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EHRINGHAUS v. FTC

December 23, 1980

J. C. B. EHRINGHAUS, Jr.
v.
FEDERAL TRADE COMMISSION



The opinion of the court was delivered by: GREEN

MEMORANDUM OPINION

This action arises under the Freedom of Information Act (FOIA), 5 U.S.C. § 552. Plaintiff seeks access to records of the Federal Trade Commission (FTC) concerning a study of the effectiveness of health warning information contained in cigarette advertising done for the FTC by Burke Marketing Research (Burke Study).

Defendant withholds the 29 documents relating to the study, claiming each is exempt from disclosure pursuant to exemptions 5 and 7(A) of FOIA. This Court finds the documents are properly withheld on the basis of exemption 7(A), and does not reach the merits of the claimed exemption 5.

 I.

 Plaintiff, J.C.B. Ehringhaus, is Senior Vice President and Counsel to the Tobacco Institute, a research corporation. On April 29, 1980, he filed the aforementioned FOIA request. The Secretary of the Commission denied access to the materials requested on May 21, 1980. On appeal, the Commission's Acting General Counsel determined all documents were exempt from mandatory disclosure pursuant to exemptions 5 and 7(A).

 On July 24, 1980, plaintiff filed his complaint with this Court. Defendant filed a Vaughn Index on September 16, 1980. The case is before the Court presently on cross-motions for summary judgment.

 Since 1965 the FTC has been charged with the specific responsibility to investigate and report annually to Congress on the effectiveness of cigarette labeling and current cigarette advertising practices. 15 U.S.C. § 1331 et seq. Pursuant to this authority, the FTC began an industry-wide investigation of cigarette manufacturers and others regarding their practices. The FTC's subpoenas were enforced in 1979. The District Court found they were reasonably relevant to the FTC's valid pre-complaint investigation of cigarette advertising. FTC v. Carter, 464 F. Supp. 633 (D.D.C.1979).

 The Burke Study is another part of the FTC's major investigation into cigarette advertising. It is not certain what the ultimate result of the study and investigation will be. However, an enforcement action for unfair trade practice pursuant to FTC Act § 5, 15 U.S.C. § 45, is anticipated as a likely result.

 The withheld documents deal with the nature of the Burke Study, a proposed study design, various modifications in the study's scope and content, its construction and the actual survey instruments. The specific issue the withholding presents with respect to exemption 7 is: whether, prior to filing a contemplated complaint alleging unfair advertising practices, the FTC must release materials pertaining to the study upon which the enforcement proceeding would be based.

 II.

 The basic policy of FOIA is to promote disclosure. However, in 5 U.S.C. § 552(b), Congress carefully delineated nine exemptions from the otherwise mandatory disclosure requirements. EPA v. Mink, 410 U.S. 73, 93 S. Ct. 827, 35 L. Ed. 2d 119 (1973); Dep't. of Air Force v. Rose, 425 U.S. 352, 96 S. Ct. 1592, 48 L. Ed. 2d 11 (1976).

 Under exemption 7(A) of the FOIA an agency may withhold

 
investigatory records compiled for law enforcement purposes, but only to the extent that the production of such records would (A) interfere with enforcement ...

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