CHRYSLER CORP. v. BROWN, SECRETARY OF DEFENSE, ET AL.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
Argued November 8, 1978
Decided April 18, 1979
Petitioner, as a party to numerous Government contracts, was required to comply with Executive Orders 11246 and 11375, which charge the Secretary of Labor with ensuring that corporations that benefit from Government contracts provide equal employment opportunity regardless of race or sex. Regulations promulgated by the Department of Labor's Office of Federal Contract Compliance Programs (OFCCP) require Government contractors to furnish reports about their affirmative-action programs and the general composition of their work forces, and provide that notwithstanding exemption from mandatory disclosure under the Freedom of Information Act (FOIA), records obtained pursuant to Executive Order 11246 shall be made available for inspection if it is determined that the requested inspection furthers the public interest and does not impede agency functions, except in the case of records disclosure of which is prohibited by law. After the Department of Defense's Defense Logistics Agency (DLA), the designated compliance agency responsible for monitoring petitioner's employment practices, informed petitioner that third parties had made an FOIA request for disclosure of certain materials that had been furnished to the DLA by petitioner, petitioner objected to release of the materials. The DLA determined that the materials were subject to disclosure under the FOIA and OFCCP disclosure rules, and petitioner then filed a complaint in the Federal District Court seeking to enjoin release of the documents. Petitioner contended, inter alia, that disclosure was barred by the FOIA and was inconsistent with the Trade Secrets Act, 18 U.S.C. 1905, which imposes criminal sanctions on Government employees who disclose or make known, in any manner or to any extent "not authorized by law," certain classes of information submitted to a Government agency, including trade secrets and confidential statistical data. Finding jurisdiction to subject the disclosure decision to review under the Administrative Procedure Act (APA), the District Court held that certain of the requested information fell within Exemption 4 of the FOIA, relating to trade secrets and commercial or financial information; that whether the requested information may or must be withheld thus [441 U.S. 281, 282] depended on applicable agency regulations; and that here a regulation (29 CFR 70.21 (a) (1977) which states that no officer or employee of the Department of Labor is to violate 18 U.S.C. 1905, and which proscribes specified disclosures if "not authorized by law," required that the information be withheld. Both sides appealed, and the Court of Appeals vacated the District Court's judgment. While agreeing with the District Court that the FOIA does not compel withholding of information that falls within its exemptions, and that analysis must proceed under the APA, the Court of Appeals reached a different conclusion as to the interpretation of 29 CFR 70.21 (a). In the Court of Appeals' view, disclosures made pursuant to OFCCP disclosure regulations are "authorized by law" by virtue of those regulations.
REHNQUIST, J., delivered the opinion for a unanimous Court. MARSHALL, J., filed a concurring opinion, post, p. 319.
Burt A. Braverman argued the cause for petitioner. With him on the briefs was A. William Rolf.
Assistant Attorney General Babcock argued the cause for respondents. With her on the brief were Solicitor General McCree, Leonard Schaitman, and Paul Blankenstein. *
[ Footnote * ] Briefs of amici curiae urging reversal were filed by Paul L. Gomory for the Association for the Advancement of Invention and Innovation; by Joseph A. Keyes, Jr., for the Association of American Medical Colleges; by Robert L. Ackerly, Thomas L. Pattern, Kenneth W. Weinstein, Lawrence B. Kraus, and Stanley T. Kaleczyc for the Chamber of Commerce of the United States; by Michael S. Horne, Bruce D. Sokler, Stephen R. Mysliwiec, Robert E. Williams, and Douglas S. McDowell for the Equal [441 U.S. 281, 285] Employment Advisory Council; and by Leonard J. Theberge and Edward H. Dowd for the Scientists and Engineers for Secure Energy et al.
Charles E. Hill filed a brief for the Consumer Federation of America et al. as amici curiae urging affirmance.
