The opinion of the court was delivered by: OBERDORFER
This Memorandum records the Court's further consideration of this Freedom of Information Act ("FOIA")
case, in which plaintiff Exxon, a defendant in the case of In the Matter of Exxon Corporation, et al., FTC Docket No. 8934 (the "Exxon case"), has sought release of all documents in the possession of defendants regarding the Exxon case or the issues of that case.
On June 15, 1978, defendants moved to dismiss the complaint or, in the alternative, for summary judgment and accompanied their motion with a Vaughn index ("Index") of the documents withheld and supporting affidavits. In a Memorandum and Order filed November 17, 1978, the Court granted in part and retained under advisement in part defendants' motion for summary judgment, directing defendants to submit more detailed, supplemental affidavits in support of their motion. Defendants filed a second supplemental memorandum and two additional affidavits on January 15, 1979, and plaintiff filed its opposition thereto on February 13, 1979. In response to the Court's Order of May 14, 1979, defendants filed one additional affidavit on May 24, 1979. On the basis of the reasonably detailed affidavits and index submitted in apparent good faith by defendants, the Court will forego further In camera inspection of the documents withheld and proceed to summary judgment. Compare Mervin v. F.T.C., 192 U.S.App.D.C. 212, 217-218, 591 F.2d 821, 826-27 (1978); Bristol-Myers v. F.T.C., 194 U.S.App.D.C. 99, 110 at n. 23, 598 F.2d 18, 29 n. 23 (1978).
For the reasons set out below, defendants' motion for summary judgment is granted with respect to all but one portion of one document; the withheld paragraph of document 52 containing an opinion and recommendation of a Commission attorney shall be released to plaintiff pursuant to the accompanying Order.
In order to prevail on its motion for summary judgment in a FOIA suit, an agency defendant "must prove that each document that falls within the class requested either has been produced, is unidentifiable, or is wholly exempt from the Act's inspection requirements." National Cable Television Association, Inc. v. F.C.C., 156 U.S.App.D.C. 91, 94, 479 F.2d 183, 186 (1973). The adequacy of defendants' search for responsive documents has already been fully considered in the Court's Memorandum of November 17, 1978. See Memorandum of November 17, 1978, at pp. 10-11. Since neither the submissions of plaintiff nor the affidavits of defendants raise any new issue of inadequacy or bad faith in the search for responsive documents, the Court reaffirms that all reasonably responsive documents have been identified.
The remaining questions concern whether those portions of identified documents not released by defendants have been properly withheld pursuant to the exemptions in FOIA. For the purpose of reviewing the merits of defendants' motion, the Court will consider separately the four categories of documents set out in defendants' Vaughn index: Category A, consisting of documents prepared by a panel of economic consultants for the Federal Trade Commission (the "Commission") in connection with the Exxon case; Category B, consisting of documents prepared by the Commission staff for the panel of economic consultants; Category C, consisting of other communications between the Commission staff and economists; and Category D, consisting of internal memoranda of the Commission or its staff. After consideration of the application of FOIA exemptions, the issues of segregability and the affirmative indexing and disclosure provisions of 552(a)(2) will be separately addressed.
1. Category A Documents (Index Nos. 1-12)
Examination of defendants' Vaughn index and affidavit of Edward T. Colbert, a complaint counsel in the Exxon case (the "Colbert affidavit"), reveals that the only portions of the remaining 11 documents in Category A that have been disclosed to plaintiff consist of various charts taken from public sources, which complaint counsel has deemed would not disclose litigation strategy or the mental impressions of the consultants; all other portions of these documents, including the names of the consultants, have been withheld in reliance on claims of exemptions under subsections (b)(5)
The portions of the documents withheld were all prepared by economic panelists engaged by the Commission staff as consultants for the Exxon case. Colbert affidavit at 2. All of the documents relate, in some manner, to issues dealt with in the Final Economic Report. Id. The documents discuss legal and economic issues relevant to the litigation strategy of the Exxon case; they contain the economists' opinions and recommendations about the theory. All of the dated documents withheld were prepared after July 18, 1973, the date of filing of the complaint in the the Exxon case. The remaining four undated documents also appear, from defendants' index and the Colbert affidavit, to have been prepared after the filing of the complaint in the Exxon case.
The documents withheld in Category A are therefore entitled to exemption from disclosure as attorney "work product" under exemption (b)(5). Although prepared by outside consultants retained by the Commission, the documents nonetheless constitute intra-agency memoranda within the meaning of exemption (b)(5). See Soucie v. David, 145 U.S.App.D.C. 144, 448 F.2d 1067, 1078 n. 44 (1971). The documents were prepared at the direction of the Commission's attorneys after the complaint was issued in Exxon and for the specific purpose of analyzing aspects of the theory of the Exxon case. Accordingly, the substantive portions of documents in Category A withheld by defendants are exempt as attorney "work product," pursuant to exemption (b)(5). See Bristol-Myers v. F.T.C., 194 U.S.App.D.C. 99, at 104 - 111, 598 F.2d 18, at 23-30 (1978); Mervin v. F.T.C., 192 U.S.App.D.C. at 217-218, 591 at 826-27 (1978); Exxon v. F.T.C., supra, 466 F. Supp. at 1099.
