Course No. 9200-704 (and 804)-801
ID No. 16545
MW 3:00 - 4:30 p.m.
Room 231D (IP Alcove)
|Copyright © 2000, 2002, 2003, 2006, 2008 Jay Dratler, Jr. For permission, see CMI.|
Chrysler Corp. v. Brown441 U.S. 281, 99 S. Ct. 1705, 60 L.Ed.2d 208 (1979)
Rehnquist, J., delivered the opinion for a unanimous Court. Marshall, J., filed a concurring opinion. [*285]
MR. JUSTICE REHNQUIST delivered the opinion of the Court.
The expanding range of federal regulatory activity and growth in the Government sector of the economy have increased federal agencies' demands for information about the activities of private individuals and corporations. These developments have paralleled a related concern about secrecy in Government and abuse of power. The Freedom of Information Act (hereinafter FOIA) was a response to this concern, but it has also had a largely unforeseen tendency to exacerbate the uneasiness of those who comply with governmental demands for information. For under the FOIA third parties have been able to obtain Government files containing information submitted by corporations and individuals who thought that the information would be held in confidence.
This case belongs to a class that has been popularly denominated "reverse-FOIA" suits. The Chrysler Corp. (hereinafter Chrysler) seeks to enjoin agency disclosure on the grounds that it is inconsistent with the FOIA and 18 U. S. C. § 1905 [the "Trade Secrets Act"], a criminal statute with origins in the 19th century that proscribes disclosure of certain classes of business and personal information. We agree with the Court of Appeals for the Third Circuit that the FOIA is purely a disclosure statute and affords Chrysler no private right of action to enjoin agency disclosure. But we cannot agree with that court's conclusion that this disclosure is "authorized by law" within the meaning of § 1905. Therefore, we vacate the Court of Appeals' judgment and remand so that it can consider [*286] whether the documents at issue in this case fall within the terms of § 1905.
As a party to numerous Government contracts, Chrysler is required to comply with [certain] Executive Orders . . . which charge the Secretary of Labor with ensuring that corporations that benefit from Government contracts provide equal employment opportunity regardless of race or sex. The United States Department of Labor's Office of Federal Contract Compliance Programs (OFCCP) has promulgated regulations which require Government contractors to furnish reports and other information about their affirmative-action programs and the general composition of their work forces.
The Defense Logistics Agency (DLA) (formerly the Defense Supply Agency) of the Department of Defense is the designated compliance agency responsible for monitoring Chrysler's employment practices. OFCCP regulations require that Chrysler make available to this agency written affirmative-action programs (AAP's) and annually submit Employer Information Reports, known as EEO-1 Reports. The agency may also conduct "compliance reviews" and "complaint investigations," which culminate in Compliance Review Reports (CRR's) and Complaint Investigation Reports (CIR's), respectively.(1) [*287]
Regulations promulgated by the Secretary of Labor provide for public disclosure of information from records of the OFCCP and its compliance agencies. Those regulations state that notwithstanding exemption from mandatory disclosure under the FOIA, 5 U. S. C.§ 552,
It is the voluntary disclosure contemplated by this regulation, over
and above that mandated by the FOIA, which is the gravamen of Chrysler's
complaint in this case.
We have decided a number of FOIA cases in the last few years. Although we [**1712] have not had to face squarely the question whether the FOIA ex proprio vigore forbids governmental agencies from disclosing certain classes of information to the public, we have in the course of at least one opinion intimated an answer.(3) We have, moreover, consistently recognized that the basic objective of the Act is disclosure.(4) [*291]
In contending that the FOIA bars disclosure of the requested equal employment opportunity information, Chrysler relies on the Act's nine exemptions and argues that they require an agency to withhold exempted material. In this case it relies specifically on Exemption 4:
"(4) trade secrets and commercial or financial information obtained from a person and privileged or confidential . . . ."
Chrysler contends that the nine exemptions in general, and Exemption 4 in particular, reflect a sensitivity to the privacy interests of private individuals and nongovernmental entities. That contention may be conceded without inexorably requiring the conclusion that the exemptions impose affirmative duties on an agency to withhold information sought.(5) In fact, that conclusion is not supported by the language, logic, or history of the Act.
