require only that the submitter be afforded "an opportunity to respond . . . no less than five days prior" to the disclosure of the information. 10 C.F.R. § 205.9(f)(2). The post-PRO procedures that in fact ensued here consisted of an exchange of a series of letters between the parties -- first establishing a timetable for the submission of further statements, and then addressing the merits. The procedures were informal, straightforward, and fast-paced, yet "they were not closed, unfair, or otherwise inadequate to the task of developing a factual record, as well as a record of [the] submitter['s] objections, based upon which one could decide rationally whether material is exempt from disclosure." National Organization for Women v. Social Security Admin., supra, 736 F.2d at 746. As noted, plaintiff, advised by competent counsel, should have been well aware of the specific factual showing that would have been necessary to establish a claim of confidentiality, and should have been aware that the need to make such a showing might arise. Moreover, if facts existed that plaintiff would indeed have submitted if more time were available, plaintiff could at least have made a specific proffer as to those facts, or could have submitted an affidavit indicating the presence of a genuine question as to whether such material facts existed and could be adduced. As actually occurred, however, plaintiff received all the time it requested -- i.e., until May 2, 1982 -- to state its justifications, and yet restricted itself solely to a lengthy discussion of the applicable legal standards and conclusory assertions that its claims of confidentiality in fact fit under those standards.
No additional information presented to this Court has provided any support to the contention that the agency procedures were inadequate or hindered plaintiff's ability to make the requisite factual showing. Plaintiff did submit, in the proceedings before this Court, an affidavit asserting that disclosure would cause it substantial competitive harm, but that affidavit, from plaintiff's president, is woefully conclusory, see Brief in Support of Motion for Preliminary Injunction and Declaratory Relief, Exhibit D, and utterly fails to indicate the existence of any further factual detail that could have been demonstrated if the agency procedures were fuller.4a In response to direct inquiry by the Court at oral argument, in addition, plaintiff's counsel failed to give any indication that, if this case were remanded to the agency, plaintiff would adduce any more in the way of facts than it already has. See Hearing of May 31, 1985, Transcript Excerpt at 2-6, 8-9.
Accordingly, there is no basis for holding that the agency procedures in this case were inadequate.
Plaintiff, thus, has made no showing of any likelihood that it might succeed on the merits. Neither has plaintiff shown that disclosure of the information at issue here would cause it any substantial harm. At the same time, the public interest plainly favors the disclosure of information relevant to a formal enforcement action. The balance of these factors weighs clearly against affording plaintiff the relief here sought. See Washington Metropolitan Area Transit Commission v. Holiday Tours, Inc., 182 U.S. App. D.C. 220, 559 F.2d 841 (D.C. Cir. 1977). An accompanying order will deny the motion for a preliminary injunction, and allow the disclosure of the information at issue in this case on the tenth day following entry of the order.
For reasons stated in an accompanying memorandum, it is this 30th day of June, 1985, hereby
ORDERED: that plaintiff's motion for a preliminary injunction should be, and is hereby, DENIED; and it is further
ORDERED and DECLARED: that the bar against public disclosure of the material at issue in this case imposed by the Order of May 8, 1985, should be, and is hereby, VACATED, and that the defendants may publicly release the information at issue in this case, as of the tenth day following the entry of this Order.
ORDER GRANTING MOTIONS FOR PROTECTIVE ORDERS
On May 14, 1985 and May 15, 1985, plaintiff submitted individual motions for protective orders to seal separate portions of the record. On or about 9:15 A.M. on May 31, 1985 -- the morning of the hearing on plaintiff's motion for a preliminary injunction and the day after plaintiff's reply papers were due -- plaintiff's counsel hand-delivered to chambers a further motion for a protective order to seal portions of a new, additional submission to the record: a May 30, 1985 affidavit of Coty R. Dupre, which was designated as Exhibit C to plaintiff's reply brief. Attached to the motion were redacted and unredacted versions of the affidavit. However, the papers thus hand-delivered to chambers did not contain any of the requisite file stamps signifying that the papers had been properly filed with or submitted to the clerk of the Court. It now appears that the motion and affidavit (both as redacted and as unredacted) were indeed filed with the Clerk, but that the Chambers notification of this fact was obscured by the failure to properly stamp the chambers' copies, which apparently resulted from the plaintiff's counsel's efforts to hand-deliver this late-filed submission to chambers prior to the hearing.
Pending further proceedings in this matter, the above-described motions shall be granted. Of course, the parties may at any time file any motion to vacate the protective orders entered in this action. Given that it is now apparent that the May 30, 1985 Affidavit of Coty R. Dupre was indeed submitted to the Clerk of Court, another order entered this date amends the Memorandum and Order of July 1, 1985 to reflect the Court's consideration of that affidavit.
Accordingly, it is this 2nd day of July, 1985, hereby
ORDERED: that the motions for protective order to seal filed by plaintiff on May 14, 1985; May 15, 1985; and May 31, 1985, should be and are hereby GRANTED.