# Petition — Chrysler Corp. v. Brown > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385005_0855%3A01 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1979 - **Citation:** 441 U.S. 281 ## Text oupreme Udwt, 0.5, FILED | =-pEC 27 1977 ™ \ onsen RODAK, JR., CLERK IN THE 4 Supreme Court of the United States OctoBerR TERM, 1977 noy'Y- 922 CHRYSLER CoRPORATION, Petitioner, V. HaroLp Brown, Et AL., Respondents. —_— PETITION FOR WRIT OF CERTIORARI TO THE UNTIED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT —_— Burr A. BRavERMAN DANIEL STARK CoLe, ZYtstra & Raywip 2011 Eye Street, N.W. Washington, D.C. 20006 A. Wrmu1aAM Ro.r P.O. Box 1919 Detroit, Michigan 48288 Attorneys for Petitioner Chrysler Corporation LK — Paess or Braon S. ADAMS PRINTING, INC., WASHINGTON, D. C. TABLE OF CONTENTS Page Cpemess BERGW cccccccccvcccccccesecccecovcceeees 1 SUMMIT cccccccccccccccescccccvcscccccoecceses 1 QUESTIONS PRBGBUTED 2. cccccccccccccccccccccccccons 2 STATUTES AND REGULATIONS ........0seeeeeecceeeeees 2 STATEMENT OF THE CaBB ......... cece ccceeeeceeeees 3 Reasons FoR GRANTING THE PETITION ..........+.+0++ 9 COMGIAMION co cccccccccccccccccccccccccsecccecocece 28 APUUMBEE B cccccccccccccccccccccccccccccocccccces la APUGMBEE Bo cccccccccccccccccccccccccccceccoovees 43a ASTUMBEE © cccccccccccccccvcccssccccccccocccooses 58a APUBMBER D occccccccccccccccccccccccccccccseccece 60a ii CITATIONS Cass: Page Avco Corp. v. Aero Lodge 735, 390 U.S. 557 (1968) ... 13 Bristol-Myers Co, v. FTC, 424 F.2d 935 Ooeir) cert. denied, 400 U.S. 824 (1970) ............0... ; Charles River Park ‘‘A’’, Inc. v. HUD, 519 F.2d 935 I ei kc tc cud 14, 17, 18, 20, 21, 23 Cort v. Ash, 422 U.S. 66 (1975) ........ccccccccccce 23 Dickerson v. United States Steel Corp., 12 E.P.D. ‘ § 11095 (B.DPa 1676) er Tuk Anon 11 nvironmen rotection . Mi «iF etacaengeeatia an renctingane 11 General Dynamics Corp. v. Dunlop, 427 F.Supp. 578 9D (8th DU tideehatenlaliiebetdésnsitesedesencssesi 17, 21 Hughes Aircraft v. Schlesinger, 384 F.Supp. 292 (C.D. Cal. 1974), appeal pending, No. 75-1064 (9th Cir.) 13, 21 McCoy v. Weinberger, 386 F.Supp. 504 (W.D.Ky. Metin s sApRssrstbsnstecesosnsss sores aisecs ces os 14 i arks and Conservation Assn. v. Kleppe, 547 F.2d 673 (D.C.Cir. 1976) OE eee 18 National Parks and Conservation Association v. Mor- me hy 498 Sa: y- scopy tl aie leitd te beatae 22 cooper Grain Company v. Kissinger, 385 F.Supp. 769 (D.D.C. 1974) iin ceteseaes a ra Pe hog 14 pase nag > v. whee 5 whe 627 (5th Cir. 1976) .... 14 y v. Carnegie- on University, 12 FEP 101 (W.D.Pa. 1975) ........... ‘ OPS ae -_ : 11 Sears, Roebuck and Co. v. GSA, 553 F.2d 1378 (D.C. Cir. 1977), cert. den. —— U.S. —— (1977) ....Passim ye Roebuck = a v. ey ee U.S. 132 (1975) 11 eregger v. Department of the Interior, 424 F. : 847 (D.Idaho 1976) ... ’ oi kéatanehinnsess Supp, 21 The Prudential Insurance Company of America v. National Organization for Women, No. 76-1052, cert. de- nied, —— U.S, —, 53 L.Bd.2d 238 (1977). .11, 13, 20 Westinghouse Electric Corp. v. Schlesinger, 542 F.2d 1190 (4th Cir. 1976), cert. denied sub nom. Brown v. Westinghouse Electric Corp., —— U.S. ——, 53 I Ds vnc c o¢cceduesesecteveses Passim Citations Continued iii STaTUTES AND REGULATIONS: Page Administrative Procedure Act, 5 U.S.C. 701 et seq. 8, 20, 21, 23 BS WS, Fe cccccevccccccosesecevessseses 8, 21 6 U.B.C. 706 (B)(A) ..cccccccccccccccscces 8 Freedom of Information Act: Bt 2,5 5 U.S.C. 568(a)(4)(G) ...ccecccccccccccees 12 § U.S.C. S6B(b)(1) 2... ccccvvcccccccccveees 15 5 UB.C. GEB)(S) .cccvccccccccccccces 7, 20, 21 5 U.S.C. 562(b)(4) 2... cccccccccccevvess Passim 6 U.B.C. S52(D)(G) .. nc cvccccccccccccvcess 15 6 U.S.C. S6B(D)(6) on. cccccccccccccvcccces 15 SB WR, Be is ccccvteetctcunsucecsceves 2, 8, 17, 18, 20 GB U.S.C. 1964(1) ..ccccccccccccccccccccccvecs 2 GB UGC. 18Bila) ..ccccceccccccccccccscecceces 7 16 UB... 1908 .nccccccccccccccccccvcccccees Passim 99 C.F.B. 70.21(a) ....ccccccccccccccvcccescess 3 41 O.F.RB. Part GO-1 ....cccccccccccccccccscens 3 Serr TT re 3 GEDED .nccccccccvcccvessvecescevssecones 3 © GDDAD onc ccccvccccccccccccvccevccccccess 4 41 C.F.R. Part 60-2 .....cccccccscccccsevvcens 3 41 C.F.R. Part 60-40 .......c cece cceeeeeeees 2,5, 19 § G0-40.2(8) onc. cceecceeeeeeeceeeeeeereees 5 § 60-40.2(D)(1) ccc ceeccceeeeeeeeeeeeeeeee 5 © GO-40.3 ...cccccccccccccccecscccccvcccees 5 AT.) OF Se 5 § G0-40.4(d) oc ccc eceeeeeeeeceeeeeeeeenees 6 41 O.F.R. Part 60-60 ..... cc cee ccc ee ee eeeeeees 3 MISCELLANEOUS: Executive Order 11246, 30 Fed. Reg. 12319, as amended by Executive Order 11375, 32 Fed. Reg. 14303 (3 C.F.R. 169) 0... cece cece cece ee eeeeeeeeenees 3 H. Rep. No. 1497, 89th Cong., 2d Sess. 12 (1966) ...... 9 Lardner, Use, Abuse of Freedom of Information Act, Washington Post, July 27, 1976 .....+-.+++ee0es 16 iv Citations Continued Page Tintaeen tanita. Rule 19(b) of the Rules of the Supreme Court ....... 13 S.Rep. No. 813, 89th Cong., Ist Sess. 3 (1965) ....... 9 Be GE, EE, GD COU) 6 ccccccccccccccccccccees 18 IN THE Supreme Court of the United States OctToBER TERM, 1977 No. & CHRYSLER CORPORATION, Petitioner, Vv. HaroLtD Brown, ET AL., Respondents. PETITION FOR WRIT OF CERTIORARI TO THE UNTIED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT Chrysler Corporatio’. respectfully petitions this Court to issue a writ of certiorari to review the judg- ment of the United States Court of Appeals for the Third Circuit. OPINIONS BELOW The opinion of the court of appeals (App. A, infra, pp. la-42a) is not yet officially reported. The opinion of the district court (App. B, infra, pp. 43a-57a) is reported at 412 F.Supp. 171. 2 JURISDICTION The judgment of the court of appeals (App. C, in- fra, pp. 58a-59a) was entered on September 26, 1977. The jurisdiction of this Court is invoked under 28 U.S.C. § 1254(1). QUESTIONS PRESENTED 1. Whether Exemption 4 of the Freedom of Infor- mation Act, 5 U.S.C. § 552(b) (4), mandates that pri- vate, confidential information which falls within that exemption not be publicly disclosed. 2. Whether agency regulations promulgated pursu- ant to 5 U.S.C. § 301 constitute “authorization by law” within the meaning of 18 U.S.C. § 1905 for dis- closure of private, confidential business information. 3. Whether a person who has supplied to a govern- ment agency private, confidential information which assertedly is exempt from disclosure under Exemp- tion 4 of the Freedom of Information Act, 5 U.S.C. § 552(b) (4), or whose disclosure assertedly would vio- late 18 U.S.©. § 1905, is entitled to a trial de novo in a suit to prevent disclosure of that information by the Government. STATUTES AND REGULATIONS The relevant provisions of the Freedom of Infor- mation Act, 5 U.S.C. § 552, as amended, 18 U.S.C. § 1905, 5 U.S.C. § 301, and the pertinent regulations of the Office of Federal Contract Compliance Pro- grams, 41 C.F.R. Part 60-40, are set forth as App. D, infra, pp. 62a-65a. 3 STATEMENT OF THE CASE’ 1. As a government contractor, Chrysler Corpora- tion (“Petitioner’’) is required to comply with Execu- tive Orders 11246 and 11375? (‘‘Executive Orders”) and with various implementing regulations * which have been promulgated thereunder by the Department of Labor’s Office of Federal Contract Compliance Programs (‘“‘OFCCP”). These orders and regulations require Petitioner and other government contractors to, inter alia, prepare and submit to Respondents * a variety of reports and information, including writ- ten affirmative action programs (“AAP’s”) and equal employment opportunity reports (‘‘EEO-1’s’’), for its entire corporate domestic operations and sepa- rately for each of its individual domestic facilities. ‘ The statement of facts, which are not in dispute, is based on the opinion of the court below and the joint appendix in the court of appeals. 230 Fed. Reg. 12319, 32 Fed. Reg. 14303 (1967), 3 C.F.R. 169- 177 (1974). $41 C.F.R. Parts 60-1, 60-2 and 60-60. * Respondents are Harold Brown, Secretary of Defense; Lt. Gen. W. W. Vaughan, Commander of the Defense Logistics Agency (formerly, Defense Supply Agency) of the Department of Defense (‘‘DSA’’); F. Ray Marshall, Secretary of Labor; and Weldon J. Rougeau, Director of OFCCP. The Secretary of Labor is responsi- ble for administering the equal employment opportunity program established by the Executive Orders. Executive Order 11246, Sec. 201. The Secretary discharges his responsibilities through OFCCP and has designated the Defense Supply Agency as one of the sev- eral ‘‘compliance agencies’’ responsible for monitoring government contractors’ compliance with the Executive Orders, investigating charges made against contractors, and imposing sanctions upon contractors who do not comply with the Executive Orders. See Executive Order 11246, Subpart C; 41 C.F.R. §§ 60-1.2, 60-1.6; OFCCP Compliance Manual, § 2-202. + Under the Executive Orders and OFCCP’s regula- tions, Petitioner is required to include in each of the nearly one hundred AAP’s which it prepares annu- ally highly detailed information of both a statistical and narrative nature concerning its total, and minor- ity and female, employment for each department and subdepartment which exists at the particular facility and, within each such department, for each job classi- fication. Such information includes, inter alia, data on Staffing patterns, pay-scales, actual and expected shifts in employment and related employment mat- ters; goals, timetables and future projections for the employment of minorities and females; and critical self-analyses where Petitioner believes it has not met its obligations under the Orders and regulations. 41 C.F.R. §§ 60-1.40, 2.11 and 2.12. The AAP’s specific- ally at issue below were, respectively, 175 and 257 pages in length. The EEO-1 reports which Petitioner is also re- quired to furnish to Respondents are prepared on the Government’s Standard Form 100. The EEO-1’s con- tain statistical information with respect to the total number, and the number of minority and female, per- sons employed by Petitioner in nine specified job categories. To enforce the Executive Orders, Respondents con- duct “‘compliance reviews” and “complaint investiga- tions” to determine whether a contractor is in com- pliance with, or in violation of, the Orders and OFCCP’s regulations. At the conclusion of these re- views and investigations, Respondents prepare either a ‘compliance review report”’ (“‘CRR”’) or ‘complaint ) investigation report” (‘‘CIR’’) which describes and discusses the documents and information submitted to Respondents by the contractor, analyzes the con- tractor in light of the Orders and regulations, and recommends corrective measures which the contractor should be required to implement. The reports may 1n- corporate, in whole or in part, AAP’s, EEO-1’s or supporting documents. The Secretary of Labor has promulgated regula- tions providing for public disclosure of information from records of OFCCP and its compliance agencies. 41 C.F.R. Part 60-40. (App. D. infra, pp. 62a-65a). The regulations provide generally that “[u]pon the request of any person * * * records shall be made available for inspection and copying, notwithstanding the applicability of the exemption from mandatory disclosure [under the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552], if it is determined that the requested inspection and copying furthers the public interest and does not impede any of the func- tions of the OFCC[P] or the Compliance Agencies ex- cept in the case of records disclosure of which is pro- hibited by law.’’ 41 C.F.R. § 60-40.2(a). In additien, the regulations specifically provide that, upon request, ‘©* * * TEEO-1 reports] which [are] submitted by contractors to the OFCC[P] [or] a compliance agency * * * shall be disclosed’’ (41 C.F.R. § 60-40.4) and that affirmative action programs, subject to- lim- ited exceptions (41 C.F.R. § 60-40.3), ‘‘must be dis- closed.’’ 41 C.F.R. § 60-40.2(b) (1). 2. This action arose when DSA notified Petitioner that DSA had received requests under the FOIA * for *The FOIA requires agencies to disclose upon request any docu- 6 disclosure of affirmative action programs, EEO-1 re- ports, CRR’s and CIR’s for two of Petitioner’s fa- cilities. To the extent posible within the brief ten-day period allowed by Respondents, Petitioner objected to the proposed disclosure of the documents asserting, inter alia, that the AAP’s and EEO-1’s were exempt from disclosure under exemptions to the Freedom of Information Act and under OFCCP’s rules, and that disclosure would violate 18 U.S.C. § 1905.° Thereafter, DSA notified Petitioner that Respond- ents had determined that the documents at issue were subject to disclosure virtually in their entirety; and that Petitioner would not be furnished with a copy of the CIR or CRR prior to disciosure. In addition, Re- spondents stated that, because they were required by the FOIA to make a substantive decision on release of these documents within ten working days of receipt of the request, they would not await the result of any administrative appeal by Petitioner of Respondents’ disclosure decision under the provisions of 41 C.F.R. § 60-60.4(d). Faced with the threatened release of the documents, Petitioner commenced this action seeking to enjoin Respondents from publicly disclosing the documents and further seeking a declaratory judgment that the public disclosure by Respondents of any other such ment in their files unless the document falls within one of nine specifically exempted categories. See App. D, infra, p. 60a. * Petitioner also requested that Respondents furnish Petitioner with copies of the CRR and CIR which Respondents proposed to release—which Petitioner had never seen—so that Petitioner might be able to determine what parts of the reports were confidential and to intelligently present its claim of confidentiality. 