Inter-Departmental Disclosure of Information Submitted Under the Shipping Act of 1984, 85-5
| Decision Date | 08 February 1985 |
| Docket Number | 85-5 |
| Citation | 9 Op. O.L.C. 48 |
| Parties | Inter-Departmental Disclosure of Information Submitted Under the Shipping Act of 1984 |
| Court | Opinions of the Office of Legal Counsel of the Department of Justice |
The Federal Maritime Commission is not prohibited by § 6(j) of the Shipping Act of 1984 (Act) from disclosing to other Executive Branch departments or agencies information concerning carriage agreements filed pursuant to the Act although the Act does prohibit disclosure of such information to the public.
Section 6(j) of the Act is patterned after § 7A(h) of the Clayton Act, and the legislative history of the latter provision provides some indication that it might prohibit inter-departmental disclosure of premerger information obtained by the Justice Department under the Hart-Scott-Rodino Act. Nonetheless, in the absence of evidence of legislative intent specifically to prohibit non-public disclosure of Shipping Act information, it should not be inferred that Congress intended to override the general presumption that information obtained by one federal government agency may be freely shared among federal government agencies.
MEMORANDUM OPINION FOR THE GENERAL COUNSEL, FEDERAL MARITIME COMMISSIONThis responds to your inquiry whether § 6(j) of the Shipping Act of 1984 (Act), 46 U.S.C. app. § 1705(j), prohibits disclosure by the Federal Maritime Commission (Commission) of information and documentary material filed with the Commission under §§ 5 or 6 of the Act to other federal agencies or Executive Branch departments. Your request for an interpretation of § 6(j) arises in the context of certain international water carriage agreements filed or to be filed with the Commission that involve shipping routes with countries that have entered into bilateral agreements with the United States. The Commission may wish to disclose the information filed with those agreements to the Departments of State and Transportation when the bilateral agreements are renegotiated. Assuming that § 6(j) does not create an absolute prohibition against disclosure, your letter also inquires whether § 6(j) prohibits the Commission from disclosing such information to other federal agencies or Executive Branch departments where there is a showing that the information is necessary for the development of United States foreign policy objectives with respect to international shipping.
In this memorandum, we consider the language and legislative history of § 60). We also consider § 7A of the Clayton Act, 15 U.S.C § 18a, upon which the Shipping Act is expressly modeled. For the reasons discussed below, we do [ 49] not believe § 6(j) prohibits disclosure of Shipping Act information to other federal government agencies in general or, in particular, disclosure in furtherance of the development of the Executive's foreign policy objectives in international shipping.
The Shipping Act of 1984 authorizes the Commission to receive for filing certain agreements that, if not declared unlawful by the Commission or the courts, are exempt from the antitrust laws. 46 U.S.C. app. §§ 1703-1706. The Act also authorizes the Commission to describe the form and manner in which an agreement is to be filed and, under § 6(d), to require the submission of such information and documents as may be necessary to evaluate the agreement under the substantive standard set forth in § 6(g).[1] 46 U.S.C. app §§ 1704-1705.
Section 6(j) of the Act provides:
Nondisclosure of submitted material
Except for an agreement filed under [§ 5], information and documentary material filed with the Commission under [§ 5] is exempt from disclosure under section 552 of Title 5 [the Freedom of Information Act] and may not be made public except as may be relevant to an administrative or judicial action or proceeding. This section does not prevent disclosure to either body of Congress or to a duly authorized committee or subcommittee of Congress.
The Commission has promulgated regulations to implement the Act. See 49 Fed. Reg. 22296 (1984); 49 Fed. Reg. 24697 (1984) (codified at 46 C.F.R. Part 572). The regulations also provide for the confidential treatment of submitted material:
(a) Except for an agreement filed under section 5 of the Act all information submitted to the Commission by the filing party will be exempt from disclosure under 5 U.S.C. 552. Included in this disclosure exemption is information provided in the Information Form, voluntary submissions of additional information, reasons for noncompliance, and replies to requests for additional information. [ 50] (b) Information which is confidential pursuant to paragraph (a) of this section may be disclosed, however, to the extent: (1) It is relevant to an administrative or judicial action or proceeding; or (2) It is in response to a request from either body of Congress or to a duly authorized committee or subcommittee of Congress.
