MEMORANDUM OPINION
This сase is before the Court on cross-motions for the entry of final judgment. Plaintiff has brought suit under the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552(a)(3), seeking disclosure of approximately 62,000 reports concerning boycott requests. The Cоurt, in its findings of fact and conclusions of law issued March 30, 1979, found that the defendant Department of Commerce had failed to make the requisite showing of “confidentiality” under 5 U.S.C. § 552(b)(4) for
all
of the documents.
Green v. Department of Commerce,
I. RECENT LEGISLATION DOES NOT REQUIRE JUDGMENT TO BE ENTERED FOR DEFENDANT.
The Court rejects defendant’s assertion that the Export Administration Act of 1979, § 12(c)(1), Pub.L.No. 96-72, 93 Stat. 530 (codified at 50 U.S.C.App. § 2411(c)(1)), compels entry of judgment in its favor. Because this piece of legislation was not enacted until September 28, 1979 — six months after the Court’s opinion- — its impact upon the case has yet to be addressed. After reviewing the new law, the Court is persuаded that it has no relevance.
*979 First, plaintiff’s FOIA request is clearly exempted from the scope of the new statute. Section 12(c)(1) of the Export Administration Act of 1979 provides:
(c) CONFIDENTIALITY. — (1) Except as otherwise provided by the third sentence of section 8(b)(2) and by section ll(c)(3)(C) of this Act, information obtained under this Act on or before June 30, 1980, which is deemed confidential, including Shippers’ Export Declarations, or with reference to which a request for confidential treatment is made by the person furnishing such information, shall be exempt from disclosure under section 552 of title 5, United States Code, and such information shall not be published or disclosed unless the Secretary determines that the withholding thereof is contrary to the national interest. Information obtained under this Act after June 30, 1980, may be withheld only to the extent permitted by statute, except that information obtained for the purpose of consideration of, or concerning, license applications under this Act shall be withheld from public disclosure unless the release of such information is determined by the Secretary to be in the nаtional interest. Enactment of this subsection shall not affect any judicial proceeding commenced under section 552 of title 5, United States Code, to obtain access to boycott reports submitted prior tо October 31, 1976, which was pending on May 15, 1979; but such proceeding shall be continued as if this Act had not been enacted.
Pub.L.No. 96-72, § 12(c)(1), 93 Stat. 530 (codified at 50 U.S.C.App. § 2411(c)(1)). The final sentence of this provision creates an exemрtion for suits under the FOIA which possess two criteria: 1) they must request reports submitted prior to October 31, 1976 and 2) they must have been pending as of May 15, 1979. Plaintiff here satisfies both requirements. His request under the FOIA is currently limited to boycott reports which were filed between January 1, 1965 and October 7, 1976 1 and his suit has been pending since March 3, 1977. Thus, the Court concludes that this recently enacted exemption does not apply to plaintiff’s case.
Second, section 12(c)(1) of the new Act is plainly designed to fall within the scope of 5 U.S.C. § 552(b)(3), a FOIA exemption for agency records “specifically exempted from disclosure by statute . . .The Court’s original conclusions of law stated that defendant was not entitled to the protection of section 552(b)(3),
In light of the foregoing, the Court holds that section 12(c)(1) оf the Export Administration Act of 1979, Pub.L.No. 96-72, 93 Stat. 530 (codified at 50 U.S.C.App. § 2411(c)(1)) does not provide a basis for awarding judgment to defendant.
II. THE EVIDENCE AT TRIAL DOES NOT SUPPORT ENTRY OF JUDGMENT FOR DEFENDANT.
The Court also declines to accept defendant’s suggestion that the evidence offеred at trial more than a year ago requires a judgment in its favor. In addressing defendant’s contentions, the Court shall clarify its earlier findings.
This suit involves more than 62,000 boycott reports and it illustrates many of the difficulties which arise when the FOIA is applied to a large number of documents. After trial, the Court concluded that a
small
number of the requested documents might be confidential commercial information, as defined in
National Parks and Conservation Association v. Kleppe,
Defendant asserts that because some of the 62,000 reports contain confidential information, all reports may be withheld. The Court, however, cannot accept defendant’s сonstruction of the FOIA. It holds, instead, that, under the Act, severable, nonexempt material must be disclosed.
