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The Voluntary Trade Council
 
Post Office Box 100073Tel/Fax: (703) 740-8309 Arlington, Virginia 22210www.voluntarytrade.org
October 7, 2005Richard L. Huff & Daniel J. MetcalfeCo-DirectorsOffice of Information and PrivacyU.S. Department of JusticeFlag Building, Suite 570Washington, DC 20530
Re:FOIA/PA Appeal – FOIA Request No. ATFY05-092
Dear Messrs. Huff & Metcalfe:On behalf of the Voluntary Trade Council (VTC) and acting under theFreedom of Information Act, 5 U.S.C. § 552, and 28 C.F.R. § 16.9, I file this appealof the adverse determination of Ann Lea Richards dated August 10, 2005,rejecting in part a FOIA request filed by VTC.On June 30, 2005, VTC filed its FOIA request with Ms. Richards seekingdocuments held by the Antitrust Division that met the following descriptions: (1)any agreement between the Division and Micron Technology, Inc., made underthe Division’s Corporate Leniency Policy; (2) any communication between theDivision and any officer or counsel for Micron Technology, Inc., dated on or after July 1, 2002; and (3) any communication between the Division and any memberor agent of the United States Congress related to Micron Technology, Inc. datedon or after July 1, 2002.In her August 10 letter, Ms. Richards granted only VTC’s third requestand provided two pages or responsive documents. She advised us that anydocuments related to our first two requests were exempt from public disclosureunder FOIA Exemption 7(A), because they “relate to ongoing enforcementproceedings and their disclosure could reasonably be expected to interfere withsuch proceedings.” She did not elaborate any further on the nature of theproceedings involved, or how granting VTC’s request might interfere.In this appeal, VTC will address only the first part of its request—publicaccess to any agreement made by the Antitrust Division and Micron under theCorporate Leniency Policy (CLP). In August 1993, the Antitrust Divisionannounced a revised CLP whereby a company could receive amnesty from
 
criminal antitrust prosecution under one of two circumstances: If a companyreports illegal activity before the Division has commenced an investigation,amnesty is automatically granted; or, alternatively, if an investigation hasalready begun, amnesty may be awarded at the Division’s discretion to the firstcompany to come forward.The Division has chosen not to publicly disclose any amnesty agreementsmade under the CLP. Nevertheless, companies often voluntarily disclose theirparticipation in CLP, and it is usually possible to determine an amnesty recipientbased on the other members of a purported cartel that are prosecuted by theAntitrust Division.In June 2002, media outlets reported that the Antitrust Division hadopened an investigation into allegations of price-fixing in the dynamic randomaccess memory (DRAM) market. A Micron spokesman said at the time that thecompany did not believe that it had violated federal antitrust laws, but it wouldnonetheless cooperate with the Division’s investigation. However, in December2003, former Micron executive Alfred Censullo pleaded guilty to obstructing thegrand jury’s investigation of the DRAM market.Two of Micron’s competitors, Infineon Technologies AG and HynixSemiconductor Inc., have pleaded guilty to price-fixing charges as the result ofthe Antitrust Division’s investigation. Several individuals also pleaded guilty inconnection with the DRAM investigation. Micron was not charged criminallydespite being implicated in the conspiracy with Infineon and Hynix.On November 11, 2004, responding to media reports, Micron chiefexecutive Steven Appleton issued a press release that stated, in part:The DOJ’s investigation revealed evidence of price fixing byMicron employees and its competitors on DRAM sold to certaincomputer and server manufacturers. Nevertheless, if Micronfully complies with the Corporate Leniency Policy, Micron willnot be subject to criminal sanctions or fines, notwithstandingMicron’s involvement in the misconduct.
1
The Antitrust Division has not publicly confirmed or denied Micron’s claim thatit is participating in the CLP.
1http://micron.com/news/corporate/2004-11-10_micron_responds.html
The Voluntary Trade CouncilPage 2 
 
According to the Antitrust Division, when a company seeks amnestyunder the CLP, it is given a “model letter” outlining the conditions andqualifications for participation. This model letter, in turn, forms the basis of asigned agreement between the Division and the amnesty recipient.
2
Presumably,then, Micron was given a copy of the model letter and later signed a writtenagreement to confirm its amnesty under the CLP. This agreement is the subject ofVTC’s FOIA request.Had Micron been the subject of a plea agreement, as was the case withInfineon and Hynix, a FOIA request would be unnecessary. Plea agreements arecourt documents and thus a matter of public record. Indeed, the AntitrustDivision published the Infineon and Hynix plea agreements on its website.
3
 Amnesty agreements, like plea agreements, are contracts between thegovernment and the subject of a criminal investigation. Both provide for thedisposition of outstanding criminal charges in exchange for cooperation withongoing investigations. The only difference is that a plea agreement is subject toapproval and supervision by an Article III court, while the CLP is wholly acreature of the Antitrust Division and subject only to “prosecutorial discretion.”FOIA Exemption 7(A) applies to “records or information compiled for lawenforcement purposes, but only to the extent that the production of such lawenforcement records or information . . . could reasonably be expected to interferewith enforcement proceedings.”
4
Assuming that the Antitrust Division’sinvestigation of the DRAM market remains an ongoing proceeding, the issuehere is whether release of the Division’s amnesty agreement with Micron “couldreasonably be expected to interfere” with the investigation. Neither Ms.Richards’ letter to VTC nor any applicable case law interpreting Exemption 7(A)demonstrates that it would.The seminal Supreme Court case on Exemption 7(A) is
NLRB v. RobbinsTire & Rubber Co.
5
. In that case, the subject of a National Labor Relations Boardproceeding attempted to use FOIA to obtain the statements of witnesses that theagency planned to call before an administrative hearing. The Court held thatFOIA was “not intended to function as a private discovery tool,” and thatrequiring the disclosure of the witness statements would “interfere” with the
2See
Brief for Appellant United States of America,
Stolt-Nielsen v. United States
(3
rd
Cir. May 17, 2005)(available at http://www.usdoj.gov/atr/cases/f209100/209127.htm).3http://www.usdoj.gov/atr/cases/f209200/209231.htm (Hynix plea agreement) andhttp://www.usdoj.gov/atr/cases/f206700/206700.htm (Infineon plea agreement).45 U.S.C. § 552(b)(7)(A).5437 U.S. 214 (1978).
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