injunction, we held that § 6(f) of the Federal Trade Commission Act, 15 U.S.C. § 46(f), authorized the Commission to make non-public disclosures for law enforcement purposes, of confidential information, including trade secrets and names of customers. More specifically, we found that the release of such documents "to state attorneys general for the purpose of investigating illegal competitive practices is not a release to the "public' within the meaning of either 5 U.S.C. § 552(a) and 15 U.S.C. § 46(f) where state attorneys general have given reasonable assurances that these documents will not be generally released to the public," citing Ashland and Exxon cases. We did not determine whether such documents, in fact, contained "trade secrets" or "names of customers." The record showed merely that the parties had agreed that some of the material supplied to the Commission was confidential information within the meaning of 5 U.S.C. § 552(b)(4). See Findings of Fact at 11. Instead, we emphasized the non-public nature of the disclosure, irrespective of the contents of the documents.
To place this litigation in context, the Commission, after an extensive investigation commenced in August, 1976 of Interco's practices in the footwear and apparel industries to determine possible antitrust violations, in July, 1978, accepted a proposed consent order with Interco and placed it on the public record for comment. At the same time, in order to facilitate comment on the proposed order, the Commission made public by placing in the public file the bulk of the documents in the footwear file. Documents in the apparel file were not placed in the public record because of certain on-going investigations of other apparel companies. It was at this point that various state attorneys general, wishing to determine whether Interco had violated the antitrust laws of their respective states, asked for the disclosure, on a confidential basis, of documents in the non-public files. In August, 1978, the Commission's general counsel, acting pursuant to delegated authority (16 C.F.R. § 4.11(b)) and after determining that access was in accord with Commission policy to cooperate with other government agencies engaged in law enforcement (16 C.F.R. § 4.6), indicated his intention to make the disclosure requested. Interco, in a complaint filed on September 6, 1978 in the United States District Court for the Eastern District of Missouri and transferred on December 29, 1978 to this court, sought to enjoin the disclosure to any state attorney general of "general confidential commercial and financial information" in the Commission's files relating to Interco.
(Verified Complaint, p. 13, P 5). In support of its complaint, plaintiff relied upon § 6(f) of the Federal Trade Commission Act, the Freedom of Information Act, 5 U.S.C. § 552(b)(4) and the federal criminal statute, 18 U.S.C. § 1905. (Verified Complaint, p. 11, P 23).
In its motion for a preliminary injunction filed January 31, 1979, Interco describes the information the disclosure of which it sought to enjoin as follows: "(1) customer names and trade secrets; (2) other confidential business and financial information; and (3) intra-agency memoranda, inter-agency memoranda, interview reports, and other documents which the FTC has previously determined not to release in response to other FOIA requests." (Memorandum in Support of Motion for a Preliminary Injunction, p. 9). Interco devotes the bulk of its ensuing argument on the non-disclosure of trade secrets and names of customers; lesser space concerns confidential information and other non-public information. Interco's emphasis on "trade secrets and names of customers" undoubtedly reflects the fact that the Commission under § 6(f) has broad authority to disclose other confidential information "as it shall deem expedient in the public interest . . . ." In response to Interco's motion, the defendant's position, in substance, is and has always been that Interco has failed to prove that information in the files at issue contains "trade secrets" or "names of customers" and because the proposed limited disclosure to state attorneys general does not violate § 6(f).
Following remand by the Court of Appeals on May 17, 1979, the defendant's general counsel concluded that his prior decision to make release to state attorneys general "should be referred to the Commission for reconsideration in the light of Chrysler and the Court of Appeals' order and suggested that the district court defer making any findings until the Commission reconsidered the matter and made a statement." We accepted such suggestion.
On November 9, 1979, the Commission filed a lengthy expression of policy entitled Statement Concerning Nonpublic Disclosures to State Attorneys General of Information Obtained by the Commission with supporting appendices, affidavits, and attachments. There was also submitted to us for in camera, ex parte examination unexpurgated versions of Attachments A-F to the Affidavit of Richard Gately, Appendix B to the Commission Statement. Mr. Gately was managing attorney on the Commission's footwear investigation. The Commission Statement is part of the record.
In affirming the general counsel's determination to release the information in dispute, the Commission summarized its ultimate position in the following language:
Specifically, we conclude that commercial and financial information about Interco, including information pertaining to Interco's sales, is not a "trade secret' within the meaning of the exception to the authority granted by Section 6(f) and that identities of stores carrying Interco's footwear and apparel products are not "names of customers' within the meaning of that exception. Accordingly, we do not reach the question of the Commission's authority to make nonpublic disclosure of trade secrets or names of customers.
Commission Statement, p. 5.
Prior to issuing its Statement and in order to determine what might be confidential in the footwear and apparel files, Commission staff on July 16, 1979 requested Interco to respond to the following questions:
1. What, if any, Interco documents contain new ideas for new products or merchandizing strategies?