             Inter-Departmental Disclosure of Information
               Submitted Under the Shipping Act of 1984

The Federal M aritim e Commission is not prohibited by § 6(j) of the Shipping Act of 1984 (Act)
  from disclosing to other Executive Branch departm ents or agencies information concerning
  carriage agreem ents filed pursuant to the Act, although the Act does prohibit disclosure of
  such inform ation to the public.

Section 6(j) o f the Act is patterned a fte r § 7A(h) of the Clayton Act, and the legislative history of
  the latter provision provides some indication that it might prohibit inter-departmental disclo­
  sure o f prem erger information obtained by the Justice Department under the Hart-Scott-
  R odino Act. Nonetheless, in the absence o f evidence o f legislative intent specifically to
  prohibit non-public disclosure o f Shipping Act information, it should not be inferred that
  C ongress intended to override th e general presum ption that information obtained by one
   federal governm ent agency may be freely shared among federal government agencies.

                                                                                  February 8, 1985

               M   em o ran d um     O p in io n   for th e    G   eneral      Counsel,
                             Federal M       a r it im e   C o m m is s io n


   This 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 Com­
mission from disclosing such information to other federal agencies or Execu­
tive 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
§ 6(j). 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
                                                   48
not believe § 6(j) prohibits disclosure of Shipping Act information to other
federal government agencies in general or, in particular, disclosure in further­
ance of the development of the Executive’s foreign policy objectives in inter­
national shipping.

                         I. Section 6(j) of the Shipping Act of 1984

   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).146 U.S.C. app. §§ 1704-1705.
   Section 6(j) of the Act provides:

          Nondisclosure o f 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 Free­
          dom of Information Act] and may not be made public except as
          may be relevant to an administrative or judicial action or pro­
          ceeding. 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 Infor­
          mation Form, voluntary submissions of additional information,
          reasons for noncompliance, and replies to requests for addi­
          tional information.

  1Section 6(g) provides:
     Substantially anticom petitive agreem ents
        If, at any tim e after the filing or effective date o f an agreem ent, the Commission determ ines
     that the agreem ent is likely, by a reduction in com petition, to produce an unreasonable reduction
     in transportation service o r an unreasonable increase in transportation cost, it may, after notice to
     the person filing the agreem ent, seek appropriate injunctive relief under subsection (h) of this
     section.
46 U.S.C. app. § 1705(g).

                                                       49
              (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.

46 C.F.R. § 572.608.2
   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 submit­
ted 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.




   2 T he Federal R egister contains supplem entary inform ation explaining the Shipping Act regulations. The
d escrip tio n o f S ubpart F o f the Rules, covering A ction on A greem ents, states that § 6 “preserves the
co n fid en tiality o f inform ation submitted w ith agreem ents.” 4 9 Fed. Reg. at 22302. It further states, in
referen ce to 4 6 C .F.R . § 572.608, that “ [sjectio n 6(j) o f the A ct provides that all inform ation subm itted by a
filing p arty o th er than the agreement itself shall be exem pt from disclosure under the Freedom o f Inform ation
A ct [5 U .S.C . § 552]. This section of the ru les im plem ents the A ct’s confidentiality provision ” 49 Fed. Reg.
at 22303.
   3 Section 6 (j) o f the A ct qualifies as an exem ption (b)(3) statute under the Freedom o f Inform ation Act
(F O IA ), 5 U .S.C. § 552(b)(3). FOIA “d o es not apply to m atters that are specifically exem pted from disclo­
sure by statute . . . provided that such statute (A) requires that th e matters are withheld from the public in such
a m anner as to leave no discretion on the issue, or (B ) establishes particular criteria for w ithholding or refers
to p articu lar types o f m atters to be w ithheld.” Id. The O ffice o f Legal Policy, O ffice o f Information and
Privacy, does not interpret exemption (b)(3) statutes, in general, to prohibit inter-agency disclosures o f
inform ation.