The organization of the Act is straightforward. Subsection [*292] (a), 5 U. S. C. § 552 (a), places a general obligation on the agency to make information available to the public and sets out specific modes of disclosure for certain classes of information. Subsection (b), 5 U. S. C. § 552 (b), which lists the exemptions, simply states that the specified material is not subject to the disclosure obligations set out in subsection (a). By its terms, subsection (b) demarcates the agency's obligation to disclose; it does not foreclose disclosure.
That the FOIA is exclusively a disclosure statute is, perhaps, demonstrated most convincingly by examining its provision for judicial relief. Subsection (a)(4)(B) gives federal district courts "jurisdiction to enjoin the agency from withholding agency records and to order the production of any agency records improperly withheld from the complainant." 5 U. S. C. § 552 (a)(4)(B). That provision does not give the authority to bar disclosure, and thus fortifies our belief that Chrysler, and courts which have shared its view, have incorrectly interpreted the exemption provisions of the FOIA. The Act is an attempt to meet the demand for open government while preserving workable confidentiality in governmental decisionmaking.(6) Congress appreciated that, with the expanding sphere of governmental regulation and enterprise, much of the information within Government files has been submitted by private entities seeking Government contracts or responding to unconditional reporting obligations imposed by law. There was sentiment that Government agencies should have the latitude, in certain circumstances, to afford the confidentiality desired by these submitters. But the congressional concern [*293] was with the agency's need or preference for confidentiality; the FOIA by itself protects the submitters' interest in confidentiality only to the extent that this interest is endorsed by the agency collecting the information.
Enlarged access to governmental information undoubtedly cuts against the privacy concerns of nongovernmental entities, and as a matter of policy some balancing and accommodation may well be desirable. We simply hold here that Congress did not design the FOIA exemptions to be mandatory bars to disclosure.(7)
This conclusion is further supported by the legislative history. The FOIA was enacted out of dissatisfaction with § 3 of the [Administrative Procedure Act or "APA"], which had not resulted in as much disclosure by the agencies as Congress later thought desirable.(8) Statements in both the Senate and House Reports on the effect of the exemptions support the interpretation that the exemptions [*294] were only meant to permit the agency to withhold certain information, and were not meant to mandate nondisclosure. For example, the House Report states:
Chrysler contends, however, that even if its suit for injunctive relief cannot be based on the FOIA, such an action can be premised on the Trade Secrets Act, 18 U. S. C. § 1905. The Act provides:
The Court of Appeals held that § 1905 was not applicable to the agency disclosure at issue here because such disclosure was "authorized by law" within the meaning of the Act. The court found the source of that authorization to be the OFCCP regulations that DLA relied on in deciding to disclose information on the Hamtramck and Newark plants. Chrysler contends here that these agency regulations are not "law" within the meaning of § 1905.
It has been established in a variety of contexts that properly promulgated, substantive agency regulations have the "force and effect of law." This doctrine is so well established that agency regulations implementing federal statutes have been [*296] held to pre-empt state law under the Supremacy Clause. It would therefore take a clear showing of contrary legislative intent before the phrase "authorized by law" in § 1905 could be held to have a narrower ambit than the traditional understanding.
The origins of the Trade Secrets Act can be traced to Rev. Stat. § 3167, an Act which barred unauthorized disclosure of specified business information by Government revenueofficers. There is very little legislative history concerning the original bill, which was passed in 1864. It was re-enacted numerous times, with some modification, and remained part of the revenue laws until 1948. Congressional statements made at the time of these re-enactments indicate that Congress was primarily concerned with unauthorized disclosure of business information by feckless or corrupt revenue agents,(10) for [*297] in the early days of the Bureau of Internal Revenue, it was the field agents who had substantial contact with confidential financial information.(11)
[The Court reviewed the statute's later history and concluded as follows:]
We find nothing in the legislative history of § 1905 and its predecessors which lends support to Chrysler's contention that Congress intended the phrase "authorized by law," as used in § 1905, to have a special, limited meaning.