Briefs of amici curiae were filed by Thomas L. Pfister for Hughes Aircraft Co.; by Richmond C. Coburn and Thomas E. Douglass for the National Security Industrial Ass.; and by George A. Sears and C. Douglas Floyd for Standard Oil Co. of California. [441 U.S. 281, 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, 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 [441 U.S. 281, 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 Executive Orders 11246 and 11375, which charge the Secretary of Labor's with ensuring that corporations that benefit from Government contracts provide equal employment opportunity regardless of race or sex. 1 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. 2
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. 3 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. 4 [441 U.S. 281, 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,
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 [441 U.S. 281, 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. Pursuant to this order, Chrysler was informed on July 1, 1975, that DLA had received a similar request for information about Chrysler's Hamtramck, Mich., plant. Chrysler amended its complaint and obtained a restraining order with regard to the Hamtramck, disclosure as well.
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. The District Court held that it had jurisdiction under 28 U.S.C. 1331 to subject the disclosure decision to review under the Administrative Procedure Act (APA). 5 U.S.C. 701-706. It conducted a trial de novo on all of Chrysler's claims; both sides presented extensive expert testimony during August 1975.
On April 20, 1976, the District Court issued its opinion. It held that certain of the requested information, the "manning" tables, fell within Exemption 4 of the FOIA. 6 The District Court reasoned from this holding that the tables may or must be withheld, depending on applicable agency regulations, and that here a governing regulation required that the information be withheld. Pursuant to 5 U.S.C. 301, the enabling statute which gives federal department heads control over department records, the Secretary of Labor has promulgated a regulation, 29 CFR 70.21 (a) (1978), stating that no officer or employee of the Department is to violate 18 U.S.C. 1905. That section imposes criminal sanctions on Government employees [441 U.S. 281, 289] who make unauthorized disclosure of certain classes of information submitted to a Government agency, including trade secrets and confidential statistical data. In essence, the District Court read 1905 as not merely a prohibition of unauthorized disclosure of sensitive information by Government employees, but as a restriction on official agency actions taken pursuant to promulgated regulations.
Both sides appealed, and the Court of Appeals for the Third Circuit vacated the District Court's judgment. Chrysler Corp. v. Schlesinger, 565 F.2d 1172 (1977). It agreed with the District Court that the FOIA does not compel withholding of information that falls within its nine exemptions. It also, like the District Court, rejected Chrysler's reliance on the confidentiality statutes, either because there was no implied private right of action to proceed under the statute, or because the statute, by its terms, was not applicable to the information at issue in this case. It agreed with the District Court that analysis must proceed under the APA. But it disagreed with that court's interpretation of 29 CFR 70.21 (a). By the terms of that regulation, the specified disclosures are only proscribed if "not authorized by law," the standard of 18 U.S.C. 1905. In the Court of Appeals' view, disclosures made pursuant to OFCCP disclosure regulations are "authorized by law" by virtue of those regulations. Therefore, it held that 29 CFR 70.21 (a) was inapplicable.
The Court of Appeals also disagreed with the District Court's view of the scope of review under the APA. It held that the District Court erred in conducting a de novo review; review should have been limited to the agency record. However, the Court of Appeals found that record inadequate in this case and directed that the District Court remand to the agency for supplementation. Because of a conflict in the Circuits 7 and the general importance of these "reverse-FOIA" [441 U.S. 281, 290] cases, we granted certiorari, 435 U.S. 914 , 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. 8 Although we 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. 9 We have, moreover, consistently recognized that the basic objective of the Act is disclosure. 10 [441 U.S. 281, 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:
The organization of the Act is straightforward. Subsection [441 U.S. 281, 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 decision-making. 12 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. 13 But the congressional concern [441 U.S. 281, 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. 14
This conclusion is further supported by the legislative history. The FOIA was enacted out of dissatisfaction with 3 of the APA, which had not resulted in as much disclosure by the agencies as Congress later thought desirable. 15 Statements in both the Senate and House Reports on the effect of the exemptions support the interpretation that the exemptions [441 U.S. 281, 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. 17 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." 18 This doctrine is so well established that agency regulations implementing federal statutes have been [441 U.S. 281, 296] held to pre-empt state law under the Supremacy Clause. 19 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 revenue officers. There is very little legislative history concerning the original bill, which was passed in 1864. 20 It was re-enacted numerous times, with some modification, and remained part of the revenue laws until 1948. 21 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, 22 for [441 U.S. 281, 297] in the early days of the Bureau of Internal Revenue, it was the field agents who had substantial contact with confidential financial information. 23