7 documents for any of Petitioner’s facilities was con- trary to, inter alia, Exemptions 3 and 4 of the Free- dom of Information Act, 5 U.S.C. §552(b)(3) and (4), and 18 U.S.C. § 1905. The district court con- ducted a trial de novo during which both Petitioner and Respondents presented the testimony of ex- pert witnesses and others relating to the nature of information contained in the contested documents, the uses to which such information could be put by com- petitors of Petitioner, and the adverse consequences which would be caused by disclosure. On April 20, 1976, the district court issued its opin- ion. Appendix B, infra, pp. 43a-57a. The district court held that it had subject matter jurisdiction un- der 28 U.S.C. § 1331(a); that portions of the docu- ments consisted of confidential commercial informa- tion whose disclosure would cause substantial compe- titive injury to Petitioner;’ that such information is exempt from mandatory disclosure under Exemption 4 of the FOIA, 5 U.S.C. § 552(b) (4); and that dis- closure of that information would violate 18 U.S.C. § 1905 and 29 C.F.R. § 70.21(a). On this basis, the district court concluded that disclosure of those por- tions of the AAP’s was contrary to law and should be ’ The district court found that ‘‘the testimony clearly shows that the manning tables are confidential * * * [and that] the release of the manning tables could cause Plaintiff substantial competitive harm in several ways. First, the possession of such a document could aid another corporation in its practice of employee raiding, @ practice not unknown in the automobile industry. * * * Second, the possession of a manning table would permit a competitor to determine the exact use of Plaintiff’s labor force. and thus the technology being applied by Plaintiff * * * [which information] would be useful in comparative analysis and would alert competitors to areas worth their managerial time. * * * Third, the possession of manning tables . . . would allow Plaintiff’s competitors to reduce their risk-taking.’’ App. B, infra, p. 51a. 8 enjoined pursuant to 5 U.S.C. § 706(2)(A). The court concluded, however, that other portions of the docu- ments were not immune from public disclosure, and rejected Petitioner’s request for declaratory relief. A supplemental memorandum and final order were filed on June 17, 1976. App. E, infra, pp. 66a-67a. On cross-appeals by the parties the court of appeals reversed. App. A, in/ra, pp. la-42a. The court held, inter alia, that a cause of action to enjoin disclosure of documents which assertedly will violate FOIA Ex- emption 4 and 18 U.S.C. § 1905 exists only under § 706 of the Administrative Procedure Act (“APA’’), 5 U.S.C. § 706, and that none can be implied under Exemption 4 or § 1905. The court also held that gov- ernment agencies have discretion to disclose confiden- tial, private documents notwithstanding the fact that the documents fall within an FOIA exemption, and that disclosure of information pursuant to agency regula- tions promulgated under 5 U.S.C. § 301 was “author- ized by law’’ within the meaning of 18 U.S.C. § 1905. Finally, the court held that an action to enjoin dis- closure of documents was not to be conducted on a de novo basis, as the district court had, but rather that review should be limited to only a determination, on the basis of the agency record, of whether the agency’s decision to disclose was arbitrary, capricious or an abuse of discretion. Finding that the agency rec- ord was inadequate, the court remanded the case with instructions that further proceedings be conducted be- fore the agency. REASONS FOR GRANTING THE PETITION Businesses such as Petitioner are asked or compelled to submit vast amounts of confidential, proprietary in- 9 formation to federal government agencies on a continu- ing basis. In the hands of the Government, this infor- mation enables federal agencies to effectively monitor the economy and to determine industry’s compliance with diverse regulatory programs. Indiscriminately released, the same information can reveal intimate as- pects of a company’s operations and can result in se- vere competitive or other injury to the business. Con- sequently, many, if not most, businesses take careful precautions designed to guard against the release of such information and, apart from submission to the Government for limited regulatory purposes, generally do not publicly disclose much of the information which they furnish to federal agencies. Traditionally, the confidentiality of such private bus- iness information has been respected by the Govern- ment. However, under recent interpretations of the Freedom of Information Act, the tables of business privacy have turned to the point where, today, busi- nesses which submit confidential information to gov- ernment agencies have no assurance that the confiden- tiality of that information will be respected. This: re- sult neither was intended nor is appropriate under the Act. Although the FOIA was intended to open the pro- cesses of government to public scrutiny,’ Congress sought to balance the Act’s disclosure philosophy with the ‘‘equally important rights of privacy with respect to certain information in government files.’’* While *S.Rep.No, 813, 89th Cong., Ist Sess. 3 (1965) (‘‘S.Rep.No. 813°"); H.Rep.No. 1497, 89th Cong., 2d Sess., 12 (1966). See Bristol-Myers Co. v. FTC, 424 F.2d 935, 938 (D.C.Cir.), cert. denied, 400 U.S, 824 (1970). * S.Rep.No, 813, at 3. CSET PIT (eae 10 each of the exemptions to the Act reflects this concern over rights of privacy to a varying degree, it was of particular significance to Congress in fashioning Ex- emption 4, Similarly, in enacting Exemption 3, Con- gress was specifically concerned with preserving the protection which previously had been afforded to con- fidential information through preexisting nondisclo- sure statutes.” Unfortunately, since 1965, courts have experienced increasing difficulty in accommodating these competing interests and aims of the Act. The instant case is representative of a rapidly grow- ing number of ‘‘reverse FOIA’’ actions which have been brought by private parties to enjoin federal gov- ernment agencies from disclosing, pursuant to the Free- dom of Information Act, confidential information which those parties have furnished to the Government. As the court below recognized, “(t]he case presents several important issues about agency management of [confidential] .. . information, about agency discretion to disclose information . .. and about the availability of rem- edies for the prevention of disclosure.’’ App. A, infra, p. 21a. These issues are of broad public significance since they affect the disclosability not only of employment infor- mation provided to the Government by tens of thou- sands of government contractors such as Petitioner, but also of an endless array of other commercial and financial materials of a confidential nature which busi- nesses and individuals are asked or compelled to sub- mit to the many hundreds of federal government agen- cies which are subject to the FOIA. Those materials, * FAA Administrator v. Robertson, 422 U.S, 255, 263-5 (1975). 11 although long maintained in well deserved confidence by the Government, now are, under the construction of the FOIA urged by the Respondents and endorsed by the court below, threatened to be disclosed to anyone from the well intentioned member of the public to the unscrupulous competitor. Such disclosure portends se- rious adverse consequences not only to the persons who have furnished the information to the Government, but also to the Government itself whose ability to acquire information on a voluntary basis from the private sec- tor for implementation of regulatory programs will be impaired if the confidentiality with which the infor- mation was initially submitted is not respected.” While this Court has previously reviewed FOIA cases involving conflicts between administrative agen- cies and parties seeking disclosure of documents,” the Court has as of yet declined to address the equally im- portant clash between those interests and the right of businesses and other persons to continued confiden- tiality of information which they submit to federal agencies. Although questions similar to those presented by this case were brought before this Court on at least three occasions during the last term, ertiorari was de- nied in each instance.” 1 See, Dickerson v. United States Steel Corp., 12 E.P.D. § 11095 (E.D.Pa. 1976); Sanday v. Carnegie-Mellon University, 12 FEP Cases 101 (W.D.Pa. 1975). 8 See, e.g., Environmental Protection Agency v. Mink, 410 U.S. 73 (1973); FAA Administrator v. Robertson, supra; Sears, Roe- buck and Co. v. NLRB, 421 U.S. 132 (1975). ** Brown v. Westinghouse Electric Corp., No. 76-1192, cert. de- nied, —— U.S. ——, 53 L.Ed.2d 239 (1977) ; The Prudential Insur- ance Company of America v. National Organization for Women, No, 76-1052, cert. denied, ——- U.S, ——, 53 L.Ed.2d 238 (1977) ; 12 The time for review of these issues by this Court is now at hand. The opinion of the court below is dia- metrically contrary to the decisions of either the Fourth or District of Columbia Circuit on each of the funda- mental reverse FOIA issues presented by this peti- tion.* Due to the uncertainty caused by these conflict- ing circuit court decisions,” persons who must decide whether to furnish confidential information to federal agencies have no means of knowing whether the confi- dentiality of such information will be preserved, or whether the information will be disclosed under the FOTIA; agencies and their employees have no certain standards by which to make disclosure decisions; “ Sears, Roebuck and Co. v. GSA, No, 76-1642, cert. denied, —— U.S. ——, 54 L.Ed.2d 84 (1977). ** Thus, in contrast to those cases in which certiorari was denied (see n. 13, supra), there is no longer a need for further development of the law at the circuit court level. ** Disagreement exists not only among, but even within, the cir- cuits on some of the issues presented by this petition. Compare, e.g., Crown Central Petroleum Corp. v. Kleppe, 14 FEP Cases 49 (D.Md. 1976), with Westinghouse Electric Corp, v. Schlesinger, supra. ** Agency employees who must make disclosure decisions are faced, on the one hand, with the criminal sanctions of 18 U.S.C. § 1905 should they erroneously decide to disclose information and, on the other hand, with the contempt sanctions of 5 U.S.C. § 552(a) (4)(G) should they mistakenly refuse to disclose information in response to an FOIA request. Moreover, agency officials have been directed by some courts to perform what other courts hold to be criminal acts. While decision makers will always face some uncer- tainty as to the correctness of their decisions, the conflicting circuit court decisions, compounded by the liberal venue rules which govern the choice of the circuit within which such decisions will be re- viewed, make for a chaotic environment in which reasoned decision making by government officials on disputed disclosure requests may be well nigh impossible. 13 and federal courts are left aimlessly adrift in deciding not only the substantive issues of reverse FOIA cases but, also, even in determining fundamental matters such as the proper scope of judicial inquiry in an action to enjoin disclosure. Absent guidance by this Court, whicn has been expressly requested by some courts” and which is obviously needed by others,” courts and federal agencies alike will be forced to continue to re- solve sensitive disclosure questions on the basis of the diametrically contrary judicial precedent which now exists, For these reasons, and those presented below, Peti- tioner submits that certiorari should be granted.” 1. Respondents asserted below that they had dis- eretion to disclose Petitioner’s documents notwith- standing the district court’s finding that the documents fell within Exemption 4 of the FOIA™ because they *T See, e.g., Sears, Roebuck and Co. v, GSA, 553 F.2d 1378, 1385 (D.C.Cir. 1977), where the D.C, Circuit expressly noted the absence of, and need for, ‘‘decisive new guidance by the Supreme Court’’ on some of the very same questions which are presented by this petition. * The uncertainty surrounding these issues is reflected by the action of the U.S. Court of Appeals for the Ninth Circuit in Hughes Aircraft v. Schlesinger, No. 75-1064, a case involving many of the same issues that are presented here. There, on April 14, 1977, one year after oral argument, the Ninth Circuit withdrew the case from submission pending action by this Court on the petitions filed in Westinghouse and Prudential. Despite this Court’s denial of cer- tiorari in those cases in May 1977, the Hughes case remains un- decided. * See Rule 19(b) of the Rules of the Supreme Court; and Avco Corp. v. Aero Lodge 735, 390 U.S. 557, 559 (1968). *° Exemption 4 provides that the disclosure mandate of the FOIA ‘‘does not apply to matters that are .. . commercial or financial 14 were confidential and would cause substantial competi- tive injury to Petitioner if disclosed.” The court below adopted Respondents’ position in deciding this case. Although it recognized that, in en- acting the FOIA, Congress was concerned that “dis- closure of certain information might injure interests in privacy and confidentiality which may be as im- portant as the public’s right to general access to agency information,’’ the court nonetheless rejected the notion that ‘‘Congress in the FOIA intended... that the exemptions make nondisclosure mandatory . .” and held that government agencies have broad discretion to disclose exempt information. App. A, infra, pp. 23a-25a. Two other circuit courts have reached a similar conclusion.” As the court of appeals observed (App. A, infra, p. 23a), its holding is contrary to that of the Fourth Circuit in Westinghouse Electric Corp. v. Schlesinger, 542 F.2d 1190 (4th Cir. 1976), cert. denied sub nom. Brown v. Westinghouse Electric Corp., supra.” There, the Fourth Circuit observed that “(t)he protection from disclosure given such in- formation by Exemption 4 was stated in the legis- lative hearings to have been granted to such in- information obtained from a person and privileged or confidential ..»’’ 5 U.S.C. § 552(b) (4) ; see App. D. infra, p. 61a. ** See n. 7, supra. This finding was not challenged by Respondents on appeal. * Charles River Park ‘‘A’’, Inc. v. HUD, 519 F.2d 935 (D.C.Cir. 1975) ; Pennzoil Co. v. FPC, 534 F.2d 627 (5th Cir. 1976). ** See also McCoy v. Weinberger, 386 F.Supp. 564 (W.D.Ky. 1974) ; Neal-Cooper Grain Company v. Kissinger, 385 F.Supp. 769 (D.D.C, 1974), +5 15 formation ‘not only as a matter of fairness, but as a matter of right...’ * * * [T]he Act was in- tended, to use the language of the Senate report, to set ‘up workable standards for what records should and should not be open to public inspec- tion.’ And one of the sections of the Act, which declared what private information acquired by the government ‘should not be open to public dis- closure’ was Exemption 4. * * * This provision in the Act was more than a simple exemption; it represented an express affirmation of a legislative policy favoring confidentiality of private infor- mation furnished government agencies, the dis- closure of which might be harmful to private interests. It was manifestly intended to protect that private interest.’’ 