Mr. Cook. I don't know, sir. Mr. DINGELL. Would you tell us, please? Mr. DINGELL. And give us copies of them? Mr. Cook. Yes, sir. [Subsequently, the subcommittees were advised that "the Concessioner Annual Financial Report was last revised in 1968. The form is No. 10-356 with a revision date of April 1968. Attached is a copy of this report." The report is in the subcommittees' files.] [NOTE.-Memorandums and letters relating to disclosure of financial statements of concessioners under the Freedom of Information Act follow:] Mr. and Mrs. DAVE GUNNISON, 1044 S. Brys Drive, JUNE, 14, 1971 Grosse Pointe Woods, Mich. DEAR MR. AND MRS. GUNNISON: Please excuse the lateness of this letter which I promised would be forthcoming in response to the questions you asked during our late April meeting. One of the points of our discussion was concessioner activities. You mentioned the land assigned to concessioner needs. These needs are really somewhat infinitesimal when the total area of the park is considered-the assigned area is less than 1/1200 of the total park area. The concentration of 4/10 of the concessioners' developed areas, which is only 190 acres, in Yosemite Valley where visitation impact is the greatest is highly visible. But, visitor services are provided in locations where needed. The financial statements of concessioners are privileged information. We may share with you, however, the franchise fee formulae for the concessioners. The Yosemite Park and Curry Company has a base franchise fee of $5,000 per annum plus a sum equal to three-fourths of one percent (%) of their gross receipts. Degnan's has a base fee of $250 per annum plus one-half of one percent (%%) of the first $100,000 of gross receipts; plus one percent (1%) of the next $100,000 of such gross receipts; and one and one-half percent (12%) of all such gross receipts in excess of $200,000. Best Studio, as another example, has a base fee of $265 per annum plus five percent (5%) of their gross receipts. As can be noted from the above, the fee structure varies from concessioner to concessioner, and this is necessary due to the type and scope of their individual business operations. We should explain that the franchise fees paid by concessioners are secondary to the offering of necessary services and goods for visitors. A second point of our discussion that needed amplification was the visitor and campground statistics. This information is arrayed for a five-year period on the enclosed sheet. The monies collected as entrance and special user (campground) fees for 1970 in Yosemite totalled $950,497.05. All of these collections were deposited in the Land and Water Conservation Fund. From my notes and recollection I have covered those items which needed fuller explanation. Again, thank you for taking the time to come in and visit with me about the management of Yosemite. It is through dialogues like we had that visitor reaction is learned, and based on such assessments management programs are changed and improved. I hope that the remainder of your extended trip is pleasant and rewarding. Sincerely yours, Enclosure. Memorandum: WAYNE B. CONE, OCTOBER 25, 1972. To: Directors, Midwest, Northeast, Pacific Northwest, Southeast, Southwest and Western Regions, and National Capital Parks. From: Acting Associate Director. Subject: Review of concessioner annual financial reports. The concession contracts and permits contain provisions requiring the concessioner to submit annual financial statements on Form No. 10-356, Concessioner Annual Financial Report. Because of the decentralization of Concessions Management personnel from the Washington Office to the Regional Offices, the responsi bility for review and verification of the annual financial reports will be with each Region. This is to be effective with the financial statements to be submitted for the 1972 operating year. In order for the financial statements to be reviewed by each Region in a uniform manner, we have prepared and are enclosing a "Guide for Reviewing Annual Financial Reports". This guide should be considered a "minimum guide" and additional reviews as considered necessary should be performed. If discrepancies are noted after reviewing the financial statements, the Regions should notify the concessioner and request an explanation and/or corrective action. A copy should be forwarded to this office to the attention of Concessions Management. Any questions relating to the review of the concessioner annual financial reports should be addressed to this office to the attention of Concessions Management. In addition, the Regions should be familiar with the Concessions Manage ment Guidelines No. 4-Accounting Records and Reports. Enclosure. JOSEPH C. RUMBURG, Jr. GUIDE FOR REVIEWING ANNUAL FINANCIAL REPORTS (AFR) A. GENERAL INFORMATION 1. Ascertain that the report is complete and that all schedules have been submitted by the concessioner. 2. Light pencil "check marks" should be shown next to all items and amounts that are verified and reviewed. 3. All schedules should be added and cross-footed. 4. After verifying and reviewing the report, sign and date the upper right-hand corner of the financial report. 5. Notify the concessioner of all discrepancies and request an explanation and/or corrective action. Forward a copy of letter to the attention of Concessions Management. B. SPECIFIC ITEMS TO BE VERIFIED 1. Verify the contract or permit number and the term of the contract or permit to our copy of the contract or permit. 