Nor do we find anything in the legislative history to support the respondents' suggestion that § 1905 does not address formal agency actioni. e., that it is essentially an "antileak" statute that does not bind the heads of governmental departments or agencies. That would require an expansive and unprecedented holding that any agency action directed or approved by an agency head is "authorized by law," regardless [*299] of the statutory authority for that action. . . . [S]uch a reading is difficult to reconcile with Congress' intent to consolidate [three earlier statutes, two of] which explicitly addressed ranking officials[.] It is also inconsistent with a settled understandingpreviously shared by the Department of Justicethat has been continually articulated and relied upon in Congress during the legislative efforts in the last three decades to increase public access to Government information.(12) Although the existence of this understanding [*300] is not by anymeans dispositive, it does shed some light on the intent of the enacting Congress. See Red Lion Broadcasting Co. v. FCC, 395 U.S. 367, 380-381 (1969) . . . [*301] In sum, we conclude that § 1905 does address formal agency action and that the appropriate inquiry is whether OFCCP's regulations provide the "[authorization] by law" required by the statute.
In order for a regulation to have the "force and effect of law," it must have certain substantive characteristics and be the product of certain procedural requisites. The central distinction among agency regulations found in the APA is that between "substantive rules" on the one hand and "interpretive rules, general statements of policy, or rules of agency organization, procedure, or practice" on the other.(13) A "substantive [*302] rule" is not defined in the APA, and other authoritative sources essentially offer definitions by negative inference.(14) But in Morton v. Ruiz, 415 U.S. 199 (1974), we noted a characteristic inherent in the concept of a "substantive rule." We described a substantive ruleor a "legislative-type rule,"as one "affecting individual rights and obligations." This characteristic is an important touchstone for distinguishing those rules that may be "binding" or have the "force of law."
That an agency regulation is "substantive," however, does not by itself give it the "force and effect of law." The legislative power of the United States is vested in the Congress, and the exercise of quasi-legislative authority by governmental departments and agencies must be rooted in a grant of such power by the Congress and subject to limitations which that body imposes. As this Court noted in Batterton v. Francis, 432 U.S. 416, 425 n. 9 (1977):
The regulations relied on by the respondents in this case as providing "[authorization] by law" within the meaning of § 1905 certainly affect individual rights and obligations; they govern the public's right to information in records obtained under Executive Order 11246 and the confidentiality rights of those who submit information to OFCCP and its compliance agencies. It is a much closer question, however, whether they are the product of a congressional grant of legislative authority.
In his published memorandum setting forth the disclosure regulations at issue in this case, the Secretary of Labor states that the authority upon which he relies in promulgating the regulations are § 201 of Executive Order 11246, as amended, and 29 C.F.R. § 70.71 (1978), which permits units in the Department of Labor to promulgate supplemental disclosure regulations consistent with 29 C.F.R. pt. 70 and the FOIA. Since materials that are exempt from disclosure under the FOIA are by virtue of Part II of this opinion outside the ambit of that Act, the Government cannot rely on the FOIA as congressional authorization for [*304] disclosure regulations that permit the release of information within the Act's nine exemptions.
Section 201 of Executive Order 11246 directs the Secretary of Labor to "adopt such rules and regulations and issue such orders as he deems necessary and appropriate to achieve the purposes thereof." But in order for such regulations to have the "force and effect of law," it is necessary to establish a nexus between the regulations and some delegation of the requisite legislative authority by Congress. The origins of the congressional authority for Executive Order 11246 are somewhat obscure and have been roundly debated by commentators and courts. The Order itself as amended establishes a program to eliminate employment discrimination by the Federal Government and by those who benefit from Government contracts. For purposes of this case, it is not necessary to decide whether Executive Order 11246 as amended is authorized by the Federal Property and Administrative Services Act of 1949, Titles VI [*305] and VII of the Civil Rights Act of 1964,the Equal Employment Opportunity [**1720] Act of 1972, or some more general notion that the Executive can impose reasonable contractual requirements [*306] in the exercise of its procurement authority. The pertinent inquiry is whether under any of the arguable statutory grants of authority the OFCCP disclosure regulations relied on by the respondents are reasonably within the contemplation of that grant of authority. We think that it is clear that when it enacted these statutes, Congress was not concerned with public disclosure of trade secrets or confidential business information, and, unless we were to hold that any federal statute that implies some authority to collect information must grant legislative authority to disclose that information to the public, it is simply not possible to find in these statutes a delegation of the disclosure authority asserted by the respondents here. [*307]
The relationship between any grant of legislative authority and the disclosure regulations becomes more remote when one examines § 201 of the Executive Order. It speaks in terms of rules and regulations "necessary and appropriate" to achieve the purposes of the Executive Order. Those purposes are an end to discrimination in employment by the Federal Government and those who deal with the Federal Government. One cannot readily pull from the logic and purposes of the Executive Order any concern with the public's access to information in Government files or the importance of protecting trade secrets or confidential business statistics.
