Thus the Court concludes that the defendant and defendant-intervenors have successfully demonstrated that they are entitled to withhold the documents sought because it is confidential commercial information within the meaning of FOIA Exemption 4. While the plaintiff has valiantly attempted to raise a genuine dispute as to a material fact, it has failed to provide competent evidence that satisfies the requirements of Fed. R. Civ. P. 56.
(2) The Information that Was Voluntarily Provided Was Properly Withheld Because the Providers Would Not Customarily Release It to the Public
The government has demonstrated that the input information provided by switch vendors for use with the SCIS program is provided voluntarily by the switch vendors. Brown decl. P 22. While the plaintiff no longer seeks the input data itself, this information is essential to the outputs that are created. Therefore, at least some of the information sought can be considered "voluntarily" submitted.
To the extent that the information sought was submitted voluntarily, the material was properly withheld, because, as previously set forth in section II(B)(1), supra, it has been amply demonstrated that the switch vendors would not customarily release the information to the public. See generally First and Second Britt decls.
(3) In Addition, the Material Sought Was Properly Withheld Under Exemption 4 of the FOIA Because Its Disclosure Would Undermine the Effectiveness of the Government's ONA Program.
As an additional argument to support the invocation of FOIA Exemption 4, defendant argues that disclosure of the information sought would impair the effectiveness of its ONA program. Exemption 4 may be invoked where disclosure of the information would impair the effectiveness of a government program. See 9 to 5 Org. for Women Office Workers v. Board of Governors of the fed. Reserve Sys, 721 F.2d 1, 10 (1st Cir. 1983); National Parks at 770, n. 17. The defendant has shown that the implementation of ONA is a "significant" FCC priority, and is part of the Commission's efforts to prevent unreasonable and discriminatory service rates. Brown decl. P 21. The SCIS models have been critical to the review of these rates. Id. Switch vendors have indicated that if the information they provide were subject to release under the FOIA, they would be reluctant to supply the proprietary input data which is necessary for the functioning of the computer models. Id. Without the voluntary, confidential flow of information between switch vendors and Bellcore, the ability of the FCC to administer the ONA program would be impaired. It is doubtful that the FCC would have the authority to compel the production of the information that the switch vendors currently provide voluntarily. Brown decl. P 22. Therefore, should the plaintiff's FOIA request be granted, the switch vendors could decline to provide the information necessary to the effective use of the SCIS. The effectiveness of the ONA program as a whole would thereby be reduced. Id.
The plaintiff has offered no competent evidence to contest this argument. Therefore, the danger of impeding the effectiveness of the ONA program provides an additional reason for proper withholding of the information sought under Exemption 4 of the FOIA.
Accordingly, for all of the reasons previously stated herein, the Court concludes that the plaintiff's FOIA request was properly denied. Therefore the dispositive motions filed by the defendant and defendant-intervenors shall be granted, and plaintiff's motion for partial summary judgment shall be denied.
The Court shall issue an appropriate Order in accordance with this Memorandum Opinion on this date.
August 28, 1992
CHARLES R. RICHEY
UNITED STATES DISTRICT JUDGE
ORDER - August 31, 1992, Filed
In accordance with the Court's Memorandum Opinion, filed on this date and for the reasons stated therein, it is, by the Court, this 28th day of August, 1992,
ORDERED that the defendant's Motion for Summary Judgment, and the Motions for Summary Judgment filed by Defendant-Intervenors Bell Communications Research, Inc. ("Bellcore") and participating Bell Operating Companies ("BOCs"), U.S. West Communications, Inc. ("U.S. West"),
American Telephone and Telegraph Company ("AT&T"),
and Northern Telecom, Inc. shall be, and hereby are, GRANTED; and it is
FURTHER ORDERED that the plaintiff's Motion for Partial Summary Judgment shall be, and hereby is, DENIED; and it is
FURTHER ORDERED that all motions for leave to file supplemental pleadings, and all of defendant-intervenors motions for leave to file pleadings shall be, and hereby are, GRANTED; and it is
FURTHER ORDERED that the above-captioned case shall be, and hereby is, DISMISSED from the dockets of this Court.
CHARLES R. RICHEY
UNITED STATES DISTRICT JUDGE