542 F.2d at 1211 (footnotes omitted) (emphasis in original). On this basis, the court concluded that Exemption 4 confers upon a supplier of private, confidential com- mercial information the right to prevent the disclo- sure of information which falls within Exemption 4. There is a fundamental conflict between the decision of the court below (and those of the Fifth and D.C. Circuits), on the one hand, and that of the Fourth Circuit, on the other, which this Court should resolve. That conflict can be resolved by recognizing the in- herent difference between those FOIA exemptions which obviously were intended to protect agenctes from mandatory disclosure of agency information (e.g., Exemptions 1 and 5), and those exemptions which clearly were fashioned to protect private, non- governmental interests (e.g., Exemptions 4 and 6). While the Government should and does have the power to waive the protection from mandatory dis- closure of agency information afforded by the first 16 category of exemptions, the agency does not and should not have the power to waive the protection which Congress intended to bestow on private parties through the second. For, although Congress intended that disclosure of agency documents which fall within the FOIA exemptions would ordinarily be within the agency’s discretion, it intended to accord greater pro- tection to private confidential information which pri- vate individuals and businesses furnish to the Govern- ment, the disciosure of which would be harmful to private interests.” Petitioner submits that only by recognizing the dis- tinction drawn by Congress between private and agency records can the FOIA’s basic disclosure policy and the equally important congressional policy under- lying the exemptions both be given their intended ef- fect. The Fourth Circuit, in contrast to the decisions of the court below ™ and the D.C. and Fifth Circuits, * The FOIA ‘‘was not enacted for the purpose of enabling the public to obtain information about individuals and corporations, about what those individuals or corporations are doing, or about what their activities and policies are * ® *;”’ rather, ‘‘[t]he pur- pose of the .. . Act was to protect the people’s right to obtain information about their government, to know what their government is doing, and to obtain information about government activities and policies.’’ Westinghouse Electric Corp. v. Schlesinger, 542 F.2d at 1210 n. 64 (emphasis added). Curiously, however, most of the documents whose threatened disclosure has given rise to reverse FOIA actions have concerned the actions, plans and policies of private parties, not those of the government, and have been sought either by corporations or their agents seeking information about their competiivis or by parties in Ltigation who seek to bypass the Federal Rules of Civil Procedure. Sec Lardner, Use, Abuse of Free- dom of Information Act, Washington Post, July 27, 1976, at A 4. * In fact, the court helow conceded ‘‘that disclosure of submitter information is qualitatively different ‘rom disclosure of data directly relating to government operations, and that the interest in privacy 17 correctly drew this distinction in holding that, regard- less of the Government’s discretion to disclose exempt agency documents, Exemption 4 mandates that pr- vate documents which fall within the exemption not be disclosed. 2. Section 1905 of Title 18 of the U.S. Code is a criminal statute which makes it unlawful for any gov- ernment official or employee, “to any extent not au- thorized by law’’, to disclose information which con- cerns or relates ‘‘to the trade secrets, processes, opera- tions, style of work, or apparatus, or to the identity, confidential statistical data, amount or source of any income, profits, losses, or expenditures of any .. . cor- poration .. .’’ * App. D, infra, p. 61a. The court below held that 5 U.S.C. § 301” ‘is a separate source of agency authority for the promulgation of disclosure regulations, and dis- closures pursuant to such regulations are author- appears stronger with respect to the former than the latter.’’ App. A, infra, p. 22a. Yet, the court paid little heed to this qualitative difference in ruling that Respondents may disclose private informa- tion which falls within Exemption 4. ** Numerous federal courts have held that an agency may be enjoined from disclosing information in violation of 18 U.S.C. § 1905. See, e.g., Westinghouse Electric Corp. v. Schiesinger, supra; General Dynamics Corp. v. Dunlop, 427 F.Supp. 578 (E.D.Mo. 1976), appeal pending, No. 77-1192 (8th Cir.) ; Charles River Park ““A’’ Ine. v. HUD, supra. ** See App. D, infra, pp. 61a-62a. 5 U.S.C. § 301 provides in per- tinent part: ‘‘The head of an executive department or military department may prescribe regulations for . . . the custody, use, and preser- vation of its records, papers, and property. This section does not authorize withholding information from the publie or limiting the availability of records to the public.’’ 18 ized by law and immune from the prohibitions of § 1905. Since the OFCC[P] disclosure regulations are valid under § 301, all disclosures pursuant to those regulations are authorized by law and there- fore not subject to § 1905.” App. A, infra, 29a. The holding of the court below is both incorrect and, as that court acknowledged (App. A, infra, p. 29a), in conflict with the decision of the D.C. Circuit in Charles River Park “A’’, Inc. v. H.U.D., supra.” There, the D.C. Circuit examined the very same legis- lative history of the 1958 amendment to § 301” upon which the court below relied, yet concluded, contrary to the Third Circuit, that “Section 301 does not au- thorize regulations limiting the scope of section 1905.” 519 F.2d at 942-3. The divergent interpretations by these circuit courts of the same statute and underlying legislative history warrants this Court’s review, particularly in light of the unsettling consequences which judicial un- certainty on this question must have within the Gov- ernment. Section 1905 is a criminal provision which imposes penalties upon government employees who disclose certain types of documents “to any extent not authorized by law.” Many government officials must routinely decide whether or not to disclose documents pursuant to agency disclosure regulations which have been promulgated pursuant to 5 U.S.C. § 301. Yet, as ** See also National Parks and Conservation Assn. v. Kleppe, 547 F.2d 673 (D.C.Cir. 1976); and Sears, Roebuck and Co. v. GSA, supra. *° The sponsor of the amendment expressly stated that it did ‘‘not affect the confidential status of information given to the government and carefully detailed in Title 18, United States Code, Section 1905.’’ 104 Cong. Ree. 6550 (1958). 19 a result of the conflict among the circuits created by the decision of the court below, these government of- ficials are now left without reliable guidance as to whether those regulations provide the authorization for disclosure necessary under 18 U.S.C. § 1905.” Review of the decision below is also warranted in light of the fact that, under the position taken by the Third Circuit, agency officials such as Respondents who are potential defendants in a criminal action brought under § 1905 for the unlawful disclosure of documents are free to define or redefine the scope of illegal conduct under that statute merely by amending or promulgat- ing agency regulations which authorize disclosure.” Thereby, these potential defendants can relieve them- selves of criminal liability for acts which, absent the slender thread of their own agency regulations, would violate § 1905." Such a result not only violates § 1905 but also contravenes public policy by allowing govern- ment officials who violate 18 U.S.C. § 1905 to exculpate themselves merely by promulgating broad agency dis- closure regulations in justification of their conduct.” *° See n. 16, supra. ** Indeed, in the instant case the disclosure regulations (41 C.F.R. Part 60-40) which were found by the court below to render § 1905 inoperative were promulgated by Respondents without prior notice or opportunity for public comment. *? This possibility was foreseen by the Fourth Circuit in Westing- house Electric Corp. v. Schlesinger: ‘‘It would be an incredible rule that a legislative prohibition such as § 1905, fixing limits on execu- tive action ..., is to be construed and applied by the executive .. . This would be tantamount to committing the execution of such law to ‘the self-restraint of the executive branch’ itself and making the executive’s ipse dixit final.’’ 542 F.2d at 1215 (citations omit- ted). ** Should this Court decide that agency disclosure regulations 8 SES SE NON 20 3. Finally, this Court should declare whether in an action to enjoin disclosure of documents which assert- edly will contravene FOIA Exemption 4 and 18 U.S.C. § 1905, the plaintiff is entitled to a trial de novo or, as the court below held, to only a more limited form of judicial review under the Administrative Procedure Act. The court below, finding that a cause of action could not be implied under 18 U.S.C. § 1905 or Exemp- tion 4, held that a submitter’s cause of action in a re- promulgated under 5 U.S.C. § 301 do not constitute ‘‘authorization by law’’ within the meaning of 18 U.S.C. § 1905, Petitioner submits that the Court should also consider the related question of whether 18 U.S.C. § 1905 is a specific statutory exemption from disclosure within the meaning of Exemption 3 of the FOTIA, 5 U.S.C. § 552(b) (3), and therefore whether documents whose disclosure would vio- late § 1905 are also exempt from mandatory disclosure under the FOIA, At present, the circuit courts are divided on this question. Compare Westinghouse Electric Corp. v. Schlesinger, supra (hold- ing that § 1905 is an Exemption 3 statute) with Charles River Park ‘‘A’’, Ine. v. HUD, supra (holding that § 1905 is not an Exemption 3 statute). Indeed, the D.C. Circuit, in one of its most recent decisions on the issue, referred to this as the **threshold question’’ in reverse FOIA cases involving confidential, commercial information and expressly asked this Court for guidance on the issue. Sears, Roebuck and Co. v. GSA, 553 F.2d at 1385. This question has been presented to the Court at least three times within the past year. See Brief of Respondent United States Steel Corporation in Support of the Petition, pp. 4-8, in Brown v. West- inghouse Electric Corp., supra; Petition for Writ of Certiorari, at pp. 20-27, in The Prudential Insurance Company v. National Or- ganization for Women, supra; Petition for Writ of Certiorari, pp. -9, in Sears, Roebuck and Co. v. GSA, supra. However, none of those cases presented the preliminary question—whether agency regulations constitute ‘‘authorization by law’’—in the context of a split among the circuits, thus possibly explaining this Court’s reluctance to decide the Exemption 3 issue. In contrast, as a result of the decision of the court below, both issues are now the subject of sharp disagreement among the circuits, making this case an ap- propriate vehicle for resolution of this troublesome matter. 21 verse FOIA case arose only under the APA.” Reciting that ‘‘[jJudicial review under the APA ordinarily is limited to a ‘review of the whole (agency) record or parts of it cited by a party’ [5 U.S.C. § 706 (1970)]”’ (App. A, infra, pp. 36a-37a), the court held that, ab- sent inter alia a finding that the agency’s factfinding procedures are inadequate, the scope of judicial review in reverse FOIA actions was to be limited to a deter- mination of whether the disclosure decision was arbi- trary, capricious or an abuse of discretion. App. A, infra, pp. 36a-39a; see 5 U.S.C. § 706. The holding of the court below is contrary to the holdings of numerous other federal circuit and district courts * which have held that a plaintiff in a reverse FOIA action is entitled to de novo review of its claims under 18 U.S.C. § 1905 and FOIA Exemption 4. Thus, in Charles River Park, the D.C. Circuit observed: ‘fA plaintiff in a suit such as this is obviously en- titled to no relief if the government could be forced to disclose the information it wishes to reveal in a suit under the FOTA. Thus, the district court should hold a hearing to determine whether the informa- tion involved here would have been exempt just as it would if a suit had been brought under the FOIA to compel disclosure. See 5 U.S.C. § 552(b) ** The court held that Congress did not intend ‘‘that the [FOIA] exemptions . . . provide the predicate for an implied cause of action’’ and ‘‘reject[ed] tha proposition that § 1905 would serve as a predicate for a private tivil cause of action.’’ App. A, infra, pp. 23a, 30a. ** See, e.g., Charles River Park ‘‘A’’, Inc. v. HUD, supra; Sears, Roebuck and Co. v. GSA, supra; Westinghouse Electric Corp. v. Schlesinger, supra; General Dynamics Corp. v. Dunlop, supra; Sonderegger v. Department of the Interior, 424 F.Supp. 847 (D. Idaho 1976); Hughes Aircraft v. Schlesinger, 384 F.Supp. 292 (C.D.Cal. 1974), appeal pending, No. 75-1064 (9th Cir.). 22 (3) ; National Parks and Conservation Association v. Morton [498 F.2d 765 (D.C.Cir. 1975)]. In holding this hearing the district court is not re- . viewing agency action; it is making a threshold determination whether the plaintiff has any cause of way at all.”’ 519 F.2d at 940 n.4. (Emphasis a , Similarly, in Westinghouse Electric Corp. v. Schles- inger, the Fourth Circuit expressed the same view: ‘**Should not the person who was threatened with harm through a disclosure, which Congress had indicated clearly is against the public policy as expressed in the FOIA itself be the proper one to assert that 7 to protection from disclosure as- sured him under Exemption four, in an equity ac- tion in which he can have a de novo trial? The en- vious competitor or the curious busybody demand- ing access to that private information has the right to such a de novo trial. The Act gives it to him. But is not the same right to be implied, when the supplier, with a right that Congress gave him ‘not only as a matter of fairness but as a matter of right,’ seeks what may be regarded as correlative relief ?’’ 542 F.2d at 1213. While some of the courts which have reached this conclusion have no doubt been influenced by, inter alta, their view that an implied cause of action exists under Exemption 4 and 18 U.S.C. § 1905 to enjoin disclosure of confidential information in contravention of those statutes,” the conclusion that the reverse FOIA plain- * See, e.g., Westinghouse Electric Corp. v. Schlesinger, where the Fourth Circuit held both that ‘‘[t]he FOIA itself . . . confers on a supplier of private information, an implied right to invoke the equity jurisdiction to enjoin the disclosure of information within Exemption 4’’ and that a cause of action may be implied to enjoin ‘*the threat of action by a public officer ‘. . . contrary to a specific [federal statutory] prohibition’ such as § 1905... .’’ 