212. Letter From the Chairman of the United States Tariff Commission (Sutton) to the Special Representative for Trade Negotiations (Gilbert)1

Dear Mr. Gilbert:

I have your letter of September 18, 1969, requesting the U.S. Tariff Commission to undertake the work of updating its report on non-rubber footwear made to former President Lyndon B. Johnson in January 1969 under section 332 of the Tariff Act of 1930.2 You state that the additional information is needed not later than November 3, 1969, for the use of a Task Force on Non-Rubber Footwear, consisting of senior officials of four agencies under the chairmanship of your office, which has the assignment of making recommendations to the President later this fall.3

You also request that this Task Force “be given access to certain financial and other data on selected individual firms which the Commission may have assembled in its initial section 332 investigation”. You state that, “These data would be made available to the Office [Page 545] of the Special Trade Representative and, through it to the senior members of the Task Force to assist in preparing the report to the President,” and that “The confidential nature of such data would be respected and disclosure or access would not be granted to unauthorized persons in accord with 18 U.S.C. 1905”.

The fulfillment of your request by the Commission raises certain problems which the Commission desires to call to your attention with a view toward avoiding any possible embarrassment to you and to the President. The problems arise by reason of the provisions of law governing (1) the Commission’s expenditure of its appropriated funds, and (2) the release by the Commission to other Federal agencies of confidential business data obtained by the Commission in its investigatory work.

With respect to (1) above, it will be noted that each appropriation law enacted for the Commission beginning with fiscal year 1955 has included the proviso that—

… no part of the foregoing appropriation shall be used for making any special study, investigation, or report at the request of any other agency of the executive branch of the Government unless reimbursement is made for the cost thereof.

The assistance you request is a special Commission investigation and report for which reimbursement is required by the foregoing proviso. The situation would be different, however, if the investigation and report were to be requested by the President. The proviso has no application to requests from the President under section 332(g) of the Tariff Act of 1930 since Commission compliance with such requests is mandatory under the law.

With respect to (2) above, the Commission’s obligations in regard to its handling of business confidential data are prescribed in 18 U.S.C. 1905, which provides as follows:

Whoever, being an officer or employee of the United States or of any department or agency thereof, publishes, divulges, discloses, or makes known in any manner or to any extent not authorized by law any information coming to him in the course of his employment or official duties or by reason of any examination or investigation made by, or return, report or record made to or filed with, such department or agency or officer or employee thereof, which information concerns or relates to the trade secrets, processes, operations, style of work, or apparatus, or to the identity, confidential statistical data, amount or source of any income, profits, losses, or expenditures of any person, firm, partnership, corporation, or association; or permits any income return or copy thereof or any book containing any abstract or particulars thereof to be seen or examined by any person except as provided by law; shall be fined not more than $1,000, or imprisoned not more than one year, or both; and shall be removed from office or employment.

[Page 546]

This provision merits comment on two points: (1) It does not constitute an absolute prohibition against disclosure—only disclosures “not authorized by law” are made actionable; and (2) it refers in terms to disclosures by an “officer or employee of the United States or of any department or agency thereof”. The Commission believes that the penal sanctions specified in section 1905 would apply to individual Commissioners participating in an official Commission decision to disclose confidential business information, regardless of the source of the request, unless such disclosure, as required by the statute, is “authorized by law”.

As far as the Commission is aware, the only general authority in law for the Commission to release business confidential data to another Federal agency is found in the Federal Reports Act (44 U.S.C. secs. 421-427). This Act, however, relates only to disclosure of information obtained by questionnaire from 10 or more persons and is otherwise circumscribed in its application. In this connection, section 4(b) (44 U.S.C. 423(b)) provides:

Information obtained by a Federal agency from any person or persons may, pursuant to this chapter, be released to any other Federal agency only if (1) the information shall be released in the form of statistical totals or summaries; or (2) the information as supplied by persons to a Federal agency shall not, at the time of collection, have been declared by that agency or by any superior authority to be confidential; or (3) the persons supplying the information shall consent to the release of it to a second agency by the agency to which the information was originally supplied; or (4) the Federal agency to which another Federal agency shall release the information has authority to collect the information itself and such authority is supported by legal provision for criminal penalties against persons failing to supply such information.

These severe limitations on disclosure of information, the Commission believes, eliminate any possibility that the Federal Reports Act may be used as authority for the Commission to disclose to your agency the business confidential data you have requested.

Again, as with the matter of appropriations, the limitations on disclosure of information do not apply when in individual cases the President requests the Commission to provide such information to him under authority of section 332(g). Section 332(g) provides in pertinent part that—

The Commission shall put at the disposal of the President of the United States, … whenever requested, all information and its command, and shall make such … investigations and reports as may be requested by the President … .

The Commission regards this language as sufficiently broad to include the furnishing to the President of any confidential business data [Page 547] which he might request. In other words, a disclosure of such information to the President would be “authorized by law” and therefore not prohibited by the penal sanctions of 18 U.S.C. 1905.

In addition to the legal questions involved in the disclosure of confidential information, the Commission through the years has been keenly aware of the practical considerations involved in making such disclosures. In conducting its investigatory functions, the Commission has enjoyed the confidence of the many business interests with whom it comes in contact, by scrupulously fulfilling its obligations to protect from disclosure business data received from them.

In view of the foregoing, I am certain you can appreciate the reasons which require the U.S. Tariff Commission to deny your request as contained in your letter of September 18, 1969.

Sincerely yours,

Glenn. W. Sutton
  1. Source: National Archives, RG 364, Office of the Special Representative for Trade Negotiations: Lot 78 B 1, Nonrubber Footwear—Options Papers by Agencies Other Than STR. No classification marking.
  2. The September 18 letter is ibid. The report to President Johnson has not been further identified. See also footnote 3, Document 236.
  3. The four agencies were the Departments of Labor, Commerce, Treasury, and State. Background on the creation of the Presidential Task Force on Footwear is in a memorandum for the record, September 3. (National Archives, RG 364, Office of the Special Representative for Trade Negotiations: Lot 78 B 1, Submissions, Views on Nonrubber Footwear Study)