In 1948, Rev. Stat. 3167 was consolidated with two other statutes - involving the Tariff Commission and the Department of Commerce - to form the Trade Secrets Act. 24 The statute governing the Tariff Commission was very similar to Rev. Stat. 3167, and it explicitly bound members of the Commission as well as Commission employees. 25 The Commerce [441 U.S. 281, 298] Department statute embodied some differences in form. It was a mandate addressed to the Bureau of Foreign and Domestic Commerce and to its Director, but there was no reference to Bureau employees and it contained no criminal sanctions. 26 Unlike the other statutes, it also had no exception for disclosures "authorized by law." In its effort to "consolidat[e]" the three statutes, Congress enacted 1905 and the essentially borrowed the from of Rev. Stat. 3167 and the Tariff Commission statute. 27 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 [441 U.S. 281, 299] of the statutory authority for that action. As Attorney General Brownell recognized not long after 1905 was enacted, such a reading is difficult to reconcile with Congress' intent to consolidate the Tariff Commission and Commerce Department statutes, both of which explicitly addressed ranking officials, with Rev. Stat. 3167. 28 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. 29 Although the existence of this understanding [441 U.S. 281, 300] is not by any means 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); FHA [441 U.S. 281, 301] v. The Darlington, Inc., 358 U.S. 84, 90 (1958). In sum, we conclude that 1905 does address formal agency action and that the appropriate inquiry is whether OFCCP's regulations provide the "authoriz[ation] 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. 30 A "substantive [441 U.S. 281, 302] rule" is not defined in the APA, and other authoritative sources essentially offer definitions by negative inference. 31 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," id., at 236 - as one "affecting individual rights and obligations." Id., at 232. This characteristic is an important touchstone for distinguishing those rules that may be "binding" or have the "force of law." Id., at 235, 236.
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 "authoriz[ation] 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 CFR 70.71 (1978), which permits units in the Department of Labor to promulgate supplemental disclosure regulations consistent with 29 CFR pt. 70 and the FOIA. 38 Fed. Reg. 3192-3194 (1973). 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 [441 U.S. 281, 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. 33 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, 34 Titles VI [441 U.S. 281, 305] and VII of the Civil Rights Act of 1964, 35 the Equal Employment Opportunity Act of 1972, 36 or some more general notion that the Executive can impose reasonable contractual requirements [441 U.S. 281, 306] in the exercise of its procurement authority. 37 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. 38 [441 U.S. 281, 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." 41 CFR 60-40.1 (1978). The respondents argue that "[t]he 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." Brief for Respondents 48. 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 [441 U.S. 281, 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.
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. 40 [441 U.S. 281, 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 "authoriz[ation] 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. 42 Of greatest significance, however, [441 U.S. 281, 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 "[s]ection 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. Recently we have had occasion to examine the requirements of the APA in the context of "legislative" or "substantive" rulemaking. In Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council, Inc., 435 U.S. 519 (1978), we held that courts could only in "extraordinary circumstances" impose procedural requirements on an agency beyond those specified in the APA. It is within [441 U.S. 281, 313] an agency's discretion to afford parties more procedure, but it is not the province of the courts to do so. In Vermont Yankee, we recognized that the APA is "`a formula upon which opposing social and political forces have come to rest.'" Id., at 547 (quoting Wong Yang Sung v. McGrath, 339 U.S. 33, 40 (1950)). Courts upset that balance when they override informed choice of procedures and impose obligations not required by the APA. By the same token, courts are charged with maintaining the balance: ensuring that agencies comply with the "outline of minimum essential rights and procedures" set out in the APA. H. R. Rep. No. 1980, 79th Cong., 2d Sess., 16 (1946); see Vermont Yankee Nuclear Power Corp., supra, at 549 n. 21. Certainly regulations subject to the APA cannot be afforded the "force and effect of law" if not promulgated pursuant to the statutory procedural minimum found in that Act. 43
Section 4 of the APA, 5 U.S.C. 553, specifies that an agency shall afford interested persons general notice of proposed rulemaking and an opportunity to comment before a substantive rule is promulgated. 44 "Interpretive rules, general [441 U.S. 281, 314] statements of policy or rules of agency organization, procedure or practice" are exempt from these requirements. When the Secretary of Labor published the regulations pertinent in this case, he stated:
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 (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." 46 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 [441 U.S. 281, 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. 47
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 [441 U.S. 281, 318] that 1905 and any "authoriz[ation] by law" contemplated by that section place substantive limits on agency action. 48 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
[ Footnote 2 ] 41 CFR 60-1.3, 60-1.7 (1978).