542 F.2d at 23 tiff is entitled to a de novo tria! pertains even if review is predicated solely upon the APA. Thus, even within the District of Columbia Circuit, where the submitter’s cause of action in reverse FOIA cases has been found to arise under the APA, the circuit court has directed the district courts to conduct a de novo judicial deter- mination of whether the information is subject to man- datory disclosure, or exempt from disclosure, under the FOIA. See Sears, Roebuck and Co. v. GSA, 553 F.2d at 1381; Charles River Park ‘‘A’’, Inc. v. HUD, 519 F.2d at 940 n. 4; Westinghouse Electric Corp. V. Schlesinger, 542 F.2d at 1207. This case presents an excellent opportunity for the Court to resolve the conflict on this important federal question. Because the issue is one which pervades all reverse FOIA actions and which has great practical significance " to persons who are aggrieved by improper 1209, 1210. The decisions of the Third and Fourth Circuits are clearly in conflict on this point. See n. 34, supra. Although the resolution of this question will not significantly affect the access of submitters to the courts (since all courts have recognized the existence of some kind of cause of action), the issue does have substantial bearing on the scope of proceedings to be conducted in the district courts, i.e., whether there is to be a de novo trial. Consequently, should the Court be of the view that a de novo trial would not be appropriate in an action which is predicated on the APA, Petitioner submits that the Court should then consider whether a cause of action can, as the Fourth Circuit correctly held, be implied under 18 U.S.C. § 1905 or Exemption 4 and, if so, whether a de novo trial would be appropriate in such an action. The exercise of certiorari jurisdiction on this question would be appropriate since the circuit courts have applied the decisions of this Court (e.9., Cort v. Ash, 422 U.S. 66 (1975) ) in a conflicting and irreconcilable manner. ** Numerous aspects of the agency disclosure process and the FOIA itself demonstrate why a de novo judicial determination of whether the disclosure of information would violate § 1905 or 24 government disclosure of private, confidential informa- tion, the Court should not let this opportunity pass by. CONCLUSION The petition for a writ of certiorari should be granted. Respectfully submitted, Burt A. BRAVERMAN DANIEL STARK CoLe, Zytstra & RaywIipD 2011 Eye Street, N.W. Washington, D.C. 20006 A. Witu14M Ror P.O. Box 1919 Detroit, Michigan 48288 Attorneys P sid Petitioner Chrysler Corporation Exemption 4 is essential to protect the interests of persons who furnish confidential information to the Government. First, neither the FOIA nor most agency regulations require that notice be pro- vided to persons whose documents are to be disclosed. Second, even where notice is provided gratuitously, disclosure decisions (which often involve complex economic and technical questions) are made within the ten day time limit imposed by the FOIA, a period which generally is far too brief to permit the submitter of the documents to object with specificity or the lay agency official to engage in a thorough examination of the documents, and which renders it likely if not certain that an adequate agency record will not be developed. Third, as demonstrated by this case, the FOIA does not rey» °@ an agency to make findings in support of its decision to dise’vse and, in fact, virtually no agencies do so, thereby making meaningful judicial review on the basis of the ‘‘agency record’’ impossible. Finally, as also reflected by this case, the essential right to an administrative appeal from an adverse initia] disclosure decision is often illusory because agencies, under compulsion of the FOIA time limits, must disclose the documents prior to completion of the appeal. Consequently, a person threatened with disclosure of confidential documents must be afforded the same de novo judicial determination of the disclosability of the information which the FOIA guarantees to persons seeking to compel disclosure. APPENDIX la APPENDIX A UNITED STATES COURT OF APPEALS For tHe Tarp Circuit Nos. 76-1970 and 76-2238 CHRYSLER CORPORATION v. James A. Scuiesincer, Secretary United States Depart- ment of Defense; Lt. Gen. Watiace Rosrnson, Direc- tor, Defense Supply Agency; Pump J. Davis, Di- rector, Office of Federal Contract Compliance, and Joun Duntop, Secretary United States Department of Labor Curyster Corporation, Appellant in No. 76-1970 James A. Scuiesincer, Secretary United States Depart- ment of Defense; Lr. Gen. Wattace Rostnson, Di- rector, Defense Supply Agency; Purr J. Davis, Di- rector, Office of Federal Contract Compliance; and Joun Dun top, Secretary United States Department of Labor, Appellants in No. 76-2238 (D.C. Civil Action No. 75-159) Appgat From tHe Unitep States Disrricr Court ror THE District or DELAWARE 2a Argued June 13, 1977 Before Van Dusen, Apams and Gissons, Circuit Judges Opinion of the Court (Filed September 26, 1977) [As amended by order dated October 18, 1977] Gispons, Circuit Judge Plaintiff, Chrysler Corporation (Chrysler), appeals and defendants, federal government officials,’ cross-appeal, from a final judgment of the district court in an action for injunctive and declaratory relief aimed at preventing pub- lie disclosure of certain documents furnished by Chrysler to federal governmental agencies. The action was origi- nally prompted by the decision of the defendants to honor a request by third parties* for public disclosure of the contested documents under the Freedom of Information Act (FOIA).’ The district court, after a trial de novo, permanently enjoined public disclosure of certain portions of the contested documents, but denied the full range of injunctive relief requested by Chrysler, and also denied its request for a declaratory judgment that any future dis- closure of similar documents would violate federal law. Chrysler appeals from the denial of the full declaratory and injunctive relief it requested. The federal government defendants in their cross-appeal originally contended (1) * James R. Schlesinger, Secretary, United States Department of Defense; Lt. Gen. Wallace Robinson, Director, Defense Supply Agency ; Philip J. Davis, Director, Office of Federal Contract Com- pliance ; and John Dunlop, Secretary, United States Department of Labor. * The parties who initially sought disclosure of Chrysler’s docu- ments neither intervened nor sought to participate in either the district court proceedings or the proceedings in this court. *5 U.S.C. § 552 (1970 & Supp. V 1975), as amended by 5 U.S.C. § 552(b)(3) (Supp. 1976), Pub. L. No. 80-554, 80 Stat. 383 (1966). 3a that Chrysler has no right to judicial review of any agency decision to disclose information requested by third parties under the FOIA; (2) that even if judicial review is avail- able the scope of review is limited to that defined in the Administrative Procedure Act,* and does not include a trial de novo; and (3) that even if a trial de novo was proper the district court erred in enjoining disclosure of portions of the contested documents. After the government’s initial brief was filed in this court the Solicitor General, in a peti- tion for a writ of certiorari to review the decision of the Fourth Circuit in Westinghouse Elec. Corp. v. Schlesinger, 242 F.2d 1190 (4th Cir. 1976), cert. denied sub nom. Brown v. Westinghouse Elec.Corp., US. ( 1977), took the posi- tion that the exceptions to judicial revie-r listed in 5 U.S.C. $701 were inapplicable to so-called reverse FOIA actions,* and that Pub. L. 94-574, 90 Stat. 2721, eliminated federal sovereign immunity as a bar to such review. We have been advised by the Justice Department that it is now the gov- ernment’s position that judicial review is available to parties objecting to disclosure of information under the FOIA, but that the Administrative Procedure Act controls our scope of review. Chrysler contended in the district court, and continues to urge here, that any disclosure of the conested documents was prohibited by several federal statutes to which specific reference will be made hereafter and by the due process clause of the fifth amendment. It maintained in the district court, and urges here, that a trial de novo was proper. Because we are in substantial agreement with the government’s present position we va- cate the judgment of the district court and remand for further proceedings. * See 5 U.S.C. § 701 et seq. * See n.43 infra. 4a I Tue Recuiatory FRaMEWwoRK Chrysler is a government contractor. As a condition of its doing business with the government it is required by an Executive Order,’ and regulations promulgated there- under by the Secretary of Labor,’ to employ and treat all employees without regard to race, color, religion, sex, or national origins, and to take affirmative action to elimi- nate discrimination in employment. In order to monitor compliance with these requirements, federal regulations re- quire that every government contractor or subcontractor with fifty or more employees and a contract valued at $50,000 or more prepare and file an annual Employer In- formation Report, known as an EEO-1 report.* The EEO-1 report contains data on the number of women and minority group members employed. Contractors must also prepare and make available for inspection by appropriate federal agencies an Affirmative Action Program (AAP), providing detailed information on their past and projected employ- ment of women and minority group members.’ The AAP must contain a ‘‘utilization analysis’’ which describes the occupational levels of minority personnel employed by the contractor and ‘‘goals and time tables’’ by which oppor- tunities for minority group members can be improved.” The failure of a contractor to comply with the Executive Order and regulations can result in the cancellation, ter- * Executive Order 11246, 30 Fed. Reg. 12319 (1965), as amended by Executive Order 11375, 32 Fed. Reg. 14304 (1967), 3 C.F.R. 169-177 (1974). * 41 C.F.R. 60-1.1 et seq. * Id. at 60-1.7(a). * Id. at 60-1.40, 60-2.1. © Td. at 60-2.10. 5a mination, or suspension of existing contracts and debar- ment from future awards." The Secretary of Labor has delegated administrative responsibility for the enforcement of the Executive Order to the Director of the Office of Federal Contract Compli- ance (OFCC).* The Director of OFCC has designated various federal agencies as ‘‘compliance agencies.’’ These compliance agencies have primary responsibility for as- suring adherence to the Executive Order by contractors within certain geographic areas or industrial classifica- tions.** In Chrysler’s case the Defense Supply Agency of the Department of Defense (DSA) is the designated com- pliance agency. As part of its monitoring duties DSA has conducted ‘‘compliance reviews’’ of Chrysler’s employment practices. These reviews consist of an examination of Chrysler’s EEO-1 and AAP documents, and on site inspec- tions of its facilities. Compliance reviews result in a compli- ance review report (CRR), setting forth information sup- plied by the contractor, an analysis of his performance, and recommendations for sanctions or corrective measures.” DSA is also responsible for investigation and resolution of complaints of violations of the Executive Order, and must file a ‘‘complaint investigation report’? (CIR) with OFCC within sixty days of the receipt of a complaint. Regulations promulgated by the Secretary of Labor contain rules providing for access by the public to infor- ™ Id. at 60-1.24. 8 Id. at 60-1.2. OFCC is the successor to the President’s Commit- tee on Equal Employment Opportunity. See 30 Fed. Reg. 12319, 13441. ** Id. at 60-1.3(d), 60-1.6. * Id. at 60-60.9. ** Id. at 60-1.24(b). ** Id. at 60-1.24(d). —— 6a mation in the records of OFCC or its various compliance agencies.” The regulations implement 5 U.S.C. § 552, the Free- dom of Information Act and supplement the policy and regulations of the Department of Labor, 29 C.F.R. Part 70. It is the policy of the OFCC to disclose in- formation to the public and to cooperate with other public agencies as well as private parties seeking to eliminate discrimination in employment.... 41 C.F.R. § 60-40.1. Consistent with the general policy of disclosure to aid in eliminating employment discrimina- tion, the regulations provide: [U]pon the request of any person for identifiable records obtained or generated pursuant to Executive Order 11246 (as amended) such records shall be made available for inspection and copying, notwithstanding the applicability of the exemption from mandatory disclosure set forth in 5 U.S.C. 552 subsection (b), if it is determined that the requested inspection or copying furthers the public interest and does not impede any of the functions of the OFCC or the Compliance Agencies except in the case of records disclosure of which is prohibited by law. 41 C.F.R. 60-40.2(a). Thus the regulations contain a blanket waiver of any authority the government might have to resist disclosure of any information which falls into one of the nine categories of information which are ex- empt from mandatory disclosure under the FOIA.” 17 Td. at 60-40.1 et seq. 8 In enacting the FOIA Congress recognized that certain types of information, such as trade secrets and other confidential matters, should be exempt from the Act’s mandatory public disclosure pro- visions. Consequently, the FOIA specifically exempts nine cate- 7a OFCC’s regulations also provide that ‘‘. . . all contract compliance documents within the custody of the OFCC and the Compliance Agencies shall be disclosed upon request unless specifically prohibited by law or as limited elsewhere gories of information from mandatory disclosure. This section does not apply to matters that are— (1) (A) specifically authorize under criteria by an Executive order to be kept secret in the interest of national defense or foreign po'icy and (B) are in fact properly classified pursuant to such Executive order; (2) related solely to the internal personnel rules and prac- tices of an agency; (3) specifically exempted from disclosure by statute (other than section 552b of this title), provided that such statute (A) requires that the matters be withheld from the public in such a manner as to leave no discretion on the issue, or (B) estab- lishes particular criteria for withholding or refers to particular types of matters to be withheld; (4) trade secrets and commercial or financial information obtained from a person and privileged or confidential ; (5) inter-agency or intra-agency memorandums or letters which would not be available by law to a party other than an agency in litigation with the agency ; (6) personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy ; (7) investigatory records compiled for law enforcement pur- poses, but only to the extent that the production of such records would (A) interfere with enforcement proceedings, (B) de- prive a person of a right to a fair trial or an impartial adjudi- eation, (C) constitute an unwarranted invasion of personal privacy, (D) disclose the identity of a confidential source and, in the ease of a record compiled by a criminal law enforce- ment authority in the course of a criminal investigation, or by an agency conducting a lawful national security intelligence investigation, confidential information furnished only by the confidential source, (E) disclose investigative techniques and procedures, or (F') endanger the life or physical safety of law enforcement personnel ; (8) contained in or related to examination, operating, or condition reports prepared by, on behalf of, or for the use of an agency responsible for the regulation or supervision of finan- oe <9 6y 8a herein.’’ 