On its face, § 6(j) merely prohibits public disclosure of information and materials filed with agreements under the Act.[3] Because the Commission proposes to disclose Shipping Act information to other federal government agencies, the relevant question here is whether § 6(j) also prohibits non-public disclosure of such information.
The legislative history of the Act is not helpful in answering this question. The report of the Senate and House conferees on S. 47, the bill which became the Shipping Act, merely states that "subsection (j) provides for confidential treatment of any information submitted under this section." H.R. Conf. Rep. No. 600, 98th Cong., 2d Sess. 30 (1984), reprinted in 1984 U.S.C.C.A.N. 283, 286. The House Report to accompany H.R. 1878, which was not enacted, explains that the provision for confidential treatment in that bill grants an exemption under the Freedom of Information Act for all information and documentary materials, other than the agreement itself, that have been submitted to the Commission pursuant to §§ 4 and 5. H.R. Rep. No. 53 (II), 98th Cong., 1st Sess. 31 (1983), reprinted in 1984 U.S.C.C.A.N. 167, 251. The original bill, S. 47, contained no comparable section providing for confidential treatment of submitted materials. No Senate Report was submitted with this legislation. The legislative history otherwise appears to be silent with regard to the confidentiality provision.
Thus, nothing in the language or the legislative history of § 6(j) expressly prohibits the type of non-public disclosure contemplated here of confidential information submitted under the Shipping Act. [ 51]
The agreement review procedure established under § 6 of the Shipping Act is modeled expressly on the procedures governing premerger clearance of proposed acquisitions and mergers under § 7A of the Clayton Act, as added by the Hart-Scott-Rodino Antitrust Improvements Act of 1976 (HSR Act). See H.R. Conf. Rep. No. 600, at 30, reprinted in 1984 U.S.C.C.A.N. at 286; see also 49 Fed. Reg. at 22301. Section 7A(h) of the Clayton Act provides for confidential treatment of premerger information relevant to a proposed acquisition submitted for approval to the Federal Trade Commission. The relevant language of § 7A(h) is identical to § 6(j) of the Shipping Act.
The legislative history of the HSR Act concerning premerger information provides little more elucidation on the scope of the prohibition against public disclosure than the legislative history of § 6(j) of the Shipping Act. The House Report to accompany H.R. 14580, Title II of the HSR Act, merely states that "premerger information submitted under this section is confidential, and may not be disclosed, except in judicial or administrative proceedings." H.R. Rep. No. 1373, 94th Cong., 2d Sess. 6 (1976), reprinted in 1976 U.S.C.C.A.N. 2572, 2638. However, Chairman Rodino's remarks comparing the confidentiality provision in Title II of the HSR Act to a confidentiality provision in Title I of that Act shed some light on the meaning of the provision in Title I.
Title I amended the Antitrust Civil Process Act of 1962 by broadening the availability of civil investigative demands (CID) to investigate antitrust violations, see generally H.R. Rep. No. 1343, 94th Cong., 2d Sess. 1-4 (1976), reprinted in 1976 U.S.C.C.A.N. 2596, 2596-98, but retained the prohibition that no information produced in response to a CID "shall be available for examination, without the consent of the person who produced such [information] ... by any individual other than a duly authorized official, employee, or agent of the Department of Justice." 15 U.S.C. § 1313(c)(3). Title I also provided that information produced in response to a CID is exempt from disclosure under the Freedom of Information Act. Id. § 1314(g).
Against this background, Chairman Rodino explained:
The House applied the same two confidentiality safeguards to premerger data that both the House and Senate bills applied to CID files compiled pursuant to title I of the compromise bill. These two safeguards provide that, first, the premerger data is exempt from the Freedom of Information Act, so that the Government cannot be forced to disclose it to the public, and second, the Government agencies themselves cannot discretionarily release premerger data to anyone, but can disclose it only in "judicial or administrative proceedings." In contrast, the Senate bill made the premerger data "subject" to the Freedom of Information Act not exempt from it. The compromise bill adopts the House provisions because premerger data compiled pursuant to [ 52] title II of the compromise bill will, in...
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