Hastings Manufacturing Company

Text (OCR of the scan at left; may contain errors)

IN THE MATTER OF HASTINGS MANUFACTURING COMPANY Docket 4437. Interlocutory Order, Oct. 22, 1979 ORDER DENYING RESPONDENT’S REQUEST FOR CONFIDENTIAL TREATMENT OF ITS PETITION To REOPEN AND RELATED FILINGS At the close of its Reply filed on July 31, 1979, respondent Hastings Manufacturing Company requested that its petition to reopen this proceeding and related filings be kept confidential. It argued that the filings “outline areas of vulnerability in Hastings’ ability to compete, Le., the inability to offer a stock lift,” and that such information, if made public, could be used by Hastings’ competitors to “seriously injure” the firm. The Commission immediately placed the documents in camera pending consideration of Hastings’ request. On September 6, 1979, the Commission ordered the parties to rebrief the question, inter alia, of what legal or factual basis might exist for granting the confidentiality request. Hastings filed additional briefs pursuant to this order on October 1 and 15, 1979, but in them declined to elaborate on the conclusory rationale for confidential treatment that it had advanced earlier.

The Commission’s Rules of Practice and the case law establish a strong presumption in favor of opening adjudicative proceedings to the public and making pleadings, exhibits, and other papers in such proceedings available for public inspection. 16 C.F.R. 3.41(a), 4,.9(b)(4); EB. Griffiths Hughes, Inc. v. FTC, 68 F.2d 362, 363-64 (D.C. Cir. 1933); H. P. Hood & Sons, Inc., 58 F.T.C. 1184, 1186 (1961). The presumption can be overcome, and information placed in camera, “only in those unusual and exceptional circumstances when good cause is found on the record.” 16 C.F.R. 3.45(b). Respondent Hastings has failed to establish the presence of such circumstances here. The information that Hastings seeks to protect — namely, references to its inability to offer stock lifts to its customers — has long been a matter of public record. Hastings’ inability to offer stock lifts is the direct result of a Commission ceaseand-desist order specifically prohibiting the practice. The public has continuously had access to that order for over 30 years through the official published reports of the Commission and the Court of Appeals. Hastings Manufacturing Co., 39 F.T.C. 498 (1944), aff'd, 153 F.2d 253 (6th Cir. 1946). Indeed, Hastings has not even attempted to. argue that placing the petition and related filings on the public record would disclose a theretofore confidential fact. Instead, Hast- - Interlocutory Order 94 F.T.C.

ings has asserted that such an action would unfairly spotlight and “further emphasize” the fact.

The Commission is aware of no precedent or legal authority for placing adjudicative filings in camera in such circumstances, and respondent has pointed to none in its briefs. In fact, since the petition and related filings appear to contain no information that would fall within any of the exemptions to the Freedom of Information Act (5 U.S.C. 552(b)), the Commission would be obliged to produce them to any member of the public who requested access to them.

For the above reasons, the Commission hereby denies respondent’s request for confidential treatment of the petition and related filings. Accordingly, It is ordered, That five days from the date of this order, the Secretary shall place on the public record this order, respondent’s — petition to reopen this proceeding and all subsequently filed briefs, orders, and other papers relating to the petition. It is further ordered, That immediately upon issuance of this order, the Secretary shall telephone respondent’s counsel and read the order to such counsel.

pe ee eS SS Se ey eee, ae cee aves 1051 ~ Modifying Order