FALL 2010

Trade Secrets


Course No. 9200-704 (& 804)-801

ID No. 85737 & 85736

Time:  W 6:30 - 9:30 p.m.
Room:  W-215
Professor Jay Dratler, Jr.
Room Across from 231D (IP Alcove)
Home: 330-835-4537
Copyright © 2000, 2002, 2003, 2006, 2008, 2010   Jay Dratler, Jr.   For permission, see CMI.

Chrysler Corp. v. Brown

441 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,
    "records obtained or generated pursuant to Executive Order 11246 (as amended) . . . shall be made available for inspection and copying . . . if it is determined that the requested inspection or copying furthers the public interest and does not impede any of the functions of the [OFCCP] or the Compliance Agencies except in the case of records disclosure of which is prohibited by law."(2)

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.

This controversy began on May 14, 1975, when the DLA informed Chrysler that third parties had made an FOIA request for disclosure of the 1974 AAP for Chrysler's Newark, Del., assembly plant and an October 1974 CIR for the same facility.  Nine days later, Chrysler objected to release of the requested information, relying on OFCCP's disclosure regulations and on exemptions to the FOIA.  Chrysler also requested a copy of the CIR, since it had never seen it.  DLA responded the following week that it had determined that the requested material was subject to disclosure under the FOIA and the OFCCP disclosure rules, and that both documents would be released five days later.

On the day the documents were to be released, Chrysler filed a complaint in the United States District Court for Delaware [*288] seeking to enjoin release of the Newark documents.  The District Court granted a temporary restraining order barring disclosure of the Newark documents and requiring that DLA give five days' notice to Chrysler before releasing any similar documents.  * * *

Chrysler made three arguments in support of its prayer for an injunction: that disclosure was barred by the FOIA; that it was inconsistent with 18 U. S. C. § 1905, 42 U. S. C. § 2000e-8 (e), and 44 U. S. C. § 3508, which for ease of reference will be referred to as the "confidentiality statutes"; and finally that disclosure was an abuse of agency discretion insofar as it conflicted with OFCCP rules.

* * * [*289] * * *
    [The district court had held that part of the requested information–so-called "manning" tables of job titles and the number of people who perform each job—fell within Exemption 4 to the FOIA and were protected from disclosure under a Department of Labor regulation designed to enforce the Trade Secrets Act.  The Third Circuit reversed, holding that the tables' disclosure was "authorized by law," within the meaning of that phrase in the Trade Secrets Act, because of the OFCCP rule requiring their disclosure.]
Because of a conflict in the Circuits and the general importance of these "reverse-FOIA" [*290] cases, we granted certiorari and now vacate the judgment of the Third Circuit and remand for further proceedings.


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:
    "(b) [FOIA] does not apply to matters that are—
    * * *

    "(4) trade secrets and commercial or financial information obtained from a person and privileged or confidential . . . ."
5 U. S. C. § 552 (b)(4).

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:
    "[The FOIA] sets up workable standards for the categories of records which may be exempt from public disclosure . . . ."
    ". . . There may be legitimate reasons for nondisclosure and [the FOIA] is designed to permit nondisclosure in such cases."
    "[The FOIA] lists in a later subsection the specific categories of information which may be exempted from disclosure."(9)
We therefore conclude that Congress did not limit an agency's discretion to disclose information when it enacted the FOIA.  It necessarily follows that the Act does not afford Chrysler any right to enjoin agency disclosure.


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:
    "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 [*295] department or agency or officer or employee thereof, which information concerns or relates to the trade secrets, processes, operations, style of work, or apparatus, or to the identity, confidential statistical data, amount or source of any income, profits, losses, or expenditures of any person, firm, partnership, corporation, or association; or permits any income return or copy thereof or any book containing any abstract or particulars thereof to be seen or examined by any person except as provided by law; shall be fined not more than $ 1,000, or imprisoned not more than one year, or both; and shall be removed from office or employment."
There are necessarily two parts to Chrysler's argument: that § 1905 is applicable to the type of disclosure threatened in this case, and that it affords Chrysler a private right of action to obtain injunctive relief.


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:]

* * *  [*298 ] * * *

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 action—i. 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 understanding—previously shared by the Department of Justice—that 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 rule—or 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):
    "Legislative, or substantive, regulations are ‘issued by an agency pursuant to statutory authority and . . . implement [*303] the statute, as, for example, the proxy rules issued by the Securities and Exchange Commission . . . .  Such rules have the force and effect of law.'"(15)
Likewise the promulgation of these regulations must conform with any procedural requirements imposed by Congress.  For agency discretion is limited not only by substantive, statutory grants of authority, but also by the procedural requirements which "assure fairness and mature consideration of rules of general application."  NLRB v. Wyman-Gordon Co., 394 U.S. 759, 764 (1969).  The pertinent procedural limitations in this case are those found in the APA.  

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.
    "Our duty is at an end when we find that the action of the Commission was based upon findings supported by evidence, and was made pursuant to authority granted by Congress.  It is not for us to say that the ‘public interest' will be furthered or retarded by the Chain Broadcasting Regulations. The responsibility belongs to the Congress for the grant of valid legislative authority and to the Commission for its exercise."
Id., at 224.