The "purpose and scope" section of the disclosure regulations indicates two underlying rationales: OFCCP's general policy "to disclose information to the public," and its policy "to cooperate with other public agencies as well as private parties seeking to eliminate discrimination in employment." The respondents argue that "[the] purpose of the Executive Order is to combat discrimination in employment, and a disclosure policy designed to further this purpose is consistent with the Executive Order and an appropriate subject for regulation under its aegis." Were a grant of legislative authority as a basis for Executive Order 11246 more clearly identifiable, we might agree with the respondents that this "compatibility" gives the disclosure regulations the necessary legislative force. But the thread between these regulations and any grant of [*308] authority by the Congress is so strained that it would do violence to established principles of separation of powers to denominate these particular regulations "legislative" and credit them with the "binding effect of law."
This is not to say that any grant of legislative authority to a federal agency by Congress must be specific before regulations promulgated pursuant to it can be binding on courts in a manner akin to statutes. What is important is that the reviewing court reasonably be able to conclude that the grant of authority contemplates the regulations issued. Possibly the best illustration remains Mr. Justice Frankfurter's opinion for the Court in National Broadcasting Co. v. United States, 319 U.S. 190 (1943). There the Court rejected the argument that the Communications Act of 1934 did not give the Federal Communications Commission authority to issue regulations governing chain broadcasting beyond the specification of technical, engineering requirements. Before reaching that conclusion, however, the Court probed the language and logic of the Communications Act and its legislative history. Only after this careful parsing of authority did the Court find that the regulations had the force of law and were binding on the courts unless they were arbitrary or not promulgated pursuant to prescribed procedures.
The respondents argue, however, that even if these regulations do not have the force of law by virtue of Executive Order 11246, an explicit grant of legislative authority for such [*309] regulations can be found in 5 U. S. C. § 301, commonly referred to as the "housekeeping statute."(16) It provides:
Given this long and relatively uncontroversial history, and the terms of the statute itself, it seems to be simply a grant of authority to the agency to regulate its own affairs. What is clear from the legislative history of the 1958 amendment to § 301 is that this section was not intended to provide authority for limiting the scope of § 1905.(17) [*310]
The 1958 amendment to § 301 was the product of congressional concern that agencies were invoking § 301 as a source of authority to withhold information from the public. Congressman Moss sponsored an amendment that added the last sentence to § 301, which specifically states that this section "does not authorize withholding information from the public." The Senate Report accompanying the amendment stated:
This would suggest that regulations pursuant to § 301 could not provide the "[authorization] by law" required by § 1905. But there is more specific support for this position. During the debates on the 1958 amendment Congressman Moss assured the House that the amendment would "not affect the confidential status of information given to the Government and carefully detailed in title 18, United States Code, section 1905." 104 Cong. Rec. 6550 (1958).
The respondents argue that this last statement is of little significance, because it is only made with reference to the amendment. But that robs Congressman Moss' statement of any substantive import. If Congressman Moss thought that records within the terms of § 1905 could be released on the authority of a § 301 regulation, why was he (and presumably the House) concerned with whether the amendment affected § 1905? Under the respondents' interpretation, records released pursuant to § 301 are outside § 1905 by virtue of the first sentence of § 301.
The remarks of a single legislator, even the sponsor, are not controlling in analyzing legislative history. Congressman Moss' statement must be considered with the Reports of both Houses and the statements of other Congressmen, all of which refute the respondents' interpretation of the relationship between § 301 and § 1905.(18) Of greatest significance, however, [*312] is the "housekeeping" nature of § 301 itself. On the basis of this evidence of legislative intent, we agree with the Court of Appeals for the District of Columbia Circuit that "[section] 301 does not authorize regulations limiting the scope of section 1905." Charles River Park "A," Inc. v. Department of HUD, 171 U. S. App. D. C. 286, 293-294, 519 F.2d 935, 942-943 (1975).