                                                          50
             II. Section 7 A of the Clayton Act, 15 U.S.C. § 18a

     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 o f premerger information relevant to a proposed acquisi­
tion 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 viola­
tions, 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 sam e two confidentiality safeguards to
       prem erger data that both the House and Senate bills applied to
       CID file s com piled 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 Gov­
       ernment cannot be forced to disclose it to the public, and second,
       the Government agencies them selves cannot discretionarily re­
       lease prem erger 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 Infor­
       mation Act not exempt from it. The compromise bill adopts the
       House provisions because premerger data compiled pursuant to
                                       51
           title II of the compromise bill will, in essence, contain the same
           kind o f information as a CID file compiled in a premerger
           investigation pursuant to title I of the compromise bill. The
           House conferees see no reason why this data should be exempt
           from the Freedom of Information Act in the one case, and
           subject to the Act in the other.
122 Cong. Rec. 30877 (1976) (emphasis added).
    We acknowledge that this statement by Chairman Rodino, one of the spon­
sors o f the legislation, may support the argument that the confidentiality
provision in Title II, § 7A(h) o f the Clayton Act, when read in conjunction with
the comparable provision in Title I, prohibits disclosure of premerger informa­
tion to anyone outside the Department o f Justice. Indeed, based upon this
reading of the legislative history, the Department’s Antitrust Division has
interpreted § 7A(h) of the Clayton Act to prohibit even non-public disclosure
o f premerger information except within the Department.4
    The Antitrust Division’s interpretation as applied to disclosure to state
officials was recently upheld in a case involving requests by state attorneys
general for premerger information submitted by private companies under the
HSR Act. M attox v. FTC, 752 F.2d 116 (5th Cir. 1985). The court determined
that disclosure to state law enforcement agencies is a “public” disclosure
within the meaning of § 7A(h). Relying on the legislative history of the HSR
Act discussed above and the plain language o f the statute, the court concluded
that disclosure o f premerger information obtained under the HSR Act is strictly
prohibited except as provided by § 7A(h), regardless of any assurance of
confidentiality.5 Although the court did not expressly consider whether § 7A(h)
also prohibits inter-agency transfers of premerger information obtained under
the HSR Act, such a result may be implicit in its holding.
    W e do not view the Fifth C ircuit’s interpretation o f § 7A(h) of the Clayton
Act to preclude a different interpretation of § 6(j) of the Shipping Act, how­
ever. Nor do we view the m ere fact that § 6(j) is modeled on § 7A(h) as
dispositive o f the scope of the prohibition in § 6(j), at least insofar as that
prohibition relates to disclosure of information among federal agencies. Rather,
without more definitive evidence of a legislative intent to prohibit non-public
disclosure of Shipping Act information specifically, we would not infer a
legislative intent to overturn the general presumption that information obtained
   4 See A n titru st D ivision M anual (V II-15). In keeping w ith its narrow reading o f this section, the A ntitrust
D ivision also has interpreted § 7A(h) to lim it disclosure o f prem erger information in adm inistrative or
ju d ic ia l proceedings to those proceedings to which eith er the A ntitrust Division or the Federal Trade
C om m ission is a party. Even in those instances, disclosure rem ains discretionary. See A ntitrust Division
M anual (III-21).
   5 T he State o f T exas had argued, inter a lia , that § 7A(h) should be construed in light o f § 6(f) o f the FTC
A ct, 15 U .S.C . § 46(f), w hich authorizes the FTC to release, at its discretion, com m ercial or Financial
inform ation, including prem erger inform ation obtained under the FTC A ct, to federal or state law enforce­
m ent agencies upon prior certification “ th at such inform ation will be m aintained in confidence and w ill be
used o n ly fo r official law enforcement purposes." In another case, the district court found this argum ent
persuasive and rejected the Antitrust D iv isio n 's interpretation o f § 7A(h) o f the C layton Act. See Lieberm an
v. F T C , 598 F. Supp. 669 (D. Conn. 1984).

                                                          52
by one federal government agency is to be freely shared among federal govern­
ment agencies.6
   It is axiomatic that all information and documents in the possession of
Executive Branch agencies are within the control of the President as the head of
the Executive Branch. Just as the President exercises supervisory control over
the execution of the laws by his subordinates, U.S. Const, art. II, § 3, the
President ensures that information within the Executive Branch is protected
from disclosure that would, in his judgment, adversely affect the public inter­
est. See Memorandum to Heads of Executive Branch Departments and Agen­
cies from President Reagan (Nov. 4, 1982).
   We believe it follows from these general constitutional principles that a
decision by Congress to restrict the flow of information among federal agen­
cies when such information relates to the performance of the official duties of
these agencies must be executed by legislation that leaves no doubt as to
Congress’ intent. Particularly regarding the development by the President of
his foreign policy, it would be untenable to read into the statute at issue here an
implied intent to deny to those subordinates of the President charged with the
formulation of foreign policy those documents and information deemed rel­
evant to that formulation.
   We would add that the President’s authority to control the flow of informa­
tion within and without the Executive Branch carries with it the power to limit
distribution o f such information within the Executive Branch. Thus, unless and
until revised by higher authority, we have no doubt about the validity and
enforceability of the present policy of the Antitrust Division of this Department
to refuse to transmit certain information gathered by it beyond this Department.
We believe the Commission is free, as a matter of law, to adopt a policy of
providing the information at issue here to other federal departments and agen­
cies that have a need for it in connection with carrying out their official
responsibilities.

                                                Conclusion

 Section 6(j) of the Shipping Act prohibits only “public” disclosure of infor­
mation obtained under that Act. Interpreting the language of that statute and its
  6 W e also have considered w hether the Privacy Act, 5 U S.C § 552a, prohibits disclosure o f Shipping Act
inform ation to other federal governm ent agencies. That act governs the circum stances under which inform a­
tion contained in records m aintained on individuals may be disclosed to the public or to other governm ent
agencies. The Privacy Act defines the term “individual” as “a citizen o f the U nited States o r an alien law fully
adm itted for perm anent residence.” Id. § 552a(a)(2). The Act defines the term “record” as
       any item, collection, or grouping o f inform ation about an individual that is m aintained by an
       agency, including, but not lim ited to, his education, financial transactions, medical history, and
       crim inal o r em ploym ent history and that contains his name, or the identifying number, symbol, or
       other identifying particular assigned to the individual, such as finger or voice print o r a photo­
       graph.
Id. § 552a(a)(4) (em phasis added) Your O ffice has informed us that com panies or conferences o f com panies,
and not individuals, file inform ation and docum entary material under the Shipping Act. Therefore, such
m aterial would not qualify as a “ record” covered by the Privacy Act and the Privacy Act would not
independently prohibit disclosure o f inform ation filed under §§ 5 o r 6 o f the Shipping Act.

                                                       53
sparse legislative history in light of the President’s constitutional responsibili­
ties regarding the control of information within the Executive Branch, we have
no difficulty concluding that information and documentary material filed with
the Commission under §§ 5 or 6 of the Shipping Act may be disclosed to other
federal agencies or Executive Branch departments without violating § 6(j).

                                                    L a r r y L . S im m s
                                          D eputy Assistant Attorney General
                                               Office o f Legal Counsel




                                        54
