Vereinigte Vaubeschlagfabriken Gretsch & Co. v. United States Treasury Department

435 F. Supp. 1212, 3 Media L. Rep. (BNA) 1461, 1977 U.S. Dist. LEXIS 14211
CourtDistrict Court, District of Columbia
DecidedAugust 31, 1977
DocketCiv. A. No. 76-1000
StatusPublished
Cited by1 cases

This text of 435 F. Supp. 1212 (Vereinigte Vaubeschlagfabriken Gretsch & Co. v. United States Treasury Department) is published on Counsel Stack Legal Research, covering District Court, District of Columbia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Vereinigte Vaubeschlagfabriken Gretsch & Co. v. United States Treasury Department, 435 F. Supp. 1212, 3 Media L. Rep. (BNA) 1461, 1977 U.S. Dist. LEXIS 14211 (D.D.C. 1977).

Opinion

MEMORANDUM OPINION

JOHN H. PRATT, District Judge.

I. Introduction.

In this Freedom of Information Act suit, the parties are before the Court on cross-motions for summary judgment, as well as plaintiff’s motion for a protective order and defendants’ opposition thereto. For the reasons hereinafter set forth, we grant defendants’ motion for summary judgment.

II. Factual Background.

Plaintiff addressed its initial request for records under the Freedom of Information [1214]*1214Act, 5 U.S.C. § 552, to the United States Customs Service on March 5, 1976. A supplemental letter expanding the scope of plaintiff’s request, dated March 31, 1976, ■was forwarded to the Director, Classification and Value Division, Office of Regulations and Rulings, U. S. Customs Service. On April 16, 1976, the Assistant Commissioner, Office of Regulations and Rulings (the Customs official charged by regulation with making initial determinations under the FOIA) issued a partial denial of plaintiff’s request.

On April 30, 1976, plaintiff filed an appeal with the Customs Service from the Assistant Commissioner’s decision. The Service requested, on May 18,1976, a voluntary extension of thirty days within which to respond to plaintiff’s appeal. (The response was due on June 12, 1976). By letter dated May 28, 1976, plaintiff denied the request for a voluntary extension.

On June 7, 1976, plaintiff filed a complaint in this Court requesting, inter alia, that the U. S. Customs Service make available to the plaintiff the documentation requested and referred to in plaintiff’s appeal of April 30, 1976.

Since the filing of the complaint, the Customs Service has released five documents:

(1) A letter dated June 16,1975, from the Chairman of the International Trade Commission to Vernon D. Aeree, Commissioner of Customs;

(2) A memorandum dated June 17, 1975, from Ben L. Irvin to James J. Feather-stone;

(3) An August 13, 1975 letter from William D. Kane, Customs Representative, Bonn Republic of West Germany, to Mario Cozzi, Chief, Foreign Investigations Branch, Customs Headquarters;

(4) A December 29, 1975 memorandum from the Commissioner of Customs to David R. MacDonald, Assistant Treasury Secretary (Enforcement, Operations, and Tariff Affairs); and

(5) A memorandum dated August 4, 1975 from B. J. Victor to the File.

Each of the above documents was previously claimed to be exempt in its entirety. Four additional documents described in the March 2,1977 affidavit of Vernon D. Aeree, Commissioner of Customs, at ¶¶ 13, 15, 16, 17 (hereinafter the “Aeree affidavit”) which were previously withheld, have been partially disclosed. The Aeree affidavit is attached to defendants’ Motion to Dismiss, or in the Alternative, for Summary Judgment.

A letter dated May 6, 1975, to Senator Henry Jackson from Ivor I. Allsop, has also recently been released. Therefore, the partial or complete nondisclosure by the defendants of ten documents identified and described in the Aeree affidavit are the issues to be here resolved.

III. Documents at Issue.

Plaintiff segregates the documents here at issue into three categories:

(1) Documents earlier identified but for which the Agency has allegedly asserted no exemption;

(2) Exemption 4 documents;

(3) Exemption 5 documents.

(1) Documents for which no exemption is allegedly claimed. In this category, four documents are sought. The first of these is a memorandum dated June 1, 1976 from Linda Potts to Marylin Austin. This document has been released to plaintiff.

The second and third documents are a letter and attachment from B to the U. S. Customs Service, Washington, D. C. dated March 8,1974, and a Translation of General Terms of Delivery and Payment concerning C. These documents are described in paragraphs 2-4 of the April 19,1977 affidavit of Leonard Lehman, Assistant Commissioner of Customs, Office of Regulations and Rulings, U. S. Customs Service (hereinafter “Lehman affidavit”), which affidavit is attached to defendants’ Response to Plaintiff’s Statement of Material Facts. These documents had been listed as exempt in Mr. Lehman’s April 28, 1976 letter to plaintiff, which was the initial agency response to plaintiff’s FOIA requests, and specified [1215]*1215each document for which an exemption had been claimed.

Defendants state that due to the confidential and commercial nature of these two documents, exemption 4 is applicable. Hence, the documents have been withheld in their entirety. In light of this assertion, we will consider these two documents with the other exemption 4 claims.

The final document in this category is the May 6,1975 letter from Mr. Allsop to Senator Jackson which, as previously stated, has recently been released.

2. Exemption 4 documents. Section 552(b)(4) of the Act exempts:

“(4) trade secrets and commercial or financial information obtained from a person and privileged or confidential;”

To qualify under this exemption, the requirements are that the information is (1) commercial or financial, (2) obtained from a person, and (3) privileged or confidential. Getman v. N L R B, 146 U.S.App.D.C. 209, 450 F.2d 670, 673 (1971) quoting Consumers Union of United States, Inc. v. Veterans Administration, 301 F.Supp. 796, 802 (S.D.N.Y.1969), appeal dismissed, 436 F.2d 1363 (2d Cir. 1971); National Parks and Conservation Association v. Morton, 162 U.S.App.D.C. 223, 498 F.2d 765, 766 (1974).

For the purposes of exemption 4, commercial or financial information is confidential if the information is likely to have either of the following effects:

(1) to impair the Government’s ability to obtain necessary information in the future; or

(2) to cause substantial harm to the competitive position of the person from whom the information was obtained. National Parks and Conservation Ass’n v. Morton, supra at 770.

Plaintiff in requesting the documents for which exemption 4 has been claimed, states that it does not seek documents containing only proprietary business information. Plaintiff merely prays for in camera verification by the Court of the defendants’ assertion that all information included in those documents is properly characterized as confidential commercial data and, hence, within the scope of exemption 4. Plaintiff additionally states that since only four (now six) documents are at issue, in camera inspection by the Court would not be unduly burdensome.

Defendants respond that in camera inspection is unnecessary in light of the complete justification for the exemption claims set forth in the Aeree and Lehman affidavits. Defendants also note that in camera review of withheld documents is not automatic under the FOIA. We agree.

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435 F. Supp. 1212, 3 Media L. Rep. (BNA) 1461, 1977 U.S. Dist. LEXIS 14211, Counsel Stack Legal Research, https://law.counselstack.com/opinion/vereinigte-vaubeschlagfabriken-gretsch-co-v-united-states-treasury-dcd-1977.