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:
    "The head of an Executive department or military department may prescribe regulations for the government of his department, the conduct of its employees, the distribution and performance of its business, and the custody, use, and preservation of its records, papers, and property.  This section does not authorize withholding information from the public or limiting the availability of records to the public."
The antecedents of § 301 go back to the beginning of the Republic, when statutes were enacted to give heads of early Government departments authority to govern internal departmental affairs.  Those laws were consolidated into one statute in 1874 and the current version of the statute was enacted in 1958.

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:
    "Nothing in the legislative history of [§ 301] shows that Congress intended this statute to be a grant of authority to the heads of the executive departments to withhold information from the public or to limit the availability of records to the public."
S. Rep. No. 1621, 85th Cong., 2d Sess., 2 (1958).  The logical corollary to this observation is that there is nothing in the legislative history of § 301 to indicate it is a substantive grant of legislative power to promulgate rules authorizing the release of trade secrets or confidential business information.  It is indeed a "housekeeping statute," authorizing what the APA terms "rules of agency organization, procedure or practice" as opposed to "substantive rules." [*311]

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.  * * *

* * * [*315] * * *
    [The Court here describes how the regulations in question were issued as interpretive guidelines on policies and procedures, without the opportunity for public comment that the APA requires for substantive rules.  It concluded as follows:]
An interpretative regulation or general statement [*316] of agency policy cannot be the "[authorization] by law" required by § 1905.

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 § 1905—or [*317] lack of same—might 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
    "(2) hold unlawful and set aside agency action, findings, and conclusions found to be—
      "(A)  arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; [or]

    * * *
      "(F)  unwarranted by the facts to the extent that the facts are subject to trial de novo by the reviewing court."
For the reasons previously stated, we believe any disclosure that violates § 1905 is "not in accordance with law" within the meaning of 5 U. S. C. § 706 (2)(A).  De novo review by the District Court is ordinarily not necessary to decide whether a contemplated disclosure runs afoul of § 1905.  The District Court in this case concluded that disclosure of some of Chrysler's documents was barred by § 1905, but the Court of Appeals did not reach the issue.  We shall therefore vacate the Court of Appeals' judgment and remand for further proceedings consistent with this opinion in order that the Court [*319] of Appeals may consider whether the contemplated disclosures would violate the prohibition of § 1905.(21)  Since the decision regarding this substantive issue—the scope of § 1905—will necessarily have some effect on the proper form of judicial review pursuant to § 706 (2), we think it unnecessary, and therefore unwise, at the present stage of this case for us to express any additional views on that issue.

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.

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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.

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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.

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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).

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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.

    "A democratic society requires an informed, intelligent electorate, and the intelligence of the electorate varies as the quantity and quality of its information varies. . . .
    "[The FOIA] provides the necessary machinery to assure the availability of Government information necessary to an informed electorate."
H. R. Rep. No. 1497, 89th Cong., 2d Sess., 12 (1966).

"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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5.   [Court's footnote 11]  See, e. g., H. R. Rep. No. 1497, supra, at 10 (emphasis added; footnote omitted):

    "[Exemption 4] would assure the confidentiality of information obtained by the Government through questionnaires or through material submitted and disclosures made in procedures such as the mediation of labor-management controversies.  It exempts such material if it would not customarily be made public by the person from whom it was obtained by the Government. . . .  It would . . . include information which is given to an agency in confidence, since a citizen must be able to confide in his Government.  Moreover, where the Government has obligated itself in good faith not to disclose documents or information which it receives, it should be able to honor such obligations."
The italicized passage is obviously consistent with Exemption 4's being an exception to the disclosure mandate of the FOIA and not a limitation on agency discretion.

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6.   [Court's footnote 12]  See S. Rep. No. 813, supra, at 3:

    "It is not an easy task to balance the opposing interests, but it is not an impossible one either.  It is not necessary to conclude that to protect one of the interests, the other must, of necessity, either be abrogated or substantially subordinated.  Success lies in providing a workable formula which encompasses, balances, and protects all interests, yet places emphasis on the fullest responsible disclosure."
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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 devices.

    "Notwithstanding [the FOIA], the Administrator shall prescribe such regulations as he may deem necessary to prohibit disclosure of any information obtained or developed in the conduct of research and development activities under this subsection if, in the opinion of the Administrator, the disclosure of such information—
* * *
      "(B) would reveal trade secrets or privileged or confidential commercial or financial information obtained from any person . . . ."  § 1357 (d)(2)(B).
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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 (1966).

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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).

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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.

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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 action—to 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 head—there 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.

