The opinion of the court was delivered by: GREEN
This matter is before the Court on defendants' motion for reconsideration of the decision of February 26, 1981 withholding in part and releasing in part records of the United States Customs Service (USCS) concerning its investigation of the value of tapered roller bearings and components imported from Japan. In its February 26 order, the Court released documents pertaining to the pre-January 1, 1973 period. The Court found that defendants had not met their burden of proof to establish that these pre-1973 documents contained material exempt pursuant to Exemptions 4 or 7 of the FOIA. 5 U.S.C. § 552(b) (4) and (7). Specifically, the Court found that the pre-1973 documents did not contain information whose release would be likely to cause substantial harm to the competitive position of the companies from which it was obtained, or would impair the government's ability to obtain similar information in the future.
Defendants have presented four new affidavits in support of their motion for reconsideration. These affidavits are written by executives of roller bearing companies who submitted the financial information to the USCS which is the subject of this lawsuit. As opposed to the affidavits submitted by defendants in support of their motion for summary judgment, these affidavits concern the particular information in dispute in this suit.
All four affiants assert substantial injury is likely to occur to their companies if the documents which the Court ordered released on February 26, 1981 are given to plaintiff. They make several compelling points:
(1) The pre-1973 information has commercial relevance today because it reveals distribution channels, market strategies, pricing structures and patterns of competition which have not changed significantly in the last decade.
(2) While competitors would not be wise to base their planning strategies for 1982 on this information alone, using it in conjunction with more current information could provide an accurate picture of today's marketing activities and competitive structure.
(4) The companies provided this information to USCS with the express understanding that it would remain confidential. If the information is released, these companies would be most reluctant to provide similar information to USCS in the future.
The Court finds these arguments persuasive. The release of the pre-January 1, 1973 information is likely to cause the same type of injuries which the release of the post-January 1, 1973 information would cause. It would allow competitors to discern the strengths and weaknesses of the marketing strategies of these companies and target their weak points for attack. Competitors also could imitate the successful policies of these companies. Further, customer relations likely would be disrupted by the breach of confidentiality and increased competition from competitors. The Court is no longer persuaded by plaintiff's argument that this "old" information is too antiquated and fragmented to be of use. The Court finds that it is likely that release of the pre-1973 information would (1) cause substantial harm to the competitive position of the companies from which it was obtained, and (2) impair the government's ability to obtain similar necessary information in the future.
In accordance with the above reasoning, the Court withholds the pre-1973 information pursuant to Exemption 4. An appropriate order is attached hereto.
Upon consideration of the defendants' motion for reconsideration and the opposition thereto and the entire record herein, it is by the Court this 22nd day of April 1981,
ORDERED that defendants' motion is granted; it is further
ORDERED that this Court's order of February 26, 1981 is vacated to the extent that judgment was in part granted to the plaintiff and information in documents 1-7, 10-12, 15-17, 19, 21-27, ...