41 C.F.R. § 60-40.2(b). This blanket and manda- tory disclosure requirement with respect to compliance documents is qualified in 41 C.F.R. § 60-40.3(a) which lists six categories of documents or parts thereof which ‘‘are exempt from mandatory disclosure by the OFCC and the compliance agencies and should be withheld if it is de- termined that the requested information does not further the public interest and might impede the discharge of any of the functions of the OFCC or the Compliance Agen- cies.’’ ** Thus, even information within these six categories cial institutions; or (9) geological and geophysical information and data, includ- ing maps, concerning wells. 5 U.S.C. § 552(b) (Supp. 1976), amending 5 U.S.C. § 552(b) (1970 & Supp. V 1975). 41 C.F.R. § 60-40.3(a) provides: (a) The following documents or parts thereof are exempt from mandatory disclosure by the OFCC and the compliance agencies, and should be withheld if it is determined that the requested inspec- tion or copying does not further the public interest and might im- pede the discharge of any of the functions of the OFCC or the Compliance Agencies. (1) Those portions of affirmative action plans such as goals and timetables which would be confidential commercial] or financial in- formation because they indicate, and only to the extent that they indicate, that a contractor plans major shifts or changes in his personnel requirements and he has not made this information avail- able to the public. A determination by an agency to withhold this type of information should be made only after receiving verification and a satisfactory explanation from the contractor that the infor- mation should be withheld. (2) Those portions of affirmative action plans which constitute information on staffing patterns and pay scales but only to the extent that their release would injure the business or financial position of the contractor, would constitute a release of confidential financial information of an employee or would constitute an un- warranted invasion of the privacy of an employee. (3) The names of individual complainants. (4) The assignments to particular contractors of named compli- ance officers of such disclosure would subject the named compliance 9a may be disclosed if OFCC determines that such disclosure is in the public interest and does not impede the discharge of the functions of OFCC or its compliance agencies. Finally, 41 C.F.R. § 60-40.4 * provides that EEO-1 reports shall be disclosed, even though the exact same forms are furnished to the Equal Employment Opportunity Commis- sion (EEOC)* and EEOC is statutorily prohibited from disclosing EEO-1 reports in its possession.” officers to undue harassment or would affect the efficient enforcement of the Executive order. (5) Compliance investigation files including the standard com- pliance review report and related documents, during the course of the review to which they pertain or while enforcement action against the contractor is in progress or contemplated within a reasonable time. Therefore, these reports and related files shall not be dis- closed only to the extent that information contained therein consti- tutes trade secrets and confidential commercial or financial informa- tion, inter-agency or intra-agency memoranda or letters which would not be available by law to a private party in litigation with the agency, personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of per- sonal privacy, data which would be exempt from mandatory dis- closure pursuant to the ‘‘informants privilege’’ or such information the disclosure of which is prohibited by statute. (6) Copies of preemployment selection tests used by contractors. 2041 C.F.R. § 60-40.4 provides: The Standard Form 100 (EEO—1) which is submitted by contractors to the OFCC, a compliance agency or a Joint Re- porting Committee servicing both the OFCC and the EEOC shall be disclosed pending further instructions from the Direc- tor, OFCC. The statutory prohibition on disclosure set forth in Section 709(e) of the Civil Rights Act of 1964 is limited by the terms of that section to information obtained pursuant to the authority of title VII of that Act and its disclosure by employees of the EEOC. 71 Employers subject to the provisions of both Executive Order No. 11246 and Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., are required to file EEO-1 reports with both EEOC (see 29 C.F.R. § 1602.7) and OFCC. To facilitate the collection of these reports EEOC and OFCC have established the Joint Report- if Ce 10a The contested documents in this case include Chrysler’s EEO-1 reports and information which falls under three of the six exempt categories defined in 41 C.F.R. § 60- 40.3(a),** namely: (1) those parts of Chrysler’s AAP’s which contain confidential commercial information indicat- ing that a contractor plans major changes or shifts in his personnel requirements not yet publicly disclosed,* (2) those parts of Chrysler’s AAP’s which set forth staffing patterns and pay scales the release of which would injure the business or financial position of the contractor,” and (3) compliance investigation files and related documents to the extent that such information constitutes trade secrets and confidential commercial or financial information.” II Tue AGENcY PROCEEDINGS On May 14, 1975, DSA notified Chrysler that third parties had requested under the FOIA the disclosure of the 1974 AAP of Chrysler’s Newark, Delaware assembly plant, and the October 1974 CIR for that facility. Chrysler, on May 23, 1975 objected to the requested disclosure of the AAP, relying on the FOIA exemptions and OFCC dis- closure regulations. It also requested a copy of the ing Committee (JRC), which receives and processes these reports, and then distributes a copy of each EEO-1 report both to EEOC and OFCC, #2 Section 709(c) and (d) of the Civil Rights Act of 1964, 42 U.S.C, § 2000e-8(c) and (d) authorize EEOC to collect the data contained in the EEO-1 reports. Public disclosure of such data by EEOC is, however, prohibited by § 709(e), 42 U.S.C. § 2000e-8(e). See text at IV B 2 infra. 8 See n.19 supra. **41 C.F.R. § 60-40.3(a) (1). 25 Jd. at § 60-40.3(a) (2). ** Id. at § 60-40.3(a) (5). BM. lla October 1974 CIR, which it had never seen, so that it could determine which parts of it should be treated as confi- dential. On May 30, 1975, DSA notified Chrysler that it had determined that the Newark AAP and CIR were sub- ject to disclosure under the FOIA and OFCC disclosure rules, that Chrysler would not be furnished with a copy of the CIR prior to disclosure, and that both documents would be disclosed on June 4, 1975. On July 1, 1975, DSA notified Chrysler that it had received a request under the FOIA for disclosure of the AAP and CRR for Chrysler’s Hamtramck, Michigan as- sembly plant. The July 1 notice indicated that under the recent amendments to the FOIA, Pub. L. 93-502, 5 U.S.C. § 552(a)(6)(A)(i), DSA was required to make a substan- tive decision on release of these documents within ten working days of receipt of the request, and for that reason could not await the results of an appeal to OFCC under 41 C.F.R. § 60-60.4(d).*7 The DSA letter suggested that any *7 41 C.F.R. § 60-60.4(d) provides: (d) Public access to information. Information obtained from a contractor under Subpart B will be subject to the public inspection and copying provisions of the Freedom of Information Act, 5 U.S.C. 552. Contractors should identify any information which they believe is not subject to disclosure under 5 U.S.C. 552, and should specify the reasons why such information is not disclosable. The Contract Compliance Officer will consider the contractors claim and make a determination, within 10 days, as to whether the material in ques- tion is exempt from disclosure. The contract compliance officer will inform the contractor of such a determination. The contractor may appeal that ruling to the Director of OFCC within 10 days. The Director of OFCC shall make a final determination within 10 days of the filing of the appeal. However, during the conduct of a com- pliance review or while enforcement action against the contractor is in progress or contemplated within a reasonable time, all informa- tion obtained from a contractor under Subpart B except information disclosable under §§ 60-40.2 and 60-40.3 of this chapter is to be considered part of an investigatory file compiled for law enforce- ment purposes within the meaning of 5 U.S.C. 552(b) (7), and such information obtained from a contractor under Subpart B shall be —- -— ee a ee 12a comments Chrysler wished to make should be accomplished promptly. Chrysler, by letters dated July 3 and July 11, 1975, objected to the disclosure of the documents relating to its Hamtramck plant, contending that both the AAP and CRR were exempt from disclosure under the FOIA, and also that disclosure of certain information contained in the AAP, including EEO-1 data, was prohibited by 18 U.S.C. § 1905," by § 709(e) of the Civil Rights Act of 1964, 42 U.S.C. §2000e-8(e),” and by 44 U.S.C. §3508.” Chrysler’s letter also requested a copy of the Hamtramck CRR, which it had never seen. On July 18, 1975, DSA re- plied in part: Full consideration has been given by this agency to your comments and objections. Nevertheless, a deter- mination has been made to release both the Affirmative Action Plan and the Compliance Review Report to the requester, subject to the exceptions noted in the attached list for the reasons given therein. Your as- sertions of competitive harm were unsupported by any showing of the likelihood of such harm, and only in one context would we agree to the existence of such a likelihood without such a showing. This is reflected in the first ten exceptions on the attached list. This decision may be appealed to the Office of Federal Contract Compliance, Washington, D.C. 20210, within 10 days, per 41 C.F.R. 60-60.4. However, due to the time constraints imposed by the recent amendments to the Act (Public Law 93-502), we cannot wait for treated as exempt from mandatory disclosure under the Freedom of Information Act during the compliance review. 38 See n.44 infra. #° See n.22 supra. *° See text at n.85 infra. ee 13a the results of such an appeal. Accordingly, the sub- ject documents, with deletions as noted in the attached list, will be released 5 working days after your receipt of this letter. (JA-100) The July 18 letter also made clear DSA’s posi- tion that neither 18 U.S.C. § 1905, 42 U.S.C. § 2000e-8(e) nor 44 U.S.C. § 3508 applied to any part of the AAP report, including the EEO-1 data. III Tue District Court Proceepincs Faced with the DSA determination that the FOIA, as amended, prohibited the agency from withholding dis- closure while Chrysler exhausted an administrative appeal to OFCC, Chrysler commenced this action in the district court on June 4, 1975. The initial complaint, which was filed before Chrysler learned of the request for disclosure of the Hamtramck documents, only sought injunctive relief against disclosure of the documents relating to the Newark Delaware plant, and a declaratory judginent that public disclosure of any similar documents was prohibited by law. The district court issued a temporary restraining order which prohibited disclosure of the Newark p:ant docu- ments, and which required the d»*” “nts te give Chrysler five days notice prior to the rele » .. any similar doca- ments relating to any of its other facilities. When DSA notified Chrysler of its intention to release the Hamtramck plant documents it amended the complai’ °> -efer to those documents, and obtained from the distr’.* *-art temporary relief covering them as well. Chrysler ’s amended complaint contained three counts. First, Chrysler charged that disclosure of any portion of its AAP’s, EEO-1’s, or of any CIR, or CRR relating to any of its facilities wou!d be unlawful under exemptions (b)(3)(4)(5) and (7) of the FOIA, 5 U.S.C. § 552(b) (3) l4a (4)(5) and (7),** under 42 U.S.C. § 2000e-8(e),” under 18 U.S.C. § 1905,*° and under 44 U.S.C. §3508.% Second, it alleged that such disclosure would be an abuse of agency discretion since it would be contrary to 41 C.F.R. 4 60- 40.3(a)* and 29 C.F.R. §§ 70.21," 70.22," 70.24," and 51 See n.18 supra. 52 See n.22 supra. 53 See n.44 infra. * See text at n.85 infra. 55 See n.19 supra. 8° 29 C.F.R. § 70.21 provides: (a) Pursuant to the provisions of 18 U.S.C. 1905, every officer and employee of the Department of Labor is prohibited from publish- ing, divulging, disclosing, or making 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 the Department or any 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, partner- ship, corporation, or association. No officer or employee of the De- partment of Labor shal] disclose records in violation of this provi- sion of law. (b) No records of the Department of Labor with respect to mat- ters specifically required by statute to be kept secret shall be made available for inspection or copying under the provisions of this part. By virtue of the exclusionary language in 5 U.S.C. 552(b)(3) the disclosure requirements of the Freedom of Information Act do not apply to or authorize the disclosure of records with respect to any matters specifically exempted from disclosure by statute. (c) No records of the Department of Labor with respect to mat- ters specifically authorized under criteria established by Executive order to be kept secret in the interest of the national defense or foreign policy and properly classified pursuant to such order shall be made available for inspection or copying under the provisions of this part. Records concerning such matters are expressly excluded ee 15a from the application of the disclosure requirements of the Freedom of Information Act by the provisions of 5 U.S.C. 552(b) (1). 