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February 7, 1977

Mobil Oil Corp.
Federal Trade Commission, Lewis A. Engman, Paul Rand Dixon, Mary Elizabeth Hanford, Mayo J. Thompson, and Charles A. Tobin.

The opinion of the court was delivered by: LASKER


LASKER, D.J.: In an earlier opinion, Mobil Oil Corp. v. Federal Trade Commission, 406 F. Supp. 305 (S.D.N.Y. 1976) decision on certain aspects of the FTC's motion for summary judgment was deferred "pending submission by defendants of affidavits consistent with the requirements of" Vaughn v. Rosen, 157 U.S. App. D.C. 340, 484 F.2d 820 (D.C. Cir. 1973); Cuneo v. Schlesinger, 157 U.S. App. D.C. 368, 484 F.2d 1086 (D.C. Cir. 1973) and Pacific Architects & Eng. Inc. v. Renegotiation Board, 164 U.S. App. D.C. 276, 505 F.2d 383 (D.C. Cir. 1974), to support the defendants' claim that one or more statutory exemptions in the Freedom of Information Act, 5 U.S.C. § 552(b), justified their refusal to disclose certain documents or portions thereof to plaintiff. Since that decision, defendants have released to the plaintiffs approximately 50% of the documents previously withheld, and have submitted to the court a Revised Index, cross-referenced to a legal memorandum, identifying documents which they continue to claim are exempt from disclosure. In camera copies of all withheld material have also been submitted.


 Plaintiff no longer presses its claim to be identifying information withheld from the documents classified, in the Revised Index, as Item I. The government's motion for summary judgment on this point is therefore granted.


 The documents in Category II are described by the government as:

 Various communications between the Commission and other federal or state law enforcement agencies on the subjects described in the complaint in this case that have been released except for the names of complaining parties and identifying details.... The names and identifying details have been bracketed to indicate those portions of the document that the Commission determined should be deleted in order to protect the identity of a confidential source. These names and details are exempt from disclosure under Exemption 7(D).

 Exemption 7(D) applies to "investigatory records complied for law enforcement purposes, but only to the extent that the production of such records... would disclose the identity of a confidential source..." 5 U.S.C. § 552(b)(7)(D).As indicated in our earlier opinion at 406 F. Supp. at 314, to qualify for this exemption the government has the burden of showing that the "source" whose identity it seeks to withhold gave information on an express or implied promise of confidentiality. "Absent any supporting affidavits," it was found that the government could not sustain its burden under this exemption. Id. Nonetheless, the FTC has failed to submit any affidavit to support its position with respect to the over 200 pages of documentary material contained in Item II. Moreover, the government has lumped all this material together without numbering the pages of the in camera exhibit, and without providing an individual index to the type of communications encompassed. In short, the FTC continues to place the burden on the court of sorting through a gross amount of undifferentiated material to determine whether or not the claimed exemption applies, in a manner which has been repeatedly criticized by this and other courts. 406 F. Supp. at 312-13.

 The majority of the material contained in Item II is patently not entitled to be withheld. Plaintiff is entitled to the following material: (1) names and identifying details of persons who filed formal complaints with governmental agencies and who indicated on the forms provided that they had no objection to the company whose behavior was complained of being notified of their complaint; (2) names and identifying details of persons who wrote letters of complaint which indicated that copies had been sent to members of Congress and/or to the very company of whose conduct complaint was made; (3) names and identifying details of retail purchasers of gasoline who made complaints to the FTC or other governmental agencies. People who specifically indicated that their complaints could be passed on to the oil companies have mot relied on implied promises of confidentiality, and it "strains credulity" that members of the gasoline-buying public writing unsolicited letters of complaint to regulatory agencies could reasonably infer that the information provided would be kept confidential.

 The remaining types of communications in Item II are from or about retail gasoline dealers, or their organized representatives, complaining of actions by their suppliers. *fn1" As to some of the communications, an implied promise of confidentiality can be inferred from the face of the document, notably, documents in pp. 1-31 of the material submitted in camera by the Commission, and a letter of July 26, 1970 to Robert Dixon, found in the middle of in camera Exhibit II. These materials indicate a desire for anonymity on the part of the retailers arising out of their fear of harassment or retaliation and law enforcement efforts would be hampered if such persons were unable to complain to the regulatory agencies in private without fear that the agency might disclose their identity to their harm.

 With respect to other communications between or about retail dealers, the Commission must submit affidavits to substantiate its claimed exemption.

 In sum, the material described above as items (1), (2) and (3) must be disclosed to the plaintiff; the two specific items referred to above as being entitled to exemption need not be disclosed; the remaining material must be disclosed to plaintiff unless within thirty days the FTC files a responsive affidavit from a responsible person in the agency stating with specificity the basis for its belief that disclosure of identifying details is not required by virtue of exemption 7(D).


 Item III consists of a "listing of companies to which an investigative questionnaire was sent, and exemption is claimed under § 552(b)(7)(A). Although the questionnaires themselves have been turned over to plaintiff, the government, according to an affidavit filed by Rhett Krull, an ...

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