There is also a procedural defect in the OFCCP disclosure regulations which precludes courts from affording them the force and effect of law. That defect is a lack of strict compliance with the APA. * * *
This disposition best comports with both the purposes underlying the APA and sound administrative practice. Here important interests are in conflict: the public's access to information in the Government's files and concerns about personal privacy and business confidentiality. The OFCCP's regulations attempt to strike a balance. In enacting the APA, Congress made a judgment that notions of fairness and informed administrative decisionmaking require that agency decisions be made only after affording interested persons notice and an opportunity to comment. With the consideration that is the necessary and intended consequence of such procedures, OFCCP might have decided that a different accommodation was more appropriate.
We reject, however, Chrysler's contention that the Trade Secrets Act affords a private right of action to enjoin disclosure in violation of the statute. In Cort v. Ash, 422 U.S. 66[, 79] (1975), we noted that this Court has rarely implied a private right of action under a criminal statute, and where it has done so "there was at least a statutory basis for inferring that a civil cause of action of some sort lay in favor of someone." Nothing in § 1905 prompts such an inference. Nor are other pertinent circumstances outlined in Cort present here. As our review of the legislative history of § 1905or [*317] lack of samemight suggest, there is no indication of legislative intent to create a private right of action. Most importantly, a private right of action under § 1905 is not "necessary to make effective the congressional purpose," J. I. Case Co. v. Borak, 377 U.S. 426, 433 (1964), for we find that review of DLA's decision to disclose Chrysler's employment data is available under the APA.(19)
While Chrysler may not avail itself of any violations of the provisions of § 1905 in a separate cause of action, any such violations may have a dispositive effect on the outcome of judicial review of agency action pursuant to § 10 of the APA. Section 10 (a) of the APA provides that "[a] person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action . . . , is entitled to judicial review thereof." 5 U. S. C. § 702. Two exceptions to this general rule of reviewability are set out in § 10. Review is not available where "statutes preclude judicial review" or where "agency action is committed to agency discretion by law." 5 U. S. C. § § 701 (a)(1), (2). In Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 410 (1971), the Court held that the latter exception applies "where ‘statutes are drawn in such broad terms that in a given case there is no law to apply,'" quoting S. Rep. No. 752, 79th Cong., 1st Sess., 26 (1945). Were we simply confronted with the authorization in 5 U. S. C. § 301 to prescribe regulations regarding "the custody, use, and preservation of [agency] records, papers, and property," it would be difficult to derive any standards limiting agency conduct which might constitute "law to apply." But our discussion in Part III demonstrates [*318] that § 1905 and any "[authorization] by law" contemplated by that section placesubstantive limits on agency action.(20) Therefore, we conclude that DLA's decision to disclose the Chrysler reports is reviewable agency action and Chrysler is a person "adversely affected or aggrieved" within the meaning of § 10 (a).
Both Chrysler and the respondents agree that there is APA review of DLA's decision. They disagree on the proper scope of review. Chrysler argues that there should be de novo review, while the respondents contend that such review is only available in extraordinary cases and this is not such a case.
The pertinent provisions of § 10(e) of the APA, 5 U. S. C. § 706, state that a reviewing court shall
Vacated and remanded.
MR. Justice Marshall, concurring.
I agree that respondents' proposed disclosure of information is not "authorized by law" within the meaning of 18 U. S. C. § 1905, and I therefore join the opinion of the Court. Because the number and complexity of the issues presented by this case will inevitably tend to obscure the dispositive conclusions, I wish to emphasize the essential basis for the decision today.
This case does not require us to determine whether, absent a congressional directive, federal agencies may reveal information obtained during the exercise of their functions. For whatever inherent power an agency has in this regard, § 1905 forbids agencies from divulging certain types of information unless disclosure is independently "authorized by law." Thus, the controlling issue in this case is whether the OFCCP disclosure [*320] regulations, 41 C.F.R. § § 60.40-1 to 60.40-4 (1978), provide the requisite degree of authorization for the agency's proposed release. The Court holds that they do not, because the regulations are not sanctioned directly or indirectly by federal legislation.(22) In imposing the authorization requirement of § 1905, Congress obviously meant to allow only those disclosures contemplated by congressional action. Otherwise, the agencies Congress intended to control could create their own exceptions to § 1905 simply by promulgating valid disclosure regulations. Finally, the Court holds that since § 10 (e) of the Administrative Procedure Act requires agency action to be "in accordance with law," 5 U. S. C. § 706 (2)(A), a reviewing court can prevent any disclosure that would violate § 1905.(23)
Our conclusion that disclosure pursuant to the OFCCP regulations is not "authorized by law" for purposes of § 1905, however, does not mean the regulations themselves are "in excess of statutory jurisdiction, authority, or limitations, or short of statutory right" for purposes of the Administrative Procedure Act. 5 U. S. C. § 706 (2)(C). As the Court recognizes, that inquiry involves very different considerations than those presented in the instant case. Accordingly, we do not question the general validity of these OFCCP regulations or any other regulations promulgated under § 201 of Executive Order No. 11246 . . . . Nor do we consider whether such an Executive Order must be founded on a legislative enactment. The [*321] Court's holding is only that the OFCCP regulations in issue here do not "authorize" disclosure within the meaning of § 1905.