Defendant also reasserts its claim that disclosure of the boycott requests would impair the government’s ability to оbtain necessary information in the future. Again, the Court is unpersuaded. First, because the Court has found that most of the records do not contain confidential business data, it finds further that their release is not likely to intimidate exporters into non-compliance. Second, defendant originally assured boycott report submitters that their reports would not be disclosed; breach of this “promise” of confidentiality is not a sufficient basis for holding that future report gathering will be impaired. Defendant’s argument on this point amounts to simple bootstrapping. In essence, it claims that an unwarranted, albeit good faith, assurance of confidentiality may serve as the basis for a finding that the assurance must be honored, lest the ability of the government to gather future information be impaired. To accept defendant’s contention, would create a gap in the FOIA large enоugh to eviscerate the Act: what submission could not be accompanied by “assurances” of confidentiality and thereby, be asserted to fall within the scope of 5 U.S.C. § 552(b)(4)? Thus, the Court concluded that defendant’s mere promise of confidentiality could not serve as the sole basis for withholding documents under 5 U.S.C. § 552(b)(4). Finally, the Court notes defendant’s evidence on this point was vague and conclusory and, as a result, the Court’s findings of March 30, 1979, rejected all of defendant’s factual assertions concerning the impairment of its ability to gather future boycott reports.
In light of the foregoing, the Court declines to modify it findings of fact and conclusions of law of March 30, 1979,
III. THE COURT’S NOTICE REQUIREMENT MUST BE MODIFIED.
Although the Court has decided to stand by its decision to award judgment to plaintiff, the Court believes that its original order must be modified in light of intervening precedent.
Specifically, the Court concludes that the notice requirement imposed in its original order should be modified. The Court’s order of March 30, 1979, required defendant to notify all submitters of the potential disclosure of their boycott reports. This notice was designed to give these individuals an oрportunity to object and, perhaps, prevent disclosure. Plaintiff had earlier indicated an intent not to dispute serious claims of confidentiality made by individual submitters. This notice procedure, however, would appear to grant FOIA plaintiffs a mechanism by which the Act could be used to
impede
disclosure. Yet, in
Chrysler Corp. v. Brown,
Defendant, however, is not entitled to employ the notice to delay unduly plaintiff’s access to the requested documents. To prevent such delay, the Court shall establish the following procedural deadlines. Defendant shall inform the Court of its decision on the matter of notice within ten days of the date of the order accompanying this opinion; notiсe, if any, shall issue within fifteen days of the date of the order. Submitters who oppose disclosure must object within thirty days of the issuance of notice. In addition, if defendant elects to issue notice, the parties shall be ordered to confer within fifty-five days of the date of this order and, further, within ten days of that conference to submit a joint stipulation regarding the boycott reports specifying: a) the boycott reports no longer sought by plaintiff and b)the boycott reports claimed exempt by individual submitters and still sought by plaintiff. In the event that defendant elects to forego notice, defendant shall produce the requested documents within thirty days.
IV. FINAL JUDGMENT SHALL BE, ISSUED IN PLAINTIFF’S FAVOR AFTER THE DOCUMENTS WHICH ARE CONFIDENTIAL HAVE BEEN SPECIFIED.
After defendant has filed the report to the Court required by the first deadline, the Court shall issue a further order setting forth the timetables herein listed, but referring solely to the course of action chosen by defendant — i. e., notice or direct release. If defendant elects to issue notice, the Court shall enter judgment in plaintiff’s favor once all questions of confidentiality have been resolved. In other words, after all of the boycott reports whiсh must be disclosed have been identified, the Court shall issue a judgment in favor of plaintiff. Of course, if defendant elects to forego notice, the Court shall promptly enter judgment in favor of plaintiff.
An order in accordance with the foregoing shall be issued even date herewith.
Notes
. Originally plaintiff also sought reports filed between October 7 and October 15, 1976, but due to a compromise between the parties, these reports are no longer a subject of litigation.