2. Verify the franchise fee rate to the rate in the contract or permit. a. Are the flat fee and rate correct? b. Are the exclusions, if any, proper? c. Are the calculations correct? d. Has the franchise fee been paid? 3. Form 10-356: a. Form 10-356a (Annual Report of Capital Improvements to Concessions Facilities): (1) Check the total amount shown in Column 2 with the total shown on line 2, column g, Schedule J. 4. Check the amounts carried forward from the prior year's AFR. They should be equal. 5. Compare the entries on the current AFR with the prior AFR for any unusual differences, especially Schedules A, E, G, and O. Any major increase in Schedule E and any change in Schedule G should be noted since they require prior approval from the Service. 6. For proprietorships and partnerships, verify that the salaries of the owner or partners have been shown as withdrawals from Net Worth and not as expenses in Schedule D. C. These instructions are not to be construed as restrictive. If any other difficulty or question occurs, it should be investigated thoroughly. Any questions or comments should be referred to the attention of Concessions Management. Memorandum: U.S. DEPARTMENT OF THE INTERIOR, NATIONAL PARK SERVICE, Washington, D.C., April 2, 1973. To: Directors, Midwest, Northeast, Pacific Northwest, Southeast, Southwest and Western Regions, and National Capital Parks. From: Assistant Director. Subject: Denial of requests for financial information. The Service has from time to time been requested to furnish or make available financial information submitted by concessioners. As you know, financial information on concessioners is to be treated in strict confidence and is not to be disclosed to anyone unless specifically authorized by law. We have recently received from the Solicitor's Office, language which must be used in responding to requests for financial information. A copy of the language to be used in responding to such requests is enclosed. LAURENCE C. HADLEY. THIS LANGUAGE MUST BE USED IN DENIALS OF REQUESTS FOR FINANCIAL INFORMATION We regret that we are unable to furnish information as to concessioner's earnings because under the fourth exemption of the Freedom of Information Act, 5 U.S.C. § 552 (b)(4) (1974) this information is considered "commercial or financial information obtained from a person and privileged or confidential". See: National Parks and Conservation Association v. Morton, 351 F. Supp. 409 (D.D.C. 1972). In addition, we have consistently refused disclosure of this information in view of the expressed Congressional policy that confidential information should not be released by employees of the United States. See: 18 U.S.C. § 1905 (1970). Pursuant to 43 Code of Federal Regulations § 2.2(b) (1972) we are informing you that an applicant may appeal from a determination that a record is not available for inspection to the Solicitor of the Department of the Interior. Mr. VICTOR H. KRAMER, JUNE 28, 1973. Director, Institute of Public Interest Representation, Georgetown University Law Center, Washington, D.C. DEAR MR. KRAMER: Your letter of December 29, 1972, enclosed a Petition for rule making together with proposed rules for the Concessions Management functions of the National Park Service and for the establishment of citizen advisory commissions. The National Park Service has reviewed the Petition carefully and with considerable interest. We have considered the overall import of your proposals for rules both strategically and from a tactical administrative point of view. We interpret the basic thrusts of your petition to be to construct a means by which the public may be provided additional opportunities for meaningful input in the concessions contracting sequences; and additionally to bring to the forefront the overriding environmental considerations of park resource protection in this sequence. We have mutual goals in this regard but we may have differing views of how to attain these goals. To bring into clearer focus the National Park Service's existing policies and administrative procedures we wish to clearly state that the public does have a vital role to play in our decision making process and that the public is consulted and the public's views are given consideration. The concessions contracting and renewal sequence are a part of the "last mile" of implementing decisions that have been developed through our master planning process. The contracting sequence is not where the essential far-reaching decisions and search for alternatives take place. It is the master planning process where public input is formally and informally sought and considered by the National Park Service master plan teams. It is in the master planning process when all the concession planning alternatives are examined and the public is afforded the opportunities for input. New concessions are not proposed unless they have been identified in an approved plan. Public input at a much later time during the contract sequence, as you sug gest, is out of place, as the primary direction and type of concession, or even whether there is or is not to be a concession are already decided during the master planning sequence. We also should explain our additional reluctance to implement sweeping changes in concessions management policies and administration. At this time there are several in-depth, on-going, studies of concession policies and administration in progress. These include a study by the Secretary of the Interior's Advisory Board on National Parks, Historic Sites, Buildings and Monuments (a citizen's advisory group), and a study by the Small Business Administration at the request of the Senate Select Committee on Small Business which is a part of a larger study of Small Business Enterprises in Outdoor Recreation and Tourism by the Committee. This study includes a detailed study of conces sions in the areas of the National Park System. The National Park