Based on this understanding, I join the opinion of the Court.
1. [Court's footnote 4] The term "alphabet
soup" gained currency in the early days of the New Deal as a description
of the proliferation of new agencies such as WPA and PWA. The terminology
required to describe the present controversy suggests that the "alphabet
soup" of the New Deal era was, by comparison, a clear broth.
2. [Court's footnote 5] [41 C.F.R.]
§ 60-40.2 (a). The regulations also state that EEO-1 Reports "shall
be disclosed," § 60-40.4, and that AAP's "must be disclosed" if not within
limited exceptions. §§ 60-40.2 (b)(1), 60-40.3.
3. [Court's footnote 9] "Subsection
(b) of the Act creates nine exemptions from compelled disclosures. These
exemptions are explicitly made exclusive, 5 U. S. C. § 552 (c), and are
plainly intended to set up concrete, workable standards for determining
whether particular material may be withheld or must be disclosed."
EPA v. Mink, 410 U.S. 73, 79 (1973).(emphasis added).
4. [Court's footnote 10] We observed in Department of Air Force v. Rose, 425 U.S. 352, 361 (1976), that "disclosure, not secrecy, is the dominant objective of the Act." The legislative history is replete with references to Congress' desire to loosen the agency's grip on the data underlying governmental decisionmaking.
"Although the theory of an informed electorate is vital to the proper operation of a democracy, there is nowhere in our present law a statute which affirmatively provides for that information." S. Rep. No. 813, 89th Cong., 1st Sess., 3 (1965).
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7. [Court's footnote 14] It is informative
in this regard to compare the FOIA with the Privacy Act of 1974, 5 U.
S. C. § 552a. In the latter Act, Congress explicitly requires agencies
to withhold records about an individual from most third parties unless
the subject gives his permission. Even more telling is 49 U. S.
C. § 1357, a section which authorizes the Administrator of the FAA to
take antihijacking measures, including research and development of protection
8. [Court's footnote 15] Section 3
of the original APA provided that an agency should generally publish or
make available organizational data, general statements of policy, rules,
and final orders. Exception was made for matters "requiring secrecy
in the public interest" or "relating solely to the internal management
of an agency." This original version of § 3 was repealed with passage
of the FOIA. See EPA v. Mink, 410 U.S. 73 (1973).
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9. [Court's footnote 16] H. R. Rep.
No. 1497, 89th Cong., 2d Sess., 2, 5, 7 (1966) (emphasis added). See
also S. Rep. No. 813, 89th Cong., 1st Sess., 10 (1965). Congressman
Moss, the House sponsor of the FOIA, described the exemptions on the House
floor as indicating what documents "may be withheld." 112 Cong. Rec. 13641
10. [Court's footnote 22] See, e. g., 26 Cong. Rec. 6893 (1894) (Sen. Aldrich) (expressing concern that taxpayer's confidential information is "to be turned over to the tender mercies of poorly paid revenue agents"); id., at 6924 (Sen. Teller) (exposing records to the "idle curiosity of a revenue officer"). See also Cong. Globe, 38th Cong., 1st Sess., 2997 (1864) (Rep. Brown) (expressing concern that 1864 revenue provisions would allow "every little petty officer" to investigate the affairs of private citizens).
