in furtherance of the Commission's policy, expressed in section 4.6 of its Rules of Practice, of cooperation with other government agencies in law enforcement efforts. No mention was made of the Freedom of Information Act as a basis for the release.
On November 20, 1978, attorneys for Martin Marietta met with Commission staff to object to the release of the transcript without excision of confidential information and trade secrets. The staff agreed to postpone release of the information until December 8, 1978, and requested a memorandum detailing Martin Marietta's objections. Martin Marietta complied on November 29, 1978 and argued that the Commission policy of cooperation with governmental entities did not cover the request by the Arizona Attorney General, who was acting in a private capacity as a purchaser of cement in the federal lawsuit. Martin Marietta also contended that the Commission was required to consider the FOIA and the various FOIA exemptions before releasing the transcript.
Subsequently, the Commission's Deputy General Counsel agreed to defer release of the depositions in order to provide the Arizona Attorney General with an opportunity to respond to Martin Marietta's arguments. The attorney general did so and Martin Marietta filed a reply. On January 10, 1979, the Commission notified Martin Marietta of its decision to release the transcript in five working days from the date of the letter.
The Commission decided to grant discretionary release of the transcript on the ground that both the federal and state court actions "were brought pursuant to the authority conferred on the Attorney General (of Arizona) by the State of Arizona to conduct investigations and bring actions on the State's behalf for the enforcement of state or federal antitrust laws." The Commission therefore reasoned that the Attorney General was acting in the public interest regardless of whether his capacity be characterized as governmental or proprietary and concluded that application of Rule 4.6 was appropriate.
The proposed release was conditioned on the following requirement of confidentiality: "The information is being released to you for purposes of the antitrust litigation currently being handled by your office and with the understanding that you will preserve its confidentiality, and in particular, that it will not be disclosed to any person other than employees of your office." The letter announcing release of the information also stated that if the requested materials became the subject of discovery requests in the litigation, all parties would have a "full opportunity to argue for confidential treatment, pursuant to a protective order entered in that litigation or otherwise, of any material whose disclosure might result in competitive injury."
On January 16, 1979 plaintiff filed this lawsuit, seeking a temporary restraining order and a preliminary injunction to prevent the Commission from releasing the transcript. Before the matter came on for a hearing, the parties stipulated that the transcript would not be released until a judgment on the merits of this lawsuit or October 1, 1979, whichever occurred first, and that plaintiff would withdraw its motions for a temporary restraining order and a preliminary injunction.
In its complaint Martin Marietta seeks a declaratory judgment that the Mitchell deposition is exempt from disclosure under the Freedom of Information Act ("FOIA") because it contains confidential business information and information specifically exempted from disclosure by statute. 5 U.S.C. § 552(b)(3), (4) (1976).
Subsequent to oral argument of the cross-motions for summary judgment in this case, the Supreme Court issued its decision in Chrysler Corp. v. Brown, 441 U.S. 281, 99 S. Ct. 1705, 60 L. Ed. 2d 208 (1979).
In Chrysler the Supreme Court reaffirmed the principle that the basic objective of the FOIA is disclosure. 99 S. Ct. at 1712. By providing limited exemptions in the FOIA from disclosure, the Court concluded Congress was concerned with the agency's need for confidentiality. Id. at 1713. The Court further found that agencies have discretion to disclose information that comes within the Act's exemptions and is precluded from mandatory disclosure. Id. The FOIA does not provide suppliers of information, such as business corporations, with a private right of action to enjoin an agency's decision to release the information. Id. at 1714.
The Supreme Court also refused to find a private right of action to prevent disclosure of information maintained by the government under the Trade Secrets Act, 18 U.S.C. § 1905 (1976). Id. at 1725-1726. The Court did conclude, however, that judicial review of an agency's decision to release information is available to the supplier of that information as a person "adversely affected or aggrieved" by agency action under section 10 of the Administrative Procedure Act.
Id. at 1726-1727. The agency action would be subject to review to determine whether disclosure of the information would be an abuse of the agency's discretion. See 5 U.S.C. §§ 701-06 (1976).
The United States Court of Appeals for this Circuit had previously recognized that if the information sought falls within the specific prohibitions of section 1905, it would be an abuse of discretion for an agency to release the information. Charles River Park "A," Inc. v. HUD, 171 U.S.App.D.C. 286, 293, 519 F.2d 935, 942 (1975). The Trade Secrets Act provides:
Whoever, being an officer or employee of the United States or of any department or agency thereof, publishes, divulges, discloses, or makes known in any manner or to any extent not authorized by law any information . . . (which) concerns or relates to the trade secrets, processes, operations, style of work, or apparatus, or to the identity, confidential statistical data, amount or source of any income, profits, losses, or expenditures of any person, firm, partnership, corporation, or association . . . shall be fined not more than $ 1,000, or imprisoned not more than one year, or both; and shall be removed from office or employment.
18 U.S.C. § 1905 (1976). Because this prohibition applies only to disclosures "not authorized by law," the FTC argues that section 1905 is not applicable to the challenged disclosure on the ground that release of the Mitchell transcript is authorized by section 6(f) of the Federal Trade Commission Act, 15 U.S.C. § 46(f) (1976).
Section 6(f) provides that the Commission shall have power
to make public from time to time such portions of the information obtained by it hereunder, except trade secrets and names of customers, as it shall deem expedient in the public interest; and to make annual and special reports to the Congress and to submit therewith recommendations for additional legislation; and to provide for the publication of its reports and decisions in such form and manner as may be best adapted for public information and use.