confidential. This finding rested primarily on the testimony of the numerous expert witnesses who testified regarding both the contents of these reports and the types of commercial data which may be deemed "confidential." It was also based on the results of a test sample, taken from reports filed between October 7 and 15, 1976.
Defendant asserts that because some of the 62,000 reports contain confidential information, all reports may be withheld. The Court, however, cannot accept defendant's construction of the FOIA. It holds, instead, that, under the Act, severable, non-exempt material must be disclosed.
Defendant also reasserts its claim that disclosure of the boycott requests would impair the government's ability to obtain necessary information in the future. Again, the Court is unpersuaded. First, because the Court has found that most of the records do not contain confidential business data, it finds further that their release is not likely to intimidate exporters into non-compliance. Second, defendant originally assured boycott report submitters that their reports would not be disclosed; breach of this "promise" of confidentiality is not a sufficient basis for holding that future report gathering will be impaired. Defendant's argument on this point amounts to simple bootstrapping. In essence, it claims that an unwarranted, albeit good faith, assurance of confidentiality may serve as the basis for a finding that the assurance must be honored, lest the ability of the government to gather future information be impaired. To accept defendant's contention, would create a gap in the FOIA large enough to eviscerate the Act: what submission could not be accompanied by "assurances" of confidentiality and thereby, be asserted to fall within the scope of 5 U.S.C. § 552(b)(4)? Thus, the Court concluded that defendant's mere promise of confidentiality could not serve as the sole basis for withholding documents under 5 U.S.C. § 552(b)(4). Finally, the Court notes defendant's evidence on this point was vague and conclusory and, as a result, the Court's findings of March 30, 1979, rejected all of defendant's factual assertions concerning the impairment of its ability to gather future boycott reports. 468 F. Supp. at 694.
In light of the foregoing, the Court declines to modify it findings of fact and conclusions of law of March 30, 1979, 468 F. Supp. 691.
III. THE COURT'S NOTICE REQUIREMENT MUST BE MODIFIED.
Although the Court has decided to stand by its decision to award judgment to plaintiff, the Court believes that its original order must be modified in light of intervening precedent.
Specifically, the Court concludes that the notice requirement imposed in its original order should be modified. The Court's order of March 30, 1979, required defendant to notify all submitters of the potential disclosure of their boycott reports. This notice was designed to give these individuals an opportunity to object and, perhaps, prevent disclosure. Plaintiff had earlier indicated an intent not to dispute serious claims of confidentiality made by individual submitters. This notice procedure, however, would appear to grant FOIA plaintiffs a mechanism by which the Act could be used to impede disclosure. Yet, in Chrysler Corp. v. Brown, 441 U.S. 281, 99 S. Ct. 1705, 60 L. Ed. 2d 208 (1979), the Supreme Court ruled that the FOIA could not be used by private plaintiffs to bar government release of exempted documents. The Court concluded that the FOIA exemptions could not be used to enjoin agency disclosure; thus, the government, if it chose, could release exempted records, unless such release was barred by some other statute. In light of Chrysler, the Court concludes that the question of pre-disclosure notice must be left entirely to defendant's discretion. The Court will permit notice, if defendant so desires, but it will compel neither the notice itself nor its form. Thus, although the Court believes that defendant's proposed notice is completely inaccurate, this matter is one which defendant must resolve. The Court, of course, shall not be bound by defendant's representations. Of course, if defendant elects to forego notice, the documents must be disclosed promptly. The Court's original notice requirement was designed to protect both the defendant's interests and the interests of the submitters, but the FOIA apparently places both matters in the hands of defendant.
Defendant, however, is not entitled to employ the notice to delay unduly plaintiff's access to the requested documents. To prevent such delay, the Court shall establish the following procedural deadlines. Defendant shall inform the Court of its decision on the matter of notice within ten days of the date of the order accompanying this opinion; notice, if any, shall issue within fifteen days of the date of the order. Submitters who oppose disclosure must object within thirty days of the issuance of notice. In addition, if defendant elects to issue notice, the parties shall be ordered to confer within fifty- five days of the date of this order and, further, within ten days of that conference to submit a joint stipulation regarding the boycott reports specifying: a) the boycott reports no longer sought by plaintiff and b) the boycott reports claimed exempt by individual submitters and still sought by plaintiff. In the event that defendant elects to forego notice, defendant shall produce the requested documents within thirty days.
IV. FINAL JUDGMENT SHALL BE ISSUED IN PLAINTIFF'S FAVOR AFTER THE DOCUMENTS WHICH ARE CONFIDENTIAL HAVE BEEN SPECIFIED.
After defendant has filed the report to the Court required by the first deadline, the Court shall issue a further order setting forth the timetables herein listed, but referring solely to the course of action chosen by defendant i. e., notice or direct release. If defendant elects to issue notice, the Court shall enter judgment in plaintiff's favor once all questions of confidentiality have been resolved. In other words, after all of the boycott reports which must be disclosed have been identified, the Court shall issue a judgment in favor of plaintiff. Of course, if defendant elects to forego notice, the Court shall promptly enter judgment in favor of plaintiff.
An order in accordance with the foregoing shall be issued even date herewith.