UNITED STATES OF AMERICA
In the Matter of
E.I. DUPONT DE NEMOURS & COMPANY, a corporation.
Docket No. 9108
ORDER EXTENDING IN CAMERA TREATMENT
During the adjudicative hearings in this matter, Administrative Law Judge Miles J. Brown ordered that certain trial exhibits be placed in camera until September 4, 1979. Judge Brown issued a second order on August 10, 1979, which granted in camera treatment to those exhibits until the date the Commission issued its final order or until such time as the Commission ordered otherwise. In response to motions filed by respondent, E. I. DuPont de Nemours & Co. ("Dupont"), the Commission issued orders dated January 21, 1981, and June 12, 1984, both of which granted three year extensions of in camera treatment. On April 25, 1990, the Commission issued an order granting in camera treatment for forty-seven pages of detailed cost information for a period of ten years.(1) The latter extension has now expired, and respondent, by motion filed on April 5, 2000 as amended on September 19, 2000,(2) requests that in camera treatment of the identified exhibits be continued indefinitely or, in the alternative, that it be extended for ten more years with a provision for further extension of in camera treatment upon a showing of good cause.
Respondent asserts that the exhibit pages presently at issue have an "unusual competitive sensitivity because of the detailed cost information they contain" and their release would cause it to suffer "clearly defined, serious injury." Respondent further maintains that its competitors, if granted access to such detailed cost information, could ascertain DuPont's current costs through the use of sophisticated extrapolation techniques.
The Commission concludes that the remaining exhibit pages not only continue to meet the standard for in camera treatment set forth in H.P. Hood & Sons, Inc., 58 F.T.C. 1184 (1961) as refined by Bristol-Myers Co., 90 F.T.C. 455 (1977), and General Foods Corp., 95 F.T.C. 352 (1980), but that they also possess a uniqueness that has extended their competitive sensitivity in excess of the three year period normally considered adequate for confidential business data to lose most of its competitive utility. The Commission also concludes that the competitive value of this type of data does not quickly diminish since it has retained the potential to inflict serious competitive injury upon DuPont for over twenty years.
Given the unusual level of detailed cost data contained in these specific trial exhibit pages, the existence of precise extrapolation techniques, and the limited amount of technological innovation that has occurred in the TiO2 industry, the Commission finds that respondent has made a sufficient showing that these particular data merit protection for another ten years.
The Commission, however, is not persuaded that in camera treatment should be granted for an indefinite time. Applicants seeking indefinite in camera treatment must demonstrate "at the outset that the need for confidentiality of the material is not likely to decrease over time." 54 Fed. Reg. 49,279 (1989). When considering a previous request for indefinite in camera treatment of respondent's exhibits, the Commission noted:
1990 FTC LEXIS 134 at *3; 1990; Commission Order of April 25, 1990 at 2 citing Commission Order of June 12, 1984 at 2. Although the Commission can conclude that the information is likely to remain sensitive during the next ten years, respondent has not shown that the information is unlikely to lose its sensitivity at some time in the future.
IT IS THEREFORE ORDERED that the following exhibits presently in the in camera record of Docket No. 9108 shall remain in camera for ten years from the date of this Order, at which time respondent may show cause why these documents should not be made public:
Exhibit Numbers Document Numbers
* Redacted portions of these exhibit pages will be placed on the public record consistent with Exhibit B of DuPont's September 19, 2000 Amended Motion .
IT IS FURTHER ORDERED that the Secretary shall place on the public record, no sooner than 10 calendar days after receipt of this notification by the respondent and once all documents are located, the remaining exhibits that were identified in and subject to the Commission's April 25, 1990 in camera order in this matter as well as the portions of the above exhibit pages for which in camera treatment is not granted.
By the Commission.
Benjamin I. Berman
ISSUED: December 21, 2000
1. This order responded to DuPont's motion of December 11, 1989, which withdrew an earlier motion, filed June 9, 1987, that requested continued in camera treatment for each of the 283 trial exhibit pages subject to the Commission's June 12, 1984 Order.
2. The September 19, 2000 amendment to DuPont's initial motion excluded from its request portions of exhibit pages relating to closed plants or to plants using a process that DuPont no longer uses.