57 Id. at 70.22 provides: (a) Records exempt from statutory disclosure requirements. The Freedom of Information Act, as codified in 5 U.S.C. 552, lists nine categories of records (in 5 U.S.C. 552(b)) to which the disclosure requirements of the statute do not apply. The first and third of these relate to the records described in § 70.21 which are not dis- closable because protected from disclosure by the express provisions of a statute or a secret classification authorized by Executive order in the interest of national defense or foreign policy. The other seven categories of records excluded from the statutory disclosure require- ments are set forth in §§ 70.23 through 70.28, inclusive. Informa- tion from records in these seven categories may, however, be male available for inspection and copying as provided in paragraph (b) of this section. (b) Disclosure of protected records; conditions precedent. Al- though the Department of Labor is not required by the Freedom of Information Act to make available for inspection or copying any materials or documents included in its records which are within the categories described in 5 U.S.C. 552(b)(2), (4), (5), (6), (7), (8), or (9) (see §§ 70.23-70.28), under the Department’s disclosure policy set forth in § 70.11 particular records requested which come within these categories, or portions thereof, shall nevertheless be made available to the extent, but only to the extent, that the appro- priate officer authorized to disclose information from Department records determines that the disclosure will further the public inter- est and will not impede the discharge of any of the functions of the Department of Labor. Such a determination shall be made with due regard not only to the public interest in accessibility to the people of information regarding operations of their Government but also to the public interest in protecting citizens from impairment of their rights to privacy or from harassment, injury, or the dissemination of information concerning them which is privileged or has been submitted by them to the Government on a confidential basis. In determining whether access to such records will be permitted, due consideration shall also be given to the public interest in prevent- ing disclosure of information which would handicap, obstruct, or jeopardize effective performance of the Department’s functions under statutes or Executive orders, including its duties with respect to law enforcement, - ~—— l6a 58 Jd. at 70.24 provides: (a) Pursuant to exemption (4) set forth in 5 U.S.C. 552(b), and as provided in § 70.22, the disclosure from Department of Labor records of matters that are trade secrets, and of commercial] and financial information obtained from a person and privileged or confidential, may be refused. Legal requirements of secrecy and prohibitions of disclosure may apply to such records as set forth in § 70.21. Disclosure shall be refused where these mandatory restric- tions apply to the records sought. Even where denial of access is not required by these restrictions, access to records exempted from the disclosure requirements by exemption (4) cannot be granted under the policy expressed in §§ 70.11 and 70.22 unless the dis- closure officer, in balancing the right of the public to know how the Government operates against the need of the Government to keep information in confidence and the right of the person from whom it was obtained to have privileges and confidences respected, is able to determine that disclosure will serve the public interest and not impede the discharge of any function of the Department of Labor. (b) The intent of the examination set forth in paragraph (a) of this section to protect privileged or confidential information is, according to the committee reports in both Houses of Congress, not restricted to the trade secrets and commercial or financial informa- tion specifically mentioned in the statute. Information the disclosure of which may be refused pursuant to this exemption is, according to the legislative history, intended to include information customarily subject to a doctor-patient, lawyer-client, or other such privilege. (ec) Information ‘‘obtained from any person’’ would include in- formation obtained from a person inside as well as outside the Gov- ernment. The applicability of this exemption does not depend on whether the record contains information obtained from the public at large, from a particular person, from within the Department, or from another agency. While information which is confidential in the hands of one agency retains its protected character in the hands of agencies to which it is subsequently furnished, the exemption does not sanction the rendering of documents confidential by the expedient of transferring them among agencies. (d) Except as otherwise provided in this part (e.g., § 70.13), disclosure in certain cireumstances may be refused of material such as formulae, designs, drawings, research data, and the like, which are significant not as records but as items of valuable property. These may have been developed by or for the Government for its use and at its expense. Nothing in the legislative history suggests that the Freedom of Information Act was intended to give away 17a such valuable property to any person willing to pay the price of making a copy. Where similar property in private hands would be held in confidence, the public interest would appear to require that such property in the hands of an agency should be protected under exemption (4). (e) This exemption is further intended to extend protection to other information in Government records which has been furnished and accepted in confidence and which would not customarily be released to the public by the person from whom the Government obtained it. See, for example, the House Report (H. Rept. 1497, 89th Cong., 2d Sess.) and the President’s signing statement. Accord- ingly, the exemption assures the confidentiality of information thus obtained by the Department of Labor through questionnaires and required reports to the extent that the information would not cus- tomarily be made public by the person from whom it was obtained. Nothing in the Freedom of Information Act necessitates a disre- gard of the right of individuals or groups to rely in good fai‘a on an understanding of confidentiality for which a Government agency has reasonably afforded a basis. Maintenance of citizens’ respect for governmental fairness requires that such understanding be given due consideration, At the same time, Department representa- tives should be alert to discourage the development of such under- standings where not clearly warranted by departmental responsi- bilities. (f) Pursuant to exemption (8) set forth in 5 U.S.C. 552(b), and as provided in § 70.22, the disclosure from Department of Labor records of any matter contained in, or related to, examination, operating, or condition reports prepared by, on behalf of, or for the use of an agency responsible for the regulation or supervision of financial institutions, may be refused. Exemption (8) emphasizes the application to financial institutions of the protection from dis- closure afforded by the exemption set forth in paragraph (a) of this section, and makes plain the intent to protect information relating to such institutions which may be prepared for or used by any agency responsible for the regulation or supervision of such institutions. Access to any such information in records of the Labor Department will be refused where disclosure is not legally permitted or where a determination to disclose is inappropriate for reasons discussed in paragraph (a) of this section. In cases where another agency is concerned with information protected by exemption (8) in 5 U.S.C. 552(b) which is sought from records of the Department, the provisions of § 70.31 are also applicable. 18a 70.31.% Third, it contended that the FOIA and OFCC disclosure rules as applied to Chrysler violate due process in that they afford no meaningful right to be heard in- itially or on appeal before disclosure of Chrysler’s con- fidential information. By a stipulation and consent order the pendente lite restraints were continued until final hear- ing. In its pre-trial papers the government defendants objected to the court’s jurisdiction and to the holding of an evidentiary hearing. The court reserved decision on these objections until a decision on the merits. Trial on the merits was held on August 25 and 26, 1975 and there- after the parties filed a detailed ‘‘Stipulation of Facts and Issues.”’ The district court’s opinion correctly holds that there is subject matter jurisdiction under 28 U.S.C. § 1331(a).* On the merits the court found that part of the information the agency proposed to release, described generically as the ‘‘manning tables,’’** was confidential commercial in- %* Id. at 70.31 provides: If the release of a record in custody of the Department of Labor would be of concern not only to the Department but also to another Federal agency, the record will be made available by the Depart- ment only if its interest in the record is the primary interest and only after coordination with the other interested agency. If the in- terest of the Department in the record is not primary, the request will be transferred promptly to the agency having the primary in- terest, and the applicant will be so notified. The release of informa- tion received from another agency and the release to another agency of information collected from persons outside the Government shall be subject to the conditions and restrictions imposed by 44 U.S.C. 3508. * E.g., Planning Research Corp. v. F.P.C., 555 F.2d 970 (D.C. Cir. 1977) ; Westinghouse Elec. Corp. v Schlesinger, supra, 542 F.2d at 1209-10 ; Sears, Roebuck & Co. v. General Services Administration, Civ. No. 75-2127, Slip op. at 3 & n.6 (D.C. Cir. filed April 1, 1977) ; see Bachowski v. Brennan, 502 F.2d 79, 82 (3d Cir. 1974), rev’d on other grounds, 421 U.S. 560 (1975); ef. Califano v. Sanders, 45 U.S.L.W. 4029 (U.S. February 23, 1977). “The district court described the manning tables as lists of 19a formation, the release of which could cause Chrysler sub- stantial competitive harm.**? On the basis of this finding the court concluded that the manning tables constituted information falling within exemption (b)(4) of the FOIA, and was therefore exempt from its mandatory disclosure provisions. The court then reasoned that since the man- ning tables constituted exempt information under the FOIA, whether DSA possessed the power to disclose these documents was to be determined by reference to other federal disclosure statutes, apart from the FOIA. Thus the court rejected Chrysler’s argument that the FOIA creates a so-called reverse FOIA cause of action based on the theory that Congress, by exempting certain informa- tion from mandatory disclosure, intended to absolutely prohibit all agency disclosure of such exempt information under any circumstances.** Instead, the court held that 18 U.S.C. § 1905, a criminal statute, made it a crime for a Chrysler’s internally used job titles and the number of people who perform each job. *?In reaching this conclusion the court relied on the testimony of Chrysler’s witnesses, rather than on the rather spare administra- tive record. *s See generally, Clement, The Rights of Submitters to Prevent Agency Disclosure of Confidential Business Information: The Re- verse Freedom of Information Act Lawsuit, 55 Texas L.R. 587 (1977) ; Note, Reverse-Freedom of Information Act Suits: Con- fidential Information in Search of Protection, 70 Nw. U.L. Rev. 995 (1976) ; Note, Protection From Government Disclorure—The Re- verse-FOIA Suit, 1976 Duke L.J. 330. “18 U.S.C. § 1905 provides: 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 — ~~ mee, 20a government employee to disclose the manning tables. Ob- serving that the Secretary of Labor, on the authority of 5 U.S.C. § 301,“ a general statute providing for the use and custody of government records, promulgated 29 C.F.R. § 70.21(a),** which forbids disclosure of confidential infor- mation the release of which would violate 18 U.S.C. § 1905, the court concluded that DSA was acting in violation of its own regulations and contrary to law. Thus it construed what it held to be DSA’s governing regulation as consis- tent with 18 U.S.C. § 1905. It issued the injunction appealed from on the authority of 5 U.S.C. § 706(2)(A) to prevent agency action ‘‘not in accordance with law.’’ The court also held that 42 U.S.C. § 2000e-8(e) was inapplicable, and rejected Chrysler’s due process contentions. IV Discussion This case is one of a burgeoning number growing out of the conflict between the demands of federal regulatory agencies, as a necessary by-product of their regulatory activities, for the submission by private businesses of de- tailed financial, commercial and employee information, which would not voluntarily be disclosed to competitors, and the public access to most information in federal 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 ex- penditures 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. ** See text following n.69 infra. * See n.36 supra. ithaca s “ OO elt CORRAL EM, 2la agency files which is mandated by the FOIA. It is, how- ever, the first occasion which requires this Court to con- sider a reverse FOIA case, in which a corporate plaintiff (the submitter) seeks to enjoin an agency from disclosing submitter-generated business information.*’ The case pre- sents several important issues about agency management of such information, about agency discretion to disclose information in the public interest, about submitter rights prior to disclosure and about the availability of remedies for the prevention of disclosure. The FOIA requires agencies to disclose upon request any information not falling within one of nine specifically exempted categories.