General Motors Corporation

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IN THE MATTER OF GENERAL MOTORS CORPORATION Docket 9145. Interlocutory Order, March 7, 1984 ORDER By letter of November 1, 1983, Chairman Florio of the House Subcommittee on Commerce, Transportation, and Tourism of the Committee on Energy and Commerce requested access to certain materials in the so-called "GM Defects" case, D. 9145. (102 F. C. 1741 (1983)J Generally, the Commission takes the position that it has no authority to withhold information that is responsive to an offcial request of a congressional committee or subcommittee acting within its jurisdiction. See 15 V. C. 57b-2(b)(3)(C), 57b-2(d)(I)(A); 5 V. 552(c). See also, e. , Ashland Oil Co. v. FTC, 409 F.supp. 297 (D.D. affd 548 F.2d 977 (D. C. Cir. 1976).

The materials responsive to Chairman Florio s request have been subject to a protective order that was entered by the administrative law judge in December 1980. That protective order limits access to the documents to Commission employees involved in the conduct of the proceeding and ostensibly precludes the Commission from authorizing their transmittal to Congress. Although an ALJ' s order that purports to preclude the Commission from complying with an offcial congressional request for access is of doubtful validity, the Commission concluded that notice of its intention to disclose was appropriate and, on November 23, 1983, it issued an order that General Motors Corporation ("GM") show cause why the ALJ' s order should not be modified to conform to the confidentiality provisions ofthe FTC Act. GM fied a response to that order on December 22, 1983. General Motor s Response ("Res. ) makes three arguments in opposition to the proposed modification. In addition, it requests access to the internal FTC staff memoranda responsive to Chairman Florio request, return of the documents it submitted as well as of all copies made by staff, and permission to make an in camera oral presentation to the Commission.

A. GM's Arguments in Opposition and Disposition 1. Modification After GM's Production in Reliance is Vnfair GM first argues that it is ttunfair" for the Commission to rewrite its obligations after the company has provided documents in reliance on the order. It points out that "(tJhe preamble to the Order straightforwardly declares that it has been ' stipulated and agreed to' by coun- , Interlocutory Order 103 F. sel for both General Motors and the Commission." Res. at 2. Finally, the company argues that the order to show cause offers two justifications for modification, both of which "were in existence and known to the Commission when the Order was issued" (id.J, and neither of which provides, in GM's view basis for any subsequent modification. Id.

An ALJ has no authority to issue orders that are inconsistent with applicable law, Commission decisions, policy directives or the rules. See 16 C. R. 0.14. To the extent, therefore, that the ALJ's order in this case bars the Commission from fulfillng its obligation to provide documents in response to offcial requests of the Congress, it has no force and effect. Nevertheless, as a matter offairness, the Commission determined to notify the company before responding to Chairman Florio and it issued the November 1983 show cause order. The Commission believes that because its consistent policy has been to provide documents in response to offcial congressional requests-a fact which has been no secret to the major companies subject to the Commission s jurisdiction I-the agency has acted with scrupulous attention to fairness by offering GM formal notice of its intentions and soliciting its views.

Not only have other major companies been aware of the Commission s policy and practice with respect to offcial congressional requests (see note 1 supra), but also, GM itself has long been cognizant of the Commission s position by virtue of fiings in the subpoena enforcement proceeding that preceded document production in the defects case. FTCv. General Motors Corporation No. G-0-276 (N. Ohio 1980). Immediately prior to the enactment ofthe FTC Improvements Act of 1980, the district court had issued a protective order covering most of the documents subsequently made subject to the ALJ' s protective order. The court order, which has now expired, limited access to the documents to FTC employees involved in the defects proceeding. Commission counsel sought to convince the court, prior to its issuance of the order, that it should conform the decree to the confidentiality provisions of the FTC Improvements bil, which was then expected to be passed by Congress within days. The court declined. Subsequently, the Commission fied a motion seeking partial relief from the order and arguing specifically for terms that would allow the Commission to provide the documents to Congress in the event they were responsive to an offcial access request. GM responded vigorously in opposition to the proposed change, among other things, referring to comments that had been made by the court in chambers on what it termed "the inherent tension between hypothetical congressional requests for documents and whatever order the See, e. , Ashland Oil Co. v. FTC, supra; i''xon Corp-v. FTG 589 F.2d 585 (D.C. Cir. 1978) GENERAL MOTORS CORP. 107 105 Interlocutory Order Court might impose." Respondent' s Statement in Opposition to Petitioner s Motion for Relief from Order at 6 (emphasis added). GM' s argument opposing the Commission s current move to modify the similarly restrictive order of the ALJ is therefore inconsistent with its previous suggestion that absent an actual request, the basis for modification was too hypothetical. Moreover, its suggestion that the Commission was, or should have been, aware of the problem of congressional access in 1980 but chose to do nothing is ill-founded. As noted, the Commission did attempt to seek modification ofthe court' order and, when these efforts failed, complaint counsel should not be faulted for not pursuing the matter before the ALJ while a court order remained in effect that would have superseded any inconsistent provision in an order issued by an ALJ.

