E.I. Dupont De Nemours & Company

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IN THE MATTER OF !. DUPONT DE NEMOURS & COMPANY Docket 9108. Interlocutory Order, June, 1984 ORDER EXTENDING IN CAMERA TREATMENT By Order of'he Commission, dated January 21 , 1981, certain exhibits in the record of Docket No. 9108 were accorded in camera status for a three year period. The Order has now expired and respondent !. Dupont de Nemours and Company ("Dupont") has moved the Commission, pursuant to a January 20, 1984 motion, for return of all in camera exhibits in Docket No. 9108 which are part of the record in that proceeding. In the alternative, respondent has asked the Commission for an extension of in camera treatment for certain exhibits indefinitely, or at least for three additional years with a provision for further in camera treatment upon a showing of good cause therefor. After consideration of DuPont's motion, the Commission denies respondent' s request for return of all in camera exhibits in the record of the Dupont proceeding. The Federal Trade Commission Act ("FTC Act") and the Commission s Rules of Practice allow for return of documentary materials submitted to the Commission except those materials offered and received in evidence in a Commission proceeding.! The Commission s Rules reflect its desire to maintain a full and accurate record of Commission deliberative considerations, as well as to preserve records of Commission activities which have legitimate informational value to its law enforcement functions. The Commission also denies respondent' s request for indefinite camera treatment for certain specified exhibits. That request, seeking in camera protection in perpetuity, fails to meet the Commission standard for in camera treatment disclosure of documents must result in "clearly defined serious injury to the person or corporation j Specifically, under S ction 21(b)(5) ofthtJ FTC Act, when materials are producedin tbe course of an investigation and any proceeding arising out of the investigation is complete, then the custodian shall, upon written request ofthc person who produced the material, return to the person any such malerial which has nol been received into the recordof any such proceeding (emphasis added). See also Commission rule 4. 12(a) which states Any person who has submitted documentary material to the Commission may obtain, on request, the return of material submitted to the Commission which has not been received intu evidence. . Because the FTC Act and the Commission s Rules de nut provide for the return of the "originals" ofthe dommenll in quest.ion it is unnecessary to determine whet.her Dupont has met the "extraordinary circumstances" showing required by Rule 4. 12(b) for the return of copies of documents made by the Commission. 2 The Commission is required by Federal law to preserve records received by the agency in connection with the transaction of public business "as evidence of the organization, functions, policies, decisions, procedures, operations, or other activitiesofthe Government or because of the informational value of data in them." Federa! Records Act, 44 U.SC 3301; See uls" Commission s Rules of Practice, Rule 4. 12(c) Interlocutory Order 103 F. whose records are involved. HP. Hood Sons, Inc. 58 F. C. 1184 1188 (1958); Commission Rule 3.45. At some point in the future, Du- Pont's confidential information may well lose its competitive sensitivity and have little value to its competitors. Given the importance of keeping the Commission s activities open to public review and scrutiny, it is appropriate to make the record in the Dupont matter publicly available at some point in time, provided sensitive and confidential business information is not disclosed. Finally, the Commission finds suffcient grounds for extending camera protection for certain Dupont exhibits based upon the standard reflected by Commission Rule 3.45(b) and explained in HP. Hood & Sons, Inc., supra. An applicant for in camera status is required to show that the information in the documents is "suffciently secret" and "suffciently material" to its business that disclosure would result in serious competitive injury. General Foods Corporation 95 F. 352 355 (1980). The Commission places a greater burden on a respondent to demonstrate that disclosure would result in competitive injury for information over three years old. General Foods, supra 95 F. 353.

Although respondent' s confidential data is over three years old respondent has made a convincing showing that it remains possible through sophisticated extrapolation techniques, that DuPont's current cost information could be computed by its competitors from the data presently in the record. Given the limited number of documents involved in respondent's request, the finite time period of continued protection requested, and the clear possibility that disclosure wil result in !!clearly defined serious injury" if such information is disclosed, it is not unreasonable to extend in camera treatment for an additional three years. At the conclusion of another three year period both Dupont and the Commission wil be better situated to evaluate the necessity of further in camera treatment for the documents in question.3 Therefore It is ordered That the following exhibits presently in the in camera record of Docket No. 9108 shall remain in camerafor three years from the date ofhis Order, at which time respondent may show cause why those documents should not be made public: cx 21N ex 1730 CX 211 Z(40) CX 29M ex 178T CX 219A- CX 321 ex 1 S2G- CX 241A-D CX 50N CX 182J CX 255Acx 54H CX 1830 CX 255H- CX 640- CX 1960 ex 264A- 3 As the underlying data become older, aoy ",xlrapolation techniques wih likely become less accurale, and wil pose less risk nfcornpetitive harm 533 Interlocutory Order ex 68X CX 196F RX 15 CX 68Z(1) CX 1961 RX 6E CX 81A- ex 196K- RX 17B- CX 82A CX 196Y-Z(1) RX 18A CX 83A CX 198H RX 19A CX117A- CX 200C RX 32A- CX 129C CX 206A- RX 34A- CX 132G- CX 209K- RX 35A- CX 146C CX 209LL RX 35D-Q CX 146E CX 210C-E RX 36A- CX 149D CX 210G- RX 37 A- CX 149F CX 211F-J RX 37H-Q CX 149H-J CX211L- RX 38A- CX 149T CX 211R- RX 38E- CX 149V CX 211 X-Z(2) RX 38S CX 133R CX 211Z(4)-Z(8) RX 39Aex 158M- CX 211Z(11)-Z(15) RX 39H-Q CX 158Z(32)-Z(33) CX 211Z(17)-Z(21) RX 40A- CX 169A CX 211 Z(23)-Z(27) RX 401- CX 1701 CX 211 Z(29)-Z(33) RX 40S CX 173B CX 211 Z(35)-Z(38A) Interlocutory Order 103 F.