See Dresser Industries, Inc. v. United States, supra, 596 F.2d at 1237.
After reviewing the Exemption 7 claim made by the plaintiff and the action by the SEC, the Court concludes that the agency action was neither arbitrary nor capricious. The plaintiff simply presented no support for its request for exempt status. Moreover, there is no reason to believe on the record of this case that SEC would not have requested exemption if it determined that such action was warranted.
As to any claim made under Exemption 4, the Court agrees that the plaintiff has waived such a claim for several reasons: First, the plaintiff is well aware of its right to assert an Exemption 4 claim and has yet to do so. Second, SEC as early as April 22, 1981, requested the plaintiff to advise whether it intended to assert an Exemption 4 claim and stated that "in particular, it is frequently difficult for the FOIA Officer or the Commission to know whether Exemption 4 properly applies to requested information." Compl. Exhibit H. That request by SEC was reasonable and timely but plaintiff never responded. Third, plaintiff has also had since the date the suit was filed to assert an Exemption 4 claim. Fourth, the plaintiff has yet to assert an Exemption 4 claim. Plaintiff has had ample opportunity to assert a claim for trade secrets or confidentiality but has failed to file an appropriate claim. Thus, the Court concludes that it has waived that right. What has been said for Exemption 4, applies equally to any claim under 18 U.S.C. § 1905.
Plaintiff contends that the documents cannot be released until at least June 29, 1982, the last date upon which SEC can apply to the court in the Eastern District of Wisconsin for relief. See Compl. Exhibit A. Both SEC and Justice have reviewed the case and represent that they no longer have a law enforcement interest in the documents. Moreover, there is no reason to believe that plaintiff will violate the Consent Judgment. Accordingly, the Court concludes that the Consent Judgment is no bar to the immediate release of the documents.
Finally, the plaintiff argues that Fed.R.Crim.P. 6(e) prevents release of copies of documents which were submitted to the Grand Jury. This Court disagrees. The fact that a document may have been submitted to the Grand Jury does not mean that a copy of the document cannot be released under the FOIA since such a release in no way affects the secrecy of the Grand Jury proceedings. The fact that the document is one submitted to the Grand Jury should not be revealed to the requestor, and thus the secrecy of the Grand Jury is protected. Of course, any documents which are generated by the Grand Jury proceedings, such as a transcript of a witness' testimony, fall within the protection of Rule 6(e) and should not be released under the FOIA. Rather, the procedure outlined in Douglas Oil Company of California v. Petrol Stops Northwest, 441 U.S. 211, 99 S. Ct. 1667, 60 L. Ed. 2d 156 (1979) should be followed.
The Court concludes that the plaintiff has failed to state a claim upon which relief may be granted and accordingly, defendants' motion to dismiss should be granted.
An appropriate order has been entered.
© 1992-2004 VersusLaw Inc.