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WILEY REIN & FIELDING v. U.S. DEPT. OF COMMER.

January 31, 1992

WILEY REIN & FIELDING, Plaintiff,
v.
U.S. DEPARTMENT OF COMMERCE, Defendant.



The opinion of the court was delivered by: STANLEY SPORKIN

 On December 20 of 1990, plaintiff filed a Freedom of Information Act (FOIA) request with the defendant, seeking a variety of documents relating to the Department's activities in connection with the Paris Air Show. The dispute with respect to all but one set of documents has been resolved. The parties have filed cross-motions for summary judgment, and as there is no genuine issue of material fact left in dispute, the case is appropriate for summary judgment.

 The Court held a hearing on October 30, 1991 where it was agreed by the parties that only one set of documents remained in contention. These documents are the "call sheets." Plaintiff's counsel described them as follows:

 Call sheets are notations made by the salesmen employed by the Department of Commerce when they call customers and we wanted those because they disclose the sales tactics being used by the Commerce Department . . . Transcript of Hearing, October 10, 1991, at 6.

 In Defendant's Statement of Material Facts, defendant explains that the information identifying who was called has been released to plaintiff; however, the "substance of the communication" has been withheld. The defendant claims that this information is protected by FOIA exemption 4, 5 U.S.C. § 552(b)(4) because the call sheets contain confidential information about private parties. The government takes the position that the information provided by the private parties is so closely intertwined with the information about the Department's solicitation that it cannot be redacted or otherwise separated to accommodate plaintiff's request. They also assert that the information was obtained from the private parties by the agency under assurances of confidentiality.

 In order to make a ruling, the Court has reviewed unredacted versions of the documents in question in camera. I am now prepared to give a decision.

 FOIA exemption 4 says that an agency need not disclose

 trade secrets, and commercial or financial information obtained from a person and privileged or confidential. 5 U.S.C. § 552(b)(4).

 The scope of exemption 4 has long been defined by National Parks and Conservation Ass'n v. Morton, 162 App. D.C. 223, 498 F.2d 765 (D.C.Cir. 1974). National Parks sets forth a two prong test for determining whether exemption 4 applies. A document may be withheld where to disclose it would either

 (a) "cause substantial harm to the competitive position of the person from whom the information was obtained."

 or

 (b) "impair the Government's ability to obtain necessary information in the future" 498 F.2d at 770.

 In this instance, there has been no showing that either the Government or the companies solicited would be hurt by disclosure of this information. A review of the call sheets evidences nothing that requires protection.

 Defendant has submitted a declaration from the Director of the Office of Aerospace Market Development, David C. ...


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