Exxon Corp. v. Federal Trade Com.

Exxon Corp. v. Federal Trade Com.

Opinion

 [*585]  Exxon appeals from the district court's refusal to grant injunctive or declaratory relief and from its subsequent denial [**2]  of a stay pending appeal. At issue is whether any protective measures should be imposed on the Federal Trade Commission (hereafter the "Commission" or the "FTC") with respect to the divulgence to Congress of "trade secrets" obtained by it under the compulsion of a subpoena. ¹ The controlling statute provides:

 [**3]  The (Federal Trade) Commission shall also have power

(f) To make public from time to time such portions of the information obtained by it hereunder, Except trade secrets and names of customers, as it shall deem expedient in the public interest . . .

 15 U.S.C. § 46(f) (emphasis added). The parties do not dispute, nor could they after our decision in Ashland Oil, Inc. v. FTC, 179 U.S.App.D.C. 22, 548 F.2d 977 (1976), that ] Congress has a right of access to such information,  [*586]  including trade secrets. The issue before us concerns solely the question of notice to parties prior to disclosure of their confidential information and of safeguards to ensure the continued confidentiality of such information once disclosed to the Congress.

In 1975, pursuant to a subpoena, Exxon, Kerr-McGee, and Union Carbide made available to the Commission information relating to their ownership, operation of, and future expectations for their uranium holdings. ² [**5]  It is undisputed that some of this material involved trade secrets, particularly the data [**4]  concerning the production and projected yield of individual mines. In April of 1976, in the course of considering S. 489, 94th Cong., 1st Sess., which proposed prohibiting oil companies from owning interests in fuel reserves other than oil and gas, Senator Hart wrote to the Commission on official stationery of the Senate Judiciary Subcommittee on Antitrust and Monopoly requesting the Commission to make available all information it had concerning the coal and uranium holdings of the oil companies. ³ The F.T.C., because of the relationship of its functions to those of Congress, treats such congressional requests as compulsive, even though they lack the formal status of congressional subpoenas. However, the Commission had previously assured the companies in writing that in the event of any congressional request for confidential information (trade secrets), it would both advise the Members of Congress who submitted the request that the information should be considered confidential when received, and give the companies themselves ten days prior notice of disclosure, whenever such notice was "reasonably possible" (Government's Brief at 2-3).

In early May, the Commission notified appellants of the subcommittee's requests, and appellant Union Carbide quickly obtained a court order restraining the disclosure of the requested information until ten days after the decision in the then pending Ashland Oil, Inc. v. F.T.C. case. Shortly after the Union Carbide order was issued, the subcommittee forwarded a formal request for Immediate access to the information, and the Commission informed the parties that it would disclose the data requested the following day, except insofar as protected by the court order obtained by Union Carbide. At this point, Kerr-McGee and Exxon also succeeded, despite only 23 hours advance notice, in obtaining a preliminary injunction barring disclosure [**6]  until the decision in Ashland Oil.

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