In light ofthe above, the Commission does not believe that modification of the protective order at this time would treat the company unfairly, and it does not consider GM' s claims in this respect to bar such a modification.

2. Modification Not in Commission s Interest The GM memorandum suggests first that because the proposed modification was triggered by Chairman Florio s request for access to the protected documents on behalf of his subcommittee, the Commission s purpose is "to assist that congressman" (Res. at 6) rather than to advance the interests of the Commission ' . . (which) already enjoys full access to the documents." Res. at 7. GM then asserts that Congress does not need the Commission s help ' . . (because it) retains its full constitutional authority to seek discovery ofthe General Motors documents directly from General Motors. Id. Last, GM argues that the modification, if implemented, would cause future parties to be reluctant to provide documents to the Commission pursuant to a protective order "if such an order can be summarily rewritten by the Commission to restrict or even rescind the proffered protection. Id.

GM' s suggestion that providing documents to Chairman Florio assists the congressman but not the Commission is without merit. Clearly, it is in the Commission s interests to comply with its legal obligations, including those under which it is bound to provide information to Congress upon receipt of an offcial request. As to the question whether parties might be deterred in the future from providing documents under protective orders issued by ALJ' , parties always are entitled to certain statutory protections and to additional safeguards included in the Commission s rules. These protections have been held by the courts to afford adequate protection for companies responding to compulsory process, and the Commission may not ), Interlocutory Order 103 F.T. modify a protective order in a manner that is inconsistent with the law or its own rules.

3. Practical Alternative Better Than Modification Finally, GM suggests a "common sense alternative" to the proposed modification- General Motors is wiling to consider, on a documentby-document basis, allowing the Commission to release such documents to Congress or appropriate law enforcement agencies." Res. at 8. This alternative is predicated both on a recognition that some ofthe material may be less confidential in 1984 than when it was produced in 1980 and on the condition that the Commission will permit GM to inspect documents, including staff memoranda, that are responsive to offcial congressional or law enforcement agency requests for access including this one.

GM' s alternative is unacceptable because it would require the Commission to divulge to the company its internal deliberations and those of its staff. The internal memoranda and related documents responsive to Chairman Florio s request consist largely of pre decisional and deliberative material such as analyses, opinions and recommendations about the conduct of the then pending investigation. The staff documents also constitute attorney work product that would reveal the mental impressions of the legal staff in preparation for litigation. Tbe documents, therefore, are both exempt from mandatory public disclosure under the Freedom ofInformation Act (see NLRBv. Sears Roebuck & Co., 421 U.S. 132 (1975)) and privileged from civil discovery. Carl Zeiss Stiftung v. VE.B. Carl Zeiss, Jena 40 F.R.D. 318 324-25 (D. C. 1966), aff'd on opinion below, VE.B. Carl Zeiss, Jena v. Clark 384 F.2d 979 (D. C. Cir. cert. denied, 389 U.S. 952 (1967). The Commission declines to waive either ofthese protections by acceding to GM's alternative course of action.

B. GM's Other Requests and Disposition For the reasons stated immediately above, the Commission denies GM' s request for access to the internal Commission documents responsive to Chairman Florio s request. In addition, because it seems unlikely that GM wil raise any arguments that would justify refusing to modify the order so as to permit transmittal of the documents in question to the Subcommittee, the Commission does not believe that oral argument on this matter is warranted.

GM' s final request is for return of all documents submitted to the Commission as well as all copies of such materials that may have been made by the Commission staff GM acknowledges that the Commission staff "was acting within its authority" to make copies of the company submissions (Res. at 10), but it profIers no argument to 105 Interlocutory Order justify their being surrendered to the company. Requests for return 15of documents are governed by Section 21(b)(5) of the FTC Act, U.S.C. 57b-2(b)(5), and Section 4.12 of the Commission s Rules ofPractice, 16 C. R. 4. 12 (1983). Both of these provisions specify that the Commission must return company-submitted documents to their submitter at the close of any proceeding arising out of the investigation in which the documents were obtained, and both also allow the Commission to retain copies ofthose documents. In addition, Rule 4.12(b) provides:

The Commission will not return to the submitter copies of documents made by the Commission unless, upon a showing of extraordinary circumstances, the Commission determines that return would be required in the public interest. GM has made no showing of extraordinary circumstances to justify its request for return of all copies of its submissions. The Commission however, hereby directs the Secretary to arrange for the prompt return of original submissions as required by the statute and Rule 4. 12. C. ORDER In light of the above discussion;

It is hereby ordered That the protective order issued by the ALJ be modified as described in the Order to Show Cause including provision for both congressional access and access by law enforcement agencies in a manner consistent with the confidentiality provisions of the FTC Act and the Commission s Rules, 15 U. C. 46(1), 57b-2(b), and 16 R. 4.10-.11 (1983); and It is further ordered That GM's request for access to the Commission s internal documents be denied under Exemption 5 of the Freedom of Information Act; and It is further ordered, That GM's request for return of all copies of documents it submitted to the Commission be denied; and It is further ordered, That GM's request to make an oral presentation be denied.

Complaint 103 F.