Centennial Commission also has under consideration for development of final recommendations to the National Park Service, the Conservation Foundation Report, National Parks for the Future, which contains broad concessions policy recommendations. In light of these broad based studies we do not feel that it would be appopriate to implement changes in the concessions management program such as those in your petition. When all of the above studies are completed and we have received the recommendations of each we will analyze them, along with your recommendations, to determine how best to strengthen the concessions management program. With regard to your recommendation concerning the establishment of unit advisory committees for individual areas of the National Park System, we do not believe that the establishment of such a large number of committees (for 298 areas) would provide benefits which would justify the required expenditures of funds and manpower. The National Park Service developed the concept of regional advisory committees in order to provide for citizen input and advice on policies affecting the National Park Service regions, in a reasonable manner which would avoid duplicative and wasteful proliferation of advisory groups. Subsequently, the enactment of the Federal Advisory Committee Act, P.L. 92-463, indicates a Congressional intent to restrict the proliferation of advisory groups within the Executive Branch. We would also point out that numerous groups having an interest in particular Park System areas submit their views to the Superintendents without the formality of an advisory committee. These views have always been welcomed, and will continue to be welcomed in the future. We reviewed your proposed regulations regarding the disclosure of financial interests by National Park Service Personnel in concession operations and would like to point out that there are presently regulations on this subject. The regu lations of the Department of the Interior require that National Park Service personnel having supervisory responsibilities over the granting of concession contracts disclose their financial interests. See, 43 Code of Federal Regulations, Part 20 and Appendix. For the several reasons which we explained above, we will not implement sweeping changes in our concessions management program at this time and therefore must deny your petition. Sincerely yours, RAYMOND L. FREEMAN, Memorandum: U.S. DEPARTMENT OF THE INTERIOR, To: Director, National Park Service. From: Assistant Solicitor, Parks and Recreation. Subject: National Parks and Conservation Association v. Morton-Disclosure of concessioner financial information. Enclosed is a copy of the Court of Appeals decision in the subject case, in which the Court remanded this matter to the district court for further proceedings. The Court of Appeals held that commercial or financial information is "confidential" for the purposes of the fourth exemption in the Freedom of Information Act, 5 U.S.C. 552(b)(4), if the disclosure of the information is likely to have either of the following effects: (1) to impair the government's ability to obtain necessary information in the future; or (2) to cause substantial harm to the competitive position of the person from whom the information was obtained. In summary the Courts said: "This matter is, therefore, remanded to the district court for the purpose of determining whether public disclosure of the information in question poses the likelihood of substantial harm to the competitive positions of the party from whom it has been obtained. If the district court finds in the affirmative, then the information is confidential within the meaning of section 552(b) (4) and exempt from disclosure. If only some parts of the information are confidential, the district court may prevent inappropriate disclosure by excising from otherwise disclosable documents any matters which are confidential in the sense that word has been construed in this opinion." Accordingly, the Park Service should give consideration to and advise this office with respect to whether the disclosure of the financial information provided by the concessioners would place the concessioners at a competitive disadvantage. We would also appreciate your recommendation with respect to a possible appeal of this case. It is the view of this office, however, that the United States should not petition the Supreme Court for writ of certiorari to review the Court of Appeals' decision. DAVID A. WATTS. Notice: This opinion is subject to formal revision before publication in the Federal Reporter or U.S. App. D.C. Reports. Users are requested to notify the Clerk of any formal errors in order that corrections may be made before the bound volumes go to press. UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT No. 73-1033 NATIONAL PARKS AND CONSERVATION ASSOCIATION, APPELLANT บ. ROGERS C. B. MORTON, SECRETARY, DEPARTMENT OF THE INTERIOR, ET AL. Appeal from the United States District Court for the District of Columbia Decided April 24, 1974 Richard B. Wolf, with whom Victor H. Kramer and John F. Dienelt were on the brief, for appellant. Lawrence H. Wechsler, Assistant United States Attorney, with whom Harold H. Titus, Jr., United States Attorney at the time the brief was filed, John A. Terry and Arnold T. Aikens, Assistant United States Attorneys were on the brief for appellees. Earl J. Silbert also entered an appearance for appellees. Before: BAZELON, Chief Judge, and WRIGHT and TAMM, Circuit Judges. Opinion for the Court filed by Circuit Judge TAMM. TAMM, Circuit Judge: Appellant brought this action under the Freedom of Information Act, 5 U.S.C. § 552 (1970), seeking to enjoin officials of the Depart |