Defendants have also withheld the names of the economists on the economic panel, pursuant to exemption (b)(7)(A). Defendants maintain that each of the economists is sufficiently well known to have such a specific area of expertise and point of view that disclosure of their identities would reveal significant aspects of the Exxon case theory selected by the staff attorneys for analysis. Colbert affidavit at 3; Affidavit of Roger B. Pool, (former) complaint counsel in the Exxon case (the "Pool affidavit") at 4.
The attorney "work product" privilege includes "material which might disclose an attorney's appraisal of factual evidence." Mervin v. F.T.C., supra, 192 U.S.App.D.C. at 217, 591 F.2d at 826; See also Montrose Chemical Corp. v. Train, 160 U.S.App.D.C. 270, 491 F.2d 63, 67-71 (1974). Defendants' concern that identification of the economic panelists could expose significant aspects of the Commission's theory of the Exxon case seems plausible in the context of this intensely litigated matter.
Accordingly, the names of the economists are exempt from disclosure under exemption (b)(5) as attorney "work product." This disposition makes it unnecessary to reach defendants' contention that the names of the economists are part of "investigatory records," exempt pursuant to exemption (b)(7)(A). But compare n. 9, Infra.
2. Category B. Documents (Index Nos. 13-25)
The portions of the documents withheld by defendants in Category B were prepared by complaint counsel or Commission staff working on the Exxon case and contain factual summaries, questions, analysis and theory produced in connection with the development of the case. All but two of the documents bear a date after the date of filing of the complaint in that case. The remaining two documents, Index Nos. 13 and 17, are undated. Their descriptions show, however, that they were written after the filing of the Exxon complaint.
Defendants' index and supporting affidavits demonstrate that the withheld portions of Category B documents are attorney "work product". For example, documents 13 and 14 were
"prepared by complaint counsel to provide the economic panelists with the background and information necessary to place the Exxon case in its proper perspective and to acquaint the economists with the nature of the evidence to be gathered."
Colbert affidavit at 5. The only portions of documents 13 and 14 which have been withheld contain "staff analysis of the information and provide insights into litigation strategy." Colbert affidavit, Id.
The documents in Category B fall well within the category of "memoranda prepared by an attorney in contemplation of litigation which sets forth the attorney's theory of the case and his litigation strategy." NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 154, 95 S. Ct. 1504, 1518, 44 L. Ed. 2d 29 (1965). Accordingly, all portions of the documents withheld are exempt from disclosure pursuant to exemption (b)(5).
3. Category C. Documents (Index Nos. 26-55)
Documents in Category C consist mainly of diverse communications pertaining to the Exxon case between economic consultants and the Commission staff. These communications differ from the documents in Category A in that they are unrelated to the Final Economic Report. Documents 26 and 34 are letters about the economic theory and litigation strategy of the Exxon case from Commission staff attorneys to economic consultants retained by the Commission for advice in the case. Colbert affidavit at 7-8. The substantive portions withheld from document 26 contain an "explanation of the focus of a meeting to review certain areas of the theory of the case." Index at # 26. The withheld portions of document 34 "contain a description of the projects being worked on by various staff members and their relationship to the theory of the case." Index at # 34. They consist of "an explanation of the direction and focus of the staff's efforts in relation to specific areas of the case theory," together with the attorney-author's "opinions as to the significance of certain parts of the theory, and an outline of part of the staff's litigation strategy." Colbert affidavit at 8. The withheld portions of both documents 26 and 34 are exempt from disclosure under exemption (b)(5) as attorney "work product". See Bristol-Myers, supra, 194 U.S.App.D.C. 99, at 104 - 111, 598 F.2d 18 at 23-30; Mervin, supra, 192 U.S.App.D.C. at 217-18, 591 F.2d at 826-27; See also 716, Supra.
The names of the addressee economists have also been withheld by defendants. Colbert affidavit at 7 and 8. The economists' names could be bright guides to defendants' theory of the Exxon case, particularly if disclosed to this sophisticated plaintiff. Defendants are therefore entitled to withhold those names pursuant to the attorney "work product" privilege of exemption (b)(5). See 718, Supra; Bristol-Myers, id.; Mervin, id.
Documents 27-31, 35-40, and 42-47 are letters from an economic consultant to a staff attorney with whom the consultant was working on the Exxon case. Defendants' affidavits disclose that withheld portions of these documents contain the consultant's preliminary impressions and recommendations with respect to the Exxon case.
Colbert affidavit at 7. Accordingly, the withheld portions of these documents are exempt from disclosure under exemption (b)(5) as attorney "work product". See Bristol-Myers, id.; Mervin, id.; see also, 716, Supra.
Documents 32, 41 and 48-51 are letters to and from staff members and economic consultants. Colbert affidavit at 7. The only portion of these documents withheld are the names of the economists referred to in the letters. Defendants are entitled to withhold these names under exemption (b)(5) as part of the ...