11. [Court's footnote 23] There was
virtually no Washington bureaucracy created by the Act of July 1, 1862,
ch. 119, 12 Stat. 432, the statute to which the present Internal Revenue
Service can be traced. Researchers report that during the Civil
War 85% of the operations of the Bureau of Internal Revenue were carried
out in the field"including the assessing and collection of taxes,
the handling of appeals, and punishment for frauds"and this balance
of responsibility was not generally upset until the 20th century. L.
Schmeckebier & F. Eble, The Bureau of Internal Revenue 8, 40-43
(1923). Agents had the power to enter any home or business establishment
to look for taxable property and examine books of accounts. Information
was collected and processed in the field. It is, therefore, not
surprising to find that congressional comments during this period focused
on potential abuses by agents in the field and not on breaches of confidentiality
by a Washington-based bureaucracy.
12. [Court's footnote 29] If we accepted
the respondents' position, 18 U. S. C. § 1905 would simply be irrelevant
to the issue of public access to agency information. The FOIA and
other such "access" legislation are concerned with formal agency actionto
what extent can an agency or department or, put differently, the head
of an agency or department withhold information contained within the governmental
unit's files. It is all but inconceivable that a Government employee
would withhold information which his superiors had directed him
to release; and these Acts are simply not addressed to disclosure
by a Government employee that is not sanctioned by the employing agency.
This is not to say that the actions of individual employees might
not be inconsistent with the access legislation. But such actions
are only inconsistent insofar as they are imputed to the agencies themselves.
Therefore, if § 1905 is not addressed to formal agency action–i.
e., action approved by the agency or department headthere should
have been no concern in Congress regarding the interrelationship of §
1905 and the access legislation, for they would then address totally different
types of disclosure.
Most recently, in its Report on the Government in the Sunshine Act, the House Committee on Government Operations observed:
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14. [Court's footnote 31] Neither
the House nor Senate Report attempted to expound on the distinction. In
prior cases, we have given some weight to the Attorney General's Manual
on the Administrative Procedure Act (1947), since the Justice Department
was heavily involved in the legislative process that resulted in the Act's
enactment in 1946. . . .
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17. [Court's footnote 40] This does
not mean, of course, that disclosure regulations promulgated on the basis
of § 301 are "in excess of statutory jurisdiction, authority, or limitations"
for purposes of the APA, 5 U. S. C. § 706 (2)(C). It simply means
that disclosure pursuant to them is not "authorized by law" within the
meaning of § 1905.
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18. [Court's footnote 42] Throughout
the floor debates references are made to 78 statutes that require the
withholding of information, and assurances are consistently given that
these statutes are not in any way affected by § 301. It is clear
from Congressman Moss' comments that § 1905 is one of those statutes.
There is also frequent reference to trade secrets as not being disclosable
and the confidentiality of that information as not being affected by §
301. * * *
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19. [Court's footnote 47] Jurisdiction
to review agency action under the APA is found in 28 U. S. C. § 1331.
See Califano v. Sanders, 430 U.S. 99 (1977). Chrysler
does not argue in this Court, as it did below, that private rights of
action are available under 42 U. S. C. § 2000e-8 (e) and 44 U. S. C. §
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21. [Court's footnote 49] Since the
Court of Appeals assumed for purposes of argument that the material in
question was within an exemption to the FOIA, that court found it unnecessary
expressly to decide that issue and it is open on remand. We, of
course, do not here attempt to determine the relative ambits of Exemption
4 and § 1905, or to determine whether § 1905 is an exempting statute within
the terms of the amended Exemption 3, 5 U. S. C. § 552 (b)(3). Although
there is a theoretical possibility that material might be outside Exemption
4 yet within the substantive provisions of § 1905, and that therefore
the FOIA might provide the necessary "[authorization] by law" for purposes
of § 1905, that possibility is at most of limited practical significance
in view of the similarity of language between Exemption 4 and the substantive
provisions of § 1905.
22. [Justice Marshall's footnote 1] That
the OFCCP regulations were not promulgated in strict compliance with the
Administrative Procedure Act is an independent reason why those
regulations do not satisfy the requirements of § 1905, although the agency
could rectify this shortcoming.
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23. [Justice Marshall's footnote 2] Thus,
the courts below must determine on remand whether § 1905 covers the types
of information respondents intended to disclose. Disclosure of those documents
not covered by § 1905 would, under the Court's holding, be "in accordance
with law." 5 U. S. C. § 706 (2)(A).
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