** The arguments of Chrysler and other corporate submitters seeking to prevent disclosure break down into three broad categories. First, Chrysler and others have urged that the FOIA itself both prohibits agency disclosure of information falling within any of the nine exemptions and affords an implied cause of action for injunctive or declaratory relief to prevent such disclosure. Second, they have claimed that even if the FOLIA does not prohibit agency disclosure of exempt FOIA information, other statutes, such as 18 U.S.C. §1905 and 42 U.S.C. § 2000e-8(e) do so, and afford an implied cause of action. Third, they contend that disclosure of submitter-generated business information that is exempt under the FOIA or protected by some other federal statute or regulation is an abuse of agency discretion subject to judicial review under the Administrative Procedure Act at the behest of a submitter adversely affected by such agency action. The first two categories would afford relief in the form of a trial de novo, while in the third judicial review would be limited to that available under 5 U.S.C. § 706. The posture ‘T But cf. Westinghouse Elec. Corp. v. United States Nuclear Regulatory Comm'n, 555 F.2d 82, 93-94 (3d Cir. 1977). * See 0.18 supra. OE OR ee 22a of this appeal and cross-appeal requires that we address each theory on which a reverse FOIA action could be founded. A. The Freedom of Information Act The FOIA expressly creates a cause of action in favor of requesters of information to enjoin federal agencies from withholding information.” It does not by its terms provide a cause of action for submitters of information to prevent disclosure. But while there is no express provi- sion for an action by submitters, the FOTA’s nine cate- gories of exempt information disclose a Congressional concern that disclosure of certain information might in- jure interests in privacy or confidentiality which may be as important as the public’s right to general access to agency information. The fourth FOIA exemption, for ex- ample, covers ‘‘trade secrets and commercial or financial information obtained from a person and privileged or confidential.’’ ** There is ample Congressional history sug- gesting that Congress sought to afford some protection of submitters’ interest in the confidentiality of such infor- mation.” Moreover we recognize that disclosure of sub- mitter information is qualitatively different from disclo- sure of data directly relating to government operations, and that the interest in privacy appears stronger with respect to the former than the latter. But while the Con- gressional concern over confidentiality of submitter infor- mation is clear, an intention to make mandatory the non- disclosure of exempt information is less so, and the evi- * 5 U.S.C. § 552(a) (4)(B) (Supp. V 1975). 5° See n.18 supra. 51 Td. ** See, e.g., 8. Rep. No. 813, 89th Cong., Ist Sess. 9 (1965) ; H.R. Rep. No. 1497, 89th Cong., 2d Sess. 10, reprinted in 2 U.S. Code Cong. & Ad. News 2418, 2427 (1966). IND Vea © 23a dence of an intent to create a submitter cause of action is practically nonexistent. Among the circuits which have considered the issue the District of Columbia * and the Fifth Circuits * have held that the FOIA exemptions are permissive and do not mandate agency withholding of exempt information. The Fourth Circuit has held that the exemptions mandate non- disclosure.** The Ninth Circuit, while first holding that the exemptions are mandatory, on rehearing withdrew that part of its opinion as premature.** The closest the Su- preme Court has come to addressing the issue is the state- ment in E.P.A. v. Mink, 410 U.S. 73, 80 (1973), that the FOIA exemptions ‘‘represent[s] the congressional deter- mination of the types of information that the Executive Branch must have the option to keep confidential, if it so chooses.’’ *’ In our view, none of the opinions referred to contains a complete analysis of the myriad problems pre- sented in reverse FOIA cases. We conclude that Congress in the FOIA intended neither that the exemptions make non-disclosure manda- tory nor that they provide the predicate for an implied cause of action. The two questions are interdependent, 58 Charles River Park ‘‘A’’, Inc. v. Department of HUD, 519 F.2d 935 (D.C. Cir. 1975). ** Pennzoil Co. v. FPC, 534 F.2d 627 (5th Cir. 1976). 5° Westinghouse Elec. Corp. v. Schlesinger, 542 F.2d 1190 (4th Cir. 1976), cert. denied sub nom. Brown v. Westinghouse Elec. Corp., US. (1977) (apparently overruling Moore- McCormack Lines, Ince. v. I.T.0. Corp., 508 F.2d 945, 950 (4th Cir. 1974) ). % Union Oil Co. of California v. FPC, 542 F.2d 1036, 1045 (9th Cir. 1976). °* See FAA Administrator v. Robertson, 422 U.S. 225, 262, 269 n.l1 (1975); Department of the Air Force v. Rose, 425 U.S. 352, 361 (1976). : ; 24a since it would obviously be difficult to imply a cause of action under the FOIA to bar government officials from releasing information the disclosure of which Congress in- tended to leave to agency discretion or other federal disclosure statutes. Both the plain language of § 552(b)" and the Congressional reports and debates suggest that no more was intended than a discretionary exception to the general mandatory duty of disclosure.** Nor can we ignore the contrast between the FOIA’s express grant of a cause of action for requesters of information® and its silence respecting submitter relief. Moreover, we note that when Congress in the Prvacy Act of 1974" decided to create a civil cause of action to enjoin agency disclosure of FOIA exempt information it did so explicitly. See 5 U.S.C. § 552a(g)(1) (Supp. V 1975). But only private persons, not business entities were afforded this protection.” Fi- °° The subsection of the FOIA dealing with exempt information only states that the Act’s mandatory disclosure requirement ‘‘does not apply to matters that are’’ within the nine exempt categories. See n.18 supra. 5° F.g., H. Rep. No. 1497, supra n.52, at 2, 5-7, reprinted in 2 U.S. Code Cong. & Ad. News 2418, 2419, 2422-24 (1966) ; S. Rep. No. 813, supra n.52, at 10; 112 Cong. Ree. 13641 (remarks of Rep- resentative Moss, sponsor of the FOIA in the House). But see id. at 13,645 (remarks of Representative King), 13649 (remarks of Representative Fascell ). * See n.49 supra. * Pub. L. 93-597, 88 Stat. 1896, codified at 5 U.S.C. § 552a(b) (Supp. V 1975). The Privacy Act covers exempt FOIA informa- tion which relates to individuals and provides that ‘‘[n]o agency shall disclose any record which is contained in a system of records by any means of communication to any person, or to any other agency, except pursuant to a written request by, or with the prior insert of, the individual to whom the record pertains... .”’ *? The Senate Report to the Privacy Act states that the Act is intended to ‘*distinguish between the rights which are given to the citizen ee 25a nally, we think that judicial reconstruction of the statute to imply from the exemptions either a mandatory duty of non-disclosure or a cause of action to prevent disclosure, would be inconsistent with the basic purpose of the FOIA, which was not to afford confidentiality, but to overcome restrictive agency interpretations of the original public information section of the Administrative Procedure Act.® The general philosophy reflected in the FOTA is that of full agency disclosure to provide the public with speedy access to relevant information. Recognizing an implied cause of action to prevent agency disclosure of exempt FOIA information would, we think, be inconsistent with that general philosophy, since it would place in the hands of interested submitters of information, rather than those of presumably disinterested governmental officials, the au- thority to take steps which might impede the dissemina- tion of information of public importance. Thus we hold that the FOIA’s language, legislative history, and philos- ophy of full disclosure bar a construction of the Act which mandates agency withholding of exempt information or recognizes an implied cause of action to prevent the dis- closure of such information. B. Other Non-Disclosure Statutes Although we conclude that the FOIA does not limit the discretionary power of federal agencies to disclose exempt as an individual under this Act and the rights of proprietor- ships, businesses and corporations which are not intended to be covered by this Act. This distinction was to insure that the bill leaves untouched the Federal Government’s informa- tion activities for such purposes as economic regulations.’’ S. Rep. No. 1183, 93d Cong., 2d Sess. 79 (1974). ® See S. Rep. No. 813, supra n.52, at 4, S. Rep. No. 93-854, 93d Cong., 2d Sess. at 6 (1974): H. Rep. No. 1497, supra n.52, at 4-5, reprinted in 2 U.S. Code Cong. & Ad. News 2418, 2421-22 (1966) ; H.R. Rep. No. 93-221, 93d Cong., Ist Sess. at 59-60 (1973). 5d. 26a FOIA information, we recognize that the exercise of this discretionary authority may be prohibited, or substantially curtailed, by other federal non-disclosure statutes.” See FAA Administrator v. Robertson, supra, 422 U.S. at 264- 66. Chrysler contends that apart from the FOIA, at least three non-disclosure statutes prohibit DSA from releasing the contested documents. Our consideration of that con- tention requires, with respect to each statute, the same dual inquiry we made respecting the FOIA: (1) does the statute forbid disclosure of the documents in issue; and (2) if so, can a private cause of action be implied from it. 1. 18 U.S.C. § 1905 The statute on which Chrysler and most other reverse FOIA plaintiffs place principal reliance is 18 U.S.C. § 1905. On its face, this broadly worded criminal statute encompasses virtually every category of business informa- tion likely to be in the files of any federal agency.’ How- ever, in Westinghouse Elec. Corp. v. Nuclear Regulatory Commission, supra, we noted that § 1905’s broad non-dis- closure prohibitions apply only to disclosures ‘‘not au- thorized by law,’’ and held that information disclosed pursuant to a validly enacted agency regulation is au- thorized by law.” Chrysler urges that in Westinghouse we erred, that an agency regulation does not have the force of law for purposes of § 1905, and that only specific Congressional statutes can authorize the release of infor- mation covered by § 1905. Moreover, it urges that even assuming the correctness of Westinghouse, disclosures ** For a compilation of federal non-disclosure statutes see Clement, supra n.43, at 598 n.40. ** See, e.g., Westinghouse Elee. Corp. v. Schlesinger, supra n.55; Charles River Park ‘‘A’’, Inc., supra n.53. *" See n.44 supra for text. ** 555 F.2d at 94. —" (Deere AO A = TO ee OEE EERE Ble BREE I oO pe Tee NN, Gem me 27a pursuant to the OFCC disclosure regulations are not authorized by law for purposes of § 1905, because these regulations were adopted under the authority of 5 U.S.C. § 301, and Congress intended that § 301 not be used to limit the scope of § 1905. While our discussion of the scope of the ‘‘not author- ized by law’’ qualification to § 1905 in Westinghouse was not extended, we are confident that the holding is correct. In Westinghouse we found authority for the promulgation of the Nuclear Regulatory Commission’s disclosure regu- lations in that agency’s Congressionally enacted enabling act. That holding was consistent with those of the Su- preme Court in cases involving the disclosure of infor- mation by other federal agencies. Though OFCC has no statutory enabling act, it is authorized to promulgate dis- closure regulations under the so-called housekeeping stat- ute, 5 U.S.C. § 301, which provides in part: The head of an exclusive department or military de- partment may prescribe regulations for . . . the cus- tody, use, and preservation of its records, papers, and property. This section does not authorize withholding information from the public or limiting the avail- ability of records to the public. Section 301 can be traced to the Act of July 27, 1789, Ch. 4, §4, 1 Stat. 28, dealing with records of the State De- partment and the Act of August 7, 1789, Ch. 7, § 4, 1 Stat. 49, dealing with records of the War Department. Various housekeeping statutes were collected and codified in 1874,” and, as codified, granted authority to prescribe disclosure * See, e.g., FCC v. Schreiber, 381 U.S. 279, 289-94 (1965) ; Isbrandtsen-Mollen Co. v. United States, 300 U.S. 139 (1937); Norwegian Nitrogen Co. v. United States, 288 U.S. 294 (1933). 7 See Revised Statutes of the United States § 161 (1st ed. 1873- 1874). 25a regulations. The present version, and in particular the last sentence, was enacted in 1958." The legislative his- tory makes clear that the addition of the last sentence was aimed at stopping agencies from relying on the house- keeping statute as authority to deny the requests of citi- zens for information.” In Non-Resident Taxpayers Ass’n v. Municipality of Philadelphia, 478 F.2d 456 (3d Cir. 1973), we held that § 301 authorized a Bureau of the Budget circular that in- structs executive departments to furnish information to state and local taxing authorities regarding compensation paid to federal employees. Such a disclosure, absent the regulation, would clearly conflict with the broad language of § 1905. Thus, although we did not expressly address §1905 in Non-Resident Taxpayers Ass’n, the holding is consistent with our conclusion in Westinghouse, that dis- closures pursuant to validly adopted agency regulations are not subject to the strictures of § 1905. We have been referred to no legislative history sug- gesting that § 1905, a 1948 codification of a gro.» of statutes applicable to specific agencies," was intended to ™ Act of Aug. 12, 1958, Pub. L. No. 85-619, 72 Stat. 547. 7? See S. Rep. No. 1621, 85th Cong., 2d Sess. 3-4 (1958) ; H.R. Rep. No. 1461, 85th Cong., 2d Sess. 2 (1958). "8 See Act of June 25, 1948, ch. 645, § 1905, 62 Stat. 683 (codified at 18 U.S.C. § 1905 (1970). The Revisers Notes in the House re- port, H.R. Rep. No. 304, 80th Cong. 1st Sess. A127-A128 (1947), accompanying the 1948 revision of the Criminal Code states that § 1905 consolidated an income tax statute, 18 U.S.C. § 216 (1940), a Tariff Commission Statute, 19 U.S.C. § 1335 (1940), and a Com- merce Department statute, 15 U.S.C. § 176a (1940). The Consumer Federation of America urges in its amicus brief that § 1905 should be interpreted narrowly, and consistent with interpretations of these three predecessor statutes. See, e.g., United States v. Cook, 384 U.S. 257 (1966). The basis of our decision in this case pre- cludes consideration of that contention. For an excellent discus- sion of the legislative history of § 1905 and its predecessor statutes ee Clement, supra n.43, at 607-617. 29a limit the longstanding rulemaking authority under the 1874 codification of the housekeeping statute. Nor do we attach to the statement of Congressman Moss, respecting the 1958 amendment to the housekeeping statute (adding the last sentence of § 301), the same significance as the District of Columbia Circuit in Charles River Park ‘‘A’’, Inc. v. Department of HUD, supra, 519 F.2d at 942-43. Relying on Congressman Moss’ statement that the 1958 amendment ‘‘does not affect the confidential status of information given to the government and carefully detailed in Title 18, United States Code, Section 1905 .. .’’,”* that court concluded that ‘‘§ 301 does not authorize regulations limiting the scope of § 1905.’’ ** In doing so, however, the court took the statement out of context. Congressman Moss only stated that the amendment would not affect the confidential status of information covered by $1905. He did not say that the amendment eliminated disclosure au- thority existing since 1789, or that it eliminated the ‘‘au- thorized by law’’ qualification in 41905. Such an inter- pretation of the 1958 amendment is totally at odds with its central purpose—the elimination of governmental secrecy "*—as it would transmogrify § 1905 into a weapon for those parties who advocate government secrecy. Thus we adhere to the position we took in Non-Resident Taz- payers Ass’n, that §301 is a separate source of agency authority for the promulgation of disclosure regulations, and disclosures pursuant to such regulations are author- ized by law and immune from the prohibitions of § 1905. Since the OFCC disclosure regulations are valid under § 301, all disclosures pursuant to those regulations are authorized by law and therefore not subject to § 1905. Since we find authority for the promulgation of the OFCC disclosure regulations in § 301 we need not consider ™* 104 Cong. Rec. 6550 (1958). 7° 519 F.2d at 942-43. *® See n.72 supra. 30a whether the FOIA itself, properly construed, is an inde- pendent source of authority for the promulgation of disclosure regulations for exempt information.” Nor need we decide whether absent § 301, Executive Order 11246, which confers authority on the Secretary of Labor to adopt ‘‘such rules and regulations ... as he deems neces- sary to achieve the purposes of the order’’,” is a separate source of authority for such promulgation. Our deferment of these grounds for sustaining the regulations should not be considered an expression of doubt as to these sources of authority, but only of confidence in our prior § 301 holding. Even if we were incorrect in the Westinghouse holding that agency regulations are laws for purposes of the qualification to 41905 we would, in any event, reject the proposition that § 1905 would serve as a predicate for a private civil cause of action. Recent pronouncements of the Supreme Court have severely limited the circum- stances in which a federal court may imply a private cause of action from a federal statute. Whatever the merits of this trend, the decisions bind us. Here the criminal statute provides for a fine of not more than ™ See General Services Administration v. Benson, 415 F.2d 878, 880 (9th Cir. 1969). A number of federal agencies in addition to OFCC have promulgated such regulations. See 28 C.F.R. § 16.1(a) (1976) (Justice Depart.) ; 43 C.F.R. §2.13(d) (1976) (Interior Dept.) ; 45 C.F.R. § 4.74 (1976) (H.E.W.); 29 C.F.R. § 70.11(b) (1976) (Labor Dept.); 24 C.F.R. § 15.21 (1976) (HUD); 49 C.F.R. § 7.51 (1976) (Transportation Dept.) ; 32 C.F.R. § 286.4(b) (Defense Dept.) ; 41 C.F.R. § 105-60.104-2 (1976) (GSA) ; 39 Fed. Reg. 44,602 (1974) (FDA); 39 Fed. Reg. 30, 298 (1974) (Con- sumer Product Safety Commission). 8 See n.6 supra. 7 See, e.g., Cort v. Ash, 422 U.S. 66 (1975), Securities Investors Protection Act v. Barbour, 421 U.S. 412 (1975); National R.R. Passenger Corp. v. National Ass’n of R.R. Passengers, 414 U.S. 453 (1974). 3la $1000, imprisonment for not more than a year, and auto- matic removal from office upon conviction. The adequacy of these penalties would seem to assure the achievement of the Congressional objectives underlying § 1905. The very breadth of the prohibitions in § 1905 militates against opening the courts to civil suits which may involve sub- stantial problems of construction. Moreover, as we hold hereafter, there is an available remedy under the Ad- ministrative Procedure Act, in which judicial review will be enlightened by agency interpretation. We do not believe we can properly imply a cause of action, and thus the right to a trial de novo, from § 1905. 2. 42 U.S.C. § 2000e-8(e) Section 709(e) of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-8(e), is a criminal statute making it unlawful ‘‘for any officer or employee of [EEOC] to make public in any manner whatever any information ob- tained by [EEOC] pursuant to its authority under this section prior to the institution of any proceeding under this subchapter involving such information.”’ Like § 1905, the maximum fine is $1000 and the maximum imprisonment one year. And, as with § 1905 and the FOIA, we must determine both whether the prohibition in 4 709 (e) applies and, if it does, whether a private cause of action for its enforcement may be implied. By its terms § 709(e) applies only to employees of EEOC, and only to information obtained by that agency on its own statutory authority. Since it is a criminal statute, ordinary rules of construction would seem to preclude its application, at least in a criminal enforcement context, to officers or employees of a different agency or to information obtained by a different agency under that agency’s separate au- thority. Two circuits have concluded that OFCC compli- 32a ance agencies are not governed by the §709(e) prohibi- tion.” Chrysler argues that those cases were wrongly decided, first because OFCC and EEOC are performing identical antidiscrimination functions, and second, because the EEO-1 reports are filed initially with the Joint Re- porting Committtee,“* which it describes as the alter ego of EEOC. It has long since been settled in this circuit that the federal government’s antidiscrimination effort directed at government contractors rests upon a different authority, and even serves a different, though complementary, pur- pose that the efforts of EEOC." The Executive Order program antedated the passage of Title VII, and Congress has rejected proposals to transfer the Executive Order functions of OFCC to EEOC." The two agencies function independently, and we decline the invitation to disregard that independence in order to read § 709(e) as applicable to OFCC compliance agencies such as DSA. The argument that the Joint Reporting Committee (JRC) is the alter ego of EEOC, and that all EEO-1 forms “’ Westinghouse Elec. Corp. v. Schlesinger, 542 F.2d 1190, 1199 (4th Cir. 1976), cert. denied sub nom. Brown v. Westinghouse Klee. Corp. USS. (1977); Sears, Roebuck and Co. v. General Services Admin., 509 F.2d 527, 529 (D.C. Cir. 1974). But cf. Chamber of Commerce v. Legal Aid Society, 423 U.S. 1309 (1975) (Douglas, J., denying motion for a stay). *? See n.21 supra. ** Contractors Ass’n of Eastern Pa. v. Secretary of Labor, 442 F.2d 159, 173 (3d Cir. 1971), cert. denied, 404 U.S. 854 (1971); EEOC v. AT&T, Civ. Nos. 76-2217, 76-2281, 76-2285 (3d Cir. filed April 22, 1977), 45 U.S.L.W. 2508 (1977), petition for cert. filed 45 US.L.W. (1977). ** Compcre H. Rep. No. 92-238, 92d Cong. 2d Sess., reprinted in U.S. Code Cong. & Ad. News, 2137, 2150 (1972) (suggesting the transfer of OFCC to EEOC) with the final version of the 1972 amendments to Title VII, Pub. L. 92-261, 86 Stat. 104. 33a filed with JRC must therefore fall within §709(e) is no more persuasive. The JRC is a consequence of the 1972 amendments to Title VII which established the Equal Em- ployment Opportunity Coordinating Council, 42 U.S.C. § 2000e-14. The Coordinating Council is responsible for, among other things, implementing inter-agency agree- ments to eliminate duplication among the operations, func- tions and jurisdictions of various federal agencies enforc- ing federal antidiscrimination employment policies. JRC was organized by the Coordinating Council to streamline the collection of employment discrimination information and to distribute it, without the necessity for multiple fil- ings, to the separate agencies involved.“ It is clear that JRC is the agent of several enforcement authorities. Nevertheless, nothing in 42 U.S.C. § 2000e-14 or in the im- plementing regulations which created JRC suggests an intention to extend the applicability of § 709(e) to federal employees outside EEOC or to information possessed by other agencies on their own authority. Even assuming the applicability of §4709(e) to DSA, we are no more persuaded that a private cause of action can be implied from this criminal statute than from § 1905. The same reasons for our rejection of a private cause of action implied from $1905 apply to §709(e), and we will not repeat them. Chrysler’s argument for a right to a trial de novo based on § 709(e) of Title VII is rejected. 3. 44 U.S.C. § 3508 Section 423 of the Federal Reports Act of 1942," now codified as 44 U.S.C. § 3508 * provides: * See, e.g., 41 C.F.R. 60-40.4. *5 Pub. L. 77-831, ch. 811, § 4, 56 Stat. 1079. This act was de- signed to minimize the burden and expense to citizens of com- plying with multiple government requests for information and to eliminate unnecessary duplication of reporting requirements. See 88 Cong. Rec. 9165 (Nov. 27, 1942). ** Pub. L. 90-620, 82 Stat. 1304. 34a (a) If information obtained in confidence by a Fed- eral agency is released by that agency to another Federal ageiicy, all the provisions of law including penalties which relate to the unlawful disclosure of information apply to the officers and employees of the agency to which information is released to the same extent and in the same manner as the provisions apply to the officers and employees of the agency which originally obtained the information. The officers and employees of the agency to which the information is released, in addition, shall be subject to the same pro- visions of law, including penalties, relating to the un- lawful disclosure of information as if the information had been collected directly by that agency. (b) Information obtained by a Federal agency from a person under this chapter may be released to another Federal agency only— (1) in the form of statistical totals or sum- maries; or (2) if the information as supplied by persons to a Federal agency had not, at the time of col- lection, been declared by that agency or by a su- perior authority to be confidential ; or (3) when the persons supplying the information consent to the release of it to a second agency by the agency to which the information was origi- nally supplied; or (4) when the Federal agency to which another Federal agency releases the information has au- thority to collect the information itself and the authority is supported by legal provision for criminal penalties against persons failing to sup- ply the information. Chrysler argues that by virtue of the second sentence in § 3508(a) the employees of DSA are subject to the crim- Se ek 35a inal provisions of §709(e) of Title VII, even though that criminal statute would otherwise be applicable only to EEOC employees. This argument, however, assumes that DSA obtained the information in question from EEOC. Clearly that is not the case with respect to the AAP’s, the CIR’s, or the CRR’s. Though DSA and EEOC both ob- tain Chrysler’s EEO-1 reports from the JRC, in the pre- ceding subsection we rejected Chrysler’s contention that the JRC is an alter ego of EEOC, rather than a collection agent of both EEOC and OFCC. Since DSA did not ob- tain the EEO-1 reports from EEOC, but instead, obtained this information on its own behalf in the first instance, § 3508(a) does not apply. Sears, Roebuck & Co. v. GSA, 509 F.2d 527, 529 (D.C. Cir. 1974). Nor may Chrysler argue that the provisions of § 3508(b) prohibit DSA from publicly disclosing the contested documents, since this sub- section only governs inter-agency transfers of information, and is not applicable to agency decisions to disclose in- formation to the general public. We hold that § 3508 is entirely inapplicable to the case before us. Whether this statute, which contains no sanc- tions, would support an implied private cause of action to prevent inter-agency transfers of information in violation of its terms is a question of some difficulty, which we do not here decide. C. The Administrative Procedure Act The government first took the position that there could be no judicial review, on behalf of a submitter, of an agency decision to release information requested by third parties under the FOIA. It now concedes that judicial re- view pursuant to the Administrative Procedure Act (APA) is available because a submitter may be ‘‘[a] person suf- fering legal wrong because of agency action . .. within the meaning of a relevant statute.’’* In light of that con- 875 U.S.C. § 702 (1970). See text following n.4 supra. 36a cession there is no need te expound at length on the reasons why we agree with those courts which have held that the APA provide a cause of action for enjoining an agency from disclosing submitter-generated information." The district court rejected the government’s first position and held that judicial review was available under the APA. But while we agree with that ruling we have some diff- culties with its application in this case. Our first difficulty is with the district court’s holding that DSA, in its decision to disclose the manning tables, which the court viewed as confidential data, was acting in violation of its own regulations, 29 C.F.R. § 70.21(a),” and thus ‘‘not in accordance with law.’’*” Although 29 C.F.R. § 70.21(a) is modeled after the criminal disclosure prohibitions in 18 U.S.C. § 1905,” it, like § 1905, only pro- hibits disclosures ‘‘not authorized by law.’’ Since we have held that any disclosures pursuant to the OFCC disclosure regulations are authorized by law, the prohibitions in 29 C.F.R. § 70.21(a) are not applicaole to this case. Our second difficulty with the decision concerns the proper scope of judicial review under the APA. In reach- ing its decision the district court held a trial de novo on the merits of Chrysler’s assertions and relied heavily on the trial testimony of Chrysler’s witnesses in reaching the determination that the manning tables constituted confi- dential data which DSA could not disclose. Judicial review under the APA ordinarily is limited to a ‘‘review of the ** See, e.g., Charles River Park ‘‘A’’, Inc., supra, 519 F.2d at 941 n.6; Pennzoil Co. v. F.P.C., supra, 534 F.2d at 631-32 (5th Cir. 1974) ; GTE Sylvania, Inc. v. Consumer Product Safety Com- mission, 404 F. Supp. 352, 366-67 (D. Del. 1975). ®° See n.36 supra for text. °° 5 U.S.C. § 706(2)(A) (1970). "Compare 18 U.S.C. § 1905, supra at n.44, with 29 C.F.R. § 70.21(a), supra at n. 36. 37a whole [agency] record or parts of it cited by a party.’’” That rule is not inflexible, for certainly evidence may be taken in connection with an application under 5 U.S.C. § 705 for relief pending review. Moreover, the Suprem [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385005_0855%3A01. Public record. Not legal advice.