In fact, the legislative history of all the significant access legislation of the last 20 years evinces a concern with this relationship and a concomitant universal assumption that § 1905 embraces formal agency action.  Congress was assured that the 1958 amendment to 5 U. S. C. § 301, the housekeeping statute that affords department heads custodial responsibility for department records, would not circumscribe the confidentiality mandated by § 1905.  The 1958 amendment simply clarified that § 301 itself was not substantive authority to withhold information.  Also in 1958 the Subcommittee on Constitutional Rights of the Senate Committee on the Judiciary conducted hearings on the power of the President to withhold information from Congress.  As part of the investigative effort, a list was compiled of all statutes restricting disclosure of Government information.  Section 1905 was listed among them.  Hearings before the Subcommittee on Constitutional Rights of the Senate Committee on the Judiciary on S. 921, 85th Cong., 2d Sess., pt. 2, p. 986 (1958).  Two years later, the House Committee on Government Operations conducted a study on statutory authorities restricting or requiring the release of information under the control of executive departments or independent agencies, and again prominent among the statutes "affecting the availability of information to the public" was 18 U. S. C. § 1905.  House Committee on Government Operations, Federal Statutes on the Availability of Information 262 (Comm. Print. 1960) (§ 1905 denominated as statute prohibiting the disclosure of certain information).

In FAA Administrator v. Robertson, 422 U.S., at 264-265, we recognized the importance of these lists in Congress' later deliberations concerning the FOIA, particularly in the consideration of the original Exemption 3.  That Exemption excepted from the operation of the FOIA matters "specifically exempted from disclosure by statute."  As we noted in Robertson:

    "When the House Committee on Government Operations focused on Exemption 3, it took note that there are ‘nearly 100 statutes or parts of statutes which restrict public access to specific Government records. These would not be modified by the public records provisions of [the FOIA].' H. R. Rep. No. 1497, 89th Cong., 2d Sess., 10 (1966).  (Emphasis added.)" Id., at 265.
In determining that the statute at issue in Robertson, 49 U. S. C. § 1504, was within Exemption 3, we observed that the statute was on these prior lists and that the Civil Aeronautics Board had brought the statute to the attention of both the House and Senate Committees as an exempting statute during the hearings on the FOIA.  In fact, during those hearings 18 U. S. C. § 1905 was the most frequently cited restriction on agency or department disclosure of information.  Hearings before the Subcommittee of the House Committee on Government Operations on H. R. 5012 et al., 89th Cong., 1st Sess., 283 (1965) (cited by 28 agencies as authority for withholding information).  Among those citing the statute was the Department of Justice. Id., at 386 ("commercial information received or assembled in connection with departmental functions must be withheld pursuant to these requirements").  See also id., at 20 (colloquy between Rep. Moss and Asst. Atty. Gen. Schlei); Attorney General's Memorandum on the Public Information Section of the Administrative Procedure Act 31-32 (June 1967) (18 U. S. C. § 1905 among the "nearly 100 statutes" mentioned in the House Report).

Most recently, in its Report on the Government in the Sunshine Act, the House Committee on Government Operations observed:
    "[The] Trade Secrets Act, 18 U. S. C. § 1905, which relates only to the disclosure of information where disclosure is ‘not authorized by law,' would not permit the withholding of information otherwise required to be disclosed by the Freedom of Information Act, since the disclosure is there authorized by law.  Thus, for example, if material did not come within the broad trade secrets exemption contained in the Freedom of Information Act, section 1905 would not justify withholding; on the other hand, if material is within the trade secrets exemption of the Freedom of Information Act and therefore subject to disclosure if the agency determines that disclosure is in the public interest, section 1905 must be considered to ascertain whether the agency is forbidden from disclosing the information."  H. R. Rep. No. 94-880, pt. 1, p. 23 (1976).
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13.   [Court's footnote 30]  5 U. S. C. § § 553 (b), (d).

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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. . . .

The Manual refers to substantive rules as rules that "implement" the statute.  "Such rules have the force and effect of law."  In contrast it suggests that "interpretive rules" and "general statements of policy" do not have the force and effect of law.  Interpretive rules are "issued by an agency to advise the public of the agency's construction of the statutes and rules which it administers."  General statements of policy are "statements issued by an agency to advise the public prospectively of the manner in which the agency proposes to exercise a discretionary power."  See also Final Report of Attorney General's Committee on Administrative Procedure 27 (1941).

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15.   [Court's footnote 32]  Quoting Attorney General's Manual on the Administrative Procedure Act, supra, at 30 n. 3.

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16.   [Court's footnote 39]  See H. R. Rep. No. 1461, 85th Cong., 2d Sess., 1 (1958):

    "The law has been called an office ‘housekeeping' statute, enacted to help General Washington get his administration underway by spelling out the authority for executive officials to set up offices and file Government documents.  The documents involved are papers pertaining to the day-to-day business of Government which are not restricted under other specific laws nor classified as military information or secrets of state."
The Secretary of Labor did not cite this statute as authority for the OFCCP disclosure regulations.

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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. § 3508.

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20.   [Court's footnote 48]  By regulation, the Secretary of Labor also has imposed the standards of § 1905 on OFCCP and its compliance agencies.  29 C.F.R. § 70.21 (1978).

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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.

    [Note:  As it read then and now reads, Exemption 3 covered "matters that are . . . (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) establishes particular criteria for withholding or refers to particular types of matters to be withheld[.]"]
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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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