BOC INTERNATIONAL, LIMITED, ET AL., formerly known as British Oxygen Company, Limited

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IN THE MATTER OF BOC INTERNATIONAL, LIMITED, ET AL.

(formerly known as British Oxygen Company, Limited) Docket 8955. Interlocutory Orda, October, 1985. NOTICE OF INTENT TO RELEASE CONFIDENTIAL INFORMATION This is to advise BOC International, Limited, BOC Financial Corporation, BOC Holdings Limited, British Oxygen Investments, Limited and Airco, Incorporated ("the companies ) that, pursuant to the Commission s order in Docket 8955, the Commission intends to place on the public record certain exhibits introduced into evidence in Docket No. 8955 in an in camera status. (86 F. C. 124I (1975)) By order of January 14, 1978, the Commission temporarily reinstated in camera treatment for these exhibits, pending receipt of answers , and resolution of, motions for extension ofthe in camera treatment of these documents by BOC for one year and Airco for three months or until document production was complete in another proceeding. On May 14, I980, the Commission dismissed the complaint in this matter without resolving the motions, thus leaving the documents in an camera status. (95 F. C. 805 (1980)) On January 5, 1985, access was requested under the Freedom of Information Act, 5 U. C. 552 ("FOIA"), for documents submitted during investigation of companies in the industrial gas industry. All responsive documents were examined pursuant to the request to ascertain whether they were protected from mandatory public disclosure by the exemptions contained in the FOIA. That examination included analysis of whether the exhibits described below warranted continuing in camera protection. Because, as explained below, the Commission has determined that in camera treatment is no longer justified, the documents wil become part of the public record in this matter. Accordingly, no FOIA exemptions wil apply to them. The exhibits in question were entered into evidence in the matter of British Oxygen Company, Limited D. 8955, as CX 78, 95, 161, I62 163 232 254 255, and 30!. They consist of business records containing financial information that was sensitive to the parties at the time it was introduced into evidence in 1974 and other information reflecting BOC's interest during the period from 1970 through 1973 in entering the United States industrial gas market. The exhibits also comprise reports of interviews held in I973 with Airco s two top executives. The latter group of documents includes evaluations made twelve years ago of Airco s top executives and its Board of Directors. ? .

Interlocutory Order 106 F. There is a strong public interest in holding all aspects of Commission adjudicative proceedings open to interested persons for public inspection and understanding. Accordingly, the Commission s Rules of Practice provide for issuance of in camera orders only in unusual and exceptional circumstances. 16 C. R. 3.45(b). Those circumstances occur only on a showing that placing the documents on the public record would result in a clearly defined, serious injury to the corporation submitting the documents. HP. Hood Sons, Inc. 58 F. C. 1184 (1961); Bristol-Myers Co. 90 F. C. 455 (1977). In cases such as these, where the information is old, an even greater burden is placed on the submitter. Even where a clearly defined, serious injury can be demonstrated when close in time, its basis is normally removed by the passage of years. Columbia Broadcasting System, Inc. 72 F. C. 27, 334 (1967). Unless the documents can be used to make such a convincing showing of significant insight into current operations that serious competitive injury would result, continued in camera treatment is not justified. General Foods Corp., 95 C. 352 (1980).

The Commission has examined the business records at issue of Airco and BOC to determine whether they presently deserve the camera protection that has been accorded to them. Information contained in these records is at least 12 years old. Although it appears that publication might have caused a clearly defined, serious injury had the records been disclosed in 1974, any sensitivity that had existed has been removed by passage of twelve years. We have studied the records to determine whether the sensitivity of the information may be preserved by virtue of the possibility that the data may be used to make a convincing showing of insight into operations of BOC's current businesses. In this instance, however, the passage oftwelve years makes the construction of a current, accurate model impossible. Thus we cannot find trat the business records demonstrate the clearly in camera status. defined, serious injury necessary for continued We have also examined documents containing the evaluations of Airco s offcers and directors to determine whether they warrant continued in camera status. We have concluded as a result of our examination that public disclosure of the twelve year old comments would create nothing more than a slight embarrassment to the individuals involved, not a clearly defined, serious injury to BOC. Accordingly, in cases such as this, we have held that "the mere embarrassment of the supra at 1188- movant should not foreclose public disclosure. Hood, 89.

For the reasons expressed above, the Commission wil lift the present in camera status ofthe exhibits CX- , CX- , CX-161, CX- 1M r:1(-1f: r:1(- CX-254. CX-255 and CX-301 entered into evi- BOC INTERNATIONAL, LTD., ET AI. 341 339 Interlocutory Order dence in the course of adjudication in D. 8955. The documents wil be placed on the public record no sooner than then (10) calendar days following service of this notice on the companies. Complaint 106 F.