E. I. Dupont De Nemours & Company

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IN THE MATTER OF 1. DUPONT DE NEMOURS & COMPANY Docket .9108. Interlocutory Order, Oct. 20, 1980 ORDER INVITING ADDITIONAL BRIEFS ON RESPONDENT S MOTION FOR CONTINUED IN CAMERA TREATMENT By motion fied January 16, 1980, respondent E. I. Dupont de Nemours and Company ("Dupont") requested a three year extension of in camera protection for certain documents in the record in this case. Administrative Law Judge Miles J. Brown previously ordered that these materials be given in camera treatment until the date of the Commission s final order or as otherwise ordered by the Commission. As indicated in Dupont' s motion and confirmed in a subsequent pleading, complaint counsel have no objection to a three year extension of in camera treatment except to the extent that the Commission finds it necessary to refer to in camera evidence in its opinion. In a supplemental memorandum, Dupont raised additional issues concerning the effect of the Federal Trade Commission Improvement Act of 1980, Pub. Law 96-252, on our adjudicative camera standards. Complaint counsel did not address respondent' contention that the legislation modified the criteria for in camera treatment because they do not oppose the requested extension. We reject respondent' s supplemental arguments at the outset and state our view that the provisions of the Improvement Act governing treatment of confidential information do not apply to or affect the Commission s standards for in camera protection of exhibits in adjudicative proceedings. Those standards are clearly expressed in HP. Hood Sons, Inc. 58 F. C. 1184 (1961); Bristol-Myers Company, 90 F. C. 455 (1977); and General Foods Corporation, Dkt. 9085, Order of March 10, 1980.

In applying the standards set forth in these cases to the instant motion for extended in camera treatment, we have found that certain issues raised by the respondent require clarification before a final determination can be made. While some of the documents appear to warrant extended in camera protection, the appropriate treatment for other data is less clear. Accordingly, we invite respondent, and complaint counsel should they so desire, to submit additional briefs on the following matters: (1) Respondent has argued that certain earnings data should be given in camera treatment not only because of their commercial sensitivity, but also because a ruling by the Internal Revenue E. I. DUPONT DE NEMOURS & CO. 651 650 Interlocutory Order Service that "disclosure of non-LIFO basis financial information in this proceeding does not constitute a violation of the LIFO conformity requirements of the Code" was apparently conditioned on such data remaining in camera. Weare unconvinced, as yet, that the respondent' s argument concerning the IRS ruling affords a satisfactory basis to grant continued in camera protection. While increased tax liability following the release of the earnings data might well be something that Dupont legitimately desires to avoid, the in camera standards enunciated in HP Hood and its progeny require us to focus on the likelihood of injury to a company commercial competitive position. In addition to addressing the issue of the continued commercial importance of these data, Dupont should also address further the effect of removing in camera protection on the IRS' ruling and the applicability of the Hood standard to the kind of injury asserted here.

(2) Exhibits CX 129C, 173B, 173D, 178T, 182G, 182H, 182I, and 182J are entitled to in camera treatment, according to Dupont, because they contain recent and highly sensitive business information. The data contained in these documents-generally profits, earnings, unit costs, and sales volumes for titanium dioxide-do appear to comprise information that, if recent, would normally be viewed as highly sensitive. However, the data here concern the years 1973 through 1976, with estimates covering years no more recent than 1977. Dupont should explain more fully how the release of this information would result in serious injury to its competitive or commercialposition today. We also note that some ofthis information already may have been publicly released. For example, CX 133N reveals Dupont' s actual return on investment in titanium dioxide as of 1976, and CX 26I projects sales volumes, investment volumes, earnings, and returns on investment for titanium dioxide for 1972- 1984. In Bristol-Myers Company, supra, the Commission stated that "demonstrating serious injury requires the applicant to show that the documents (to be protected) are secret. . . ." 90 F. C. 455, 456. Dupont has not satisfactorily addressed the impact that prior disclosures have had on the likelihood that serious competitive injury would result from the release of exhibits CX 129C, 173B, 173D, 178T, 182G, 182H, 182I and 182J.

(3) Information contained in exhibits CX 8lE, 81F, 82, 83, and 98C similarly appears to have been disclosed or so closely resembles information previously disclosed in the record that it may no longer be commercially sensitive or secret. Specifically, CX 28E, apparently prepared in 1972, shows the unit costs of titanium dioxide production Interlocutory Order 96 F. by plant for both Dupont and its competitors, as well as sales prices and operative earnings. CX 26M, also prepared in 1972, reveals costs, operative earnings. return on investment and total investment for Dupont' s plants. Exhibits CX 81E, 81F, 82, 83, and 98C evidently contain the same types of information for the years 1973 and 1975. In its additional briefs, Dupont should discuss any material differences between the information in these five exhibits and data that have already been disclosed.

(4) Dupont further assert that another group of documents contains sensitive financial information from its departmental quarterly reports, the release of which would give its competitors an injurious insight into its strengths and weaknesses. However, among these documents we notice several bare listings of sellng prices of titanium dioxide by month for 1976 and 1977, indexed to a base year. These are exhibits RX 35K RX 36J, RX 37L, RX 38L, RX 39L, and RX 40M. The age and apparent public nature of this information suggest that the exhibits need not be given extended in camera protection. We therefore request that Dupont explain why the release of these data would be likely to result in serious injury to its competitive or commercial position. Accordingly, It is ordered, That the respondent and complaint counsel be given thirty days from the date of issuance of this order in which to submit briefs discussing the issues noted above. In camera protection of the exhibits that are the subject of respondent's motion shall be extended unti the Commission issues an order disposing of that motion.

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