ML19281B172
| ML19281B172 | |
| Person / Time | |
|---|---|
| Issue date: | 04/23/1979 |
| From: | Gossick L NRC OFFICE OF THE EXECUTIVE DIRECTOR FOR OPERATIONS (EDO) |
| To: | Freedkin S PUBLIC INTEREST RESEARCH GROUP |
| References | |
| FOIA-79-A-5 NUDOCS 7905010041 | |
| Download: ML19281B172 (2) | |
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s April 23, 1979 Mr. Steven Freedkin Public Interest Research Group in Michigan 590 Hollister Bldg.
106 W. Allegan Street IN RESPONSE REFER Lansing, Michigan 48933 10 F01A-79-A-5
Dear Mr. Freedkin:
This is in response to your letter to me dated March 15, 1979, appealing Mr. Joseph M. Felton's October 26, 1978, initial denial of your Freedom of Information Act (F0IA) request of September 26, 1978.
That request asked for a copy of Section 4.C of the General Agreement between Dow Chemical Company and the Consumers Power Company dated June 21, 1978.
Acting on your appeal, I have carefully reviewed Section 4.C and I have determined that this material is exempt from compelled disclosure under exemption (4) of the Freedom of Information Act (5 U.S.C. 552(b)(4)) and i
10 CFR 9.5(a)(4) of the Commission's regulations because the material contains confidential business (proprietary) information of the Dow Chemical Company, and that disclosure of such information would be contrary to the public interest.
Your appeal with regard to Section 4.C is therefore denied.
j The fourth exemption of the Freedom of Information Act excludes N i
mandatory public disclosure matters that are " trade secrets and commercial l
om or financial information obtained from a person and privileged or confidential," 5 U.S.C. 552(b)(4).
The test for determining whether commercial or financial matters are " confidential" within the meaning of the exemption is dependent upon whether disclosure of the information is likely to have either of two effects:
(1) impair the Government's ability to obtain necessary information in the future; or (2) cause substantial harm to the competitive position of the person from whom the information was obtained.
National Parks and Conservation Association
- v. Morton, 498 F.2d 765, 770 (D.C. Cir.1974).
Further, the exemption may be invoked even though the Government itself has no interest in keeping the information secret.
Id.
The material at issue here, a section of the General Agreement entitled
" Monthly Rate," contains data which reveals both the rates which Dow is to pay for process steam and the methods for determining these rates.
This information is considered by Dow to be confidential business data.
70050100'//
It was furnished to the NRC together with an affidavit (submitted under 10 CFR 2.790(b) of the Commission's regulations) setting forth the basis upon which Dow seeks to have the data withheld from public disclosure.
Dow argues that its Michigan Division manufactures a line of chemical and plastic products and that the cost of energy constitutes a significant portion of the cost of manufacturing these products.
The release of Dow's energy costs to those who market similar products would provide these competitors with data regarding a significant component of Dow's production costs.
Dow alleo2s that reler se of this data to its competitors would cause substantial harm to Dow's competitive position.
- Moreover, Dow indicates that it is interested in reselling process steam to others.
Dow is presently negotiating.these arrangements.
Dow alleges that disclosure of the information at issue here would impair its negotiating position.
On the basis of these arguments and in view of the supporting information furnished by Dow, I have concluded that public disclosure of the material sought to be released here poses the likelihood of causing substantial harm to the competitive position of the Dow Chemical Company. Accordingly, I have determined that Section 4.C of the General Agreement falls within the purview of exemption (4) of the F0IA and is exempt from public dis-closure.
On appeal you urge that the non-exempt portions of the report be released to you.
In this regard, Dow has been requested to review the material at issue to determine what portions, if any, are no longer proprietary.
In the event that a change of position occurs as a result of this review, you will be advised as to any material that can be released.
This determination is a final agency action.
As set forth in the Freedom of Information Act (5 U.S.C. 552(a)(4)(B)), judicial review of this decision is available in a district court of the United States in either the district in which you reside, have your principal place of business or in the Di, strict of Columbia.
Sincerely, 7
Lee V. Gossick Executive Director for Operations
.