FINDINGS OF FACT AND CONCLUSIONS OF LAW
Plaintiffs bring this suit, pursuant to the Freedom of Information Act, to compel the defendant Department of Commerce to produce certain reports which it received concerning boycott requests. Because the defendant has not shown that these documents fall within any statutory exemption, the Court finds that the Department of Commerce must produce them. However, some of these documents may contain confidential business information. In order to protect the submitters of this information, the Court will use its equity powers to order the defendant to publish a notice of disclosure; if an interested party submits a specific request for nondisclosure, then the status of the requested document under 5 U.S.C. § 552(b)(4), will be subject to reconsideration, first, by the parties and then, if necessary, by the Court.
The Court applies the following legal principles:
1. The elements of exemption 4 of the Freedom of Information Act, 5 U.S.C. § 552(b)(4) are: (a) the information must be financial or commercial in nature; (b) it must be obtained from a person; and (c) it must be confidential or privileged. The party asserting the exemption must prove its existence by a preponderance of the evidence.
2. Commercial information is “confidential,” if its disclosure is likely (a) to impair the Government’s ability to obtain necessary information in the future; or (b) to cause substantial harm to the competitive position of the person from whom the information was obtained.
National Parks and Conservation Association v. Kleppe,
3. Although
National Parks and Conservation Association v. Morton,
4. In actions under 5 U.S.C. § 552(a), the Court’s broad equity powers are not curtailed.
See Renegotiation Board v. Bannercraft Clothing Corp.,
5. In
American Jewish Congress v. Kreps,
A. FINDINGS OF FACT
The plaintiffs’ FOIA request calls for the production of approximately 62,000 “boycott reports.” Relying on exemption 4, 5 U.S.C. § 552(b)(4), the defendant asserts that portions of these reports are “confidential” business information.
At a trial held pursuant to
National Association of Government Employees v. Campbell,
1. On March 14, 1975, the plaintiffs requested, pursuant to 5 U.S.C. § 552 et seq., “all records in the possession of the Department of Commerce which relate to any request, demand or other pressure exerted in an effort to obtain or deter cooperation in a restrictive trade or business practice relating to an international boycott.” Plaintiffs’ Exhibit 1.
2. On March 31, 1975, Rauer Meyer, Director of Export Administration, Department of Commerce (hereinafter “Commerce”), advised the plaintiffs that the information they sought was provided to Commerce by exporters, who are required to report boycott requests to the Department under § 4(b)(1) of the Export Administration Act of 1969, 50 U.S.C.App. § 2403(b)(1) (as amended). Plaintiffs’ Exhibit 2. These reports are commonly referred to as “boycott reports.”
*694 3. A boycott report is a statement furnished to Commerce which reports a request for an action that has the effect of furthering or supporting a restrictive trade practice or boycott fostered by any foreign country against any country friendly to the United States. Generally, these reports contain the following information:
A) The name and address of the U.S. exporter submitting the report;
B) The date of the request;
C) The name of the country against which request is directed;
D) The country of the requestor;
E) The number of transactions to which restrictions were applicable;
F) The type of request received;
G) A general description of the types of commodities or technical data covered, and the total dollar value thereof (quantity, descriptions and price information);
H) A statement as to whether the United States exporter intends to comply with the request.
See, e. g., exhibit 2 attached to Plaintiffs’ Exhibit 12; Stipulation of Facts ¶ 20 (filed Feb. 8, 1979).
4. Defendant, relying on 5 U.S.C. § 552(b)(4), does not object to the disclosure of all the material contained in this report. It only objects to the disclosure of:
A) The name and address of the party making the request, and/or the name and address of the exporter but only where disclosure would reveal a customer or consignee of either the exporter or the submitter;
B) The quantity, description and value of the underlying commodity or technical data in its entirety, and
C) Any additional information contained on the form or attachments thereto to the extent that the additional information describes or reveals the transactional information of the nature described in 1 and 2 above. Commerce does not claim that any other information contained on the forms is confidential information within the meaning of exemption 4.
5. The information at issue is commercial or financial in nature.
6. It was obtained from a person.
7. The defendant has failed to show by a preponderance of the evidence that disclosure of each piece of information will cause substantial harm to the competitive position of the person submitting the report. All of the witnesses conceded that some of the information was not genuinely confidential; it might be either out of date, or already known to competitors, or concern a proposed transaction which was never consummated. Publication of such information could not conceivably harm the competitive position of the submitter. Clearly, confidentiality varies from report to report, and even from item to item. The results of the test sample indicate that most submitters do not object to disclosure of the information at issue. Plaintiffs’ Exhibits 17-33.
8. Disclosure of the information at issue is not likely to impair the Government’s ability to collect such information in the future. Because this data is not entirely confidential, disclosure will not deter individuals and firms from reporting it to the Government.
9. Disclosure of some of this information may cause competitive harm, e. g., Plaintiff’s Exhibit 17, but on the present record, the Court cannot determine which data will cause such an effect. The only way to protect parties who have submitted confidential data is to provide them with appropriate notice of the impending disclosure.
B. CONCLUSIONS OF LAW
In light of the foregoing, the Court makes the following conclusions of law:
1. The 62,000 boycott reports received by the defendant are not, in their entirety, confidential within the meaning of exemption 4, 5 U.S.C. § 552(b)(4).
2. The plaintiffs are entitled to disclosure of all the boycott reports, subject to the parties’ compliance with the pre-disclosure conditions mandated by this Court.
*695 3. In light of the evidence of the possibility of some confidential information being mixed in with the non-confidential documents, the Court, in the interest of justice and in the exercise of its general equity powers, must grant interested persons a right to object to the disclosure of particular reports.
4. Because the Court of Appeals has expressly stated that exemption 3, 5 U.S.C. § 552(b)(3), is not applicable to the documents in this case, the Court can no longer enforce its previous order. Accordingly, the Court’s order of November 15, 1977, is vacated.