[ Footnote 3 ] For convenience all references will be to DLA.
[ Footnote 4 ] 41 CFR 60-1.20, 60-1.24 (1978). The term "alphabet soup" gained currency in the early days of the New Deal as a description of the proliferation [441 U.S. 281, 287] 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.
[ Footnote 5 ] 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.
[ Footnote 6 ] Manning tables are lists of job titles and of the number of people who perform each job.
[ Footnote 7 ] Compare Westinghouse Electric Corp. v. Schlesinger, 542 F.2d 1190 (CA4 1976), cert. denied, 431 U.S. 924 (1977), with Sears, Roebuck & Co. [441 U.S. 281, 290] v. Eckerd, 575 F.2d 1197 (CA7 1978); General Dynamics Corp. v. Marshall, 572 F.2d 1211 (CA8 1978); Pennzoil Co. v. FPC, 534 F.2d 627 (CA5 1976); Charles River Park "A," Inc. v. Department of HUD, 171 U.S. App. D.C. 286, 519 F.2d 935 (1975).
[ Footnote 8 ] NLRB v. Robbins Tire & Rubber Co., 437 U.S. 214 (1978); Department of Air Force v. Rose, 425 U.S. 352 (1976); FAA Administrator v. Robertson, 422 U.S. 255 (1975); NLRB v. Sears, Roebuck & Co., 421 U.S. 132 (1975); Renegotiation Bd. v. Grumman Aircraft Engineering Corp., 421 U.S. 168 (1975); Renegotiation Bd. v. Bannercraft Clothing Co., 415 U.S. 1 (1974); EPA v. Mink, 410 U.S. 73 (1973).
[ 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, supra, at 79 (emphasis added).
[ Footnote 10 ] We observed in Department of Air Force v. Rose, supra, at 361, 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.
[ Footnote 11 ] See, e. g., H. R. Rep. No. 1497, supra, at 10 (emphasis added; footnote omitted):
[ Footnote 12 ] See S. Rep. No. 813, supra, at 3:
[ Footnote 13 ] Id., at 9; n. 11, supra.
[ 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.
[ 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).
[ 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).
[ Footnote 17 ] 41 CFR 60.40-1 to 60.40-4 (1978).
[ Footnote 18 ] E. g., Batterton v. Francis, 432 U.S. 416, 425 n. 9 (1977); Foti v. INS, 375 U.S. 217, 223 (1963); United States v. Mersky, 361 U.S. 431, 437 -438 (1960); Atchison, T. & S. F. R. Co. v. Scarlett, 300 U.S. 471, 474 (1937).
[ Footnote 20 ] Revenue Act of 1864, 38, 13 Stat. 238.
[ Footnote 21 ] The last version was codified as 18 U.S.C. 216 (1940 ed.):
[ Footnote 22 ] See, e. g., 26 Cong. Rec. 6893 (1894) (Sen. Aldrich) (expressing [441 U.S. 281, 297] 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).
[ 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.
[ Footnote 24 ] See H. R. Rep. No. 304, 80th Cong., 1st Sess., A127-A128 (1947).
[ Footnote 25 ] The Tariff Commission statute, last codified as 19 U.S.C. 1335 (1940 ed.), provided:
[ Footnote 26 ] 15 U.S.C. 176a (1940 ed.):
[ Footnote 27 ] H. R. Rep. No. 304, supra n. 24, at A127.
[ Footnote 28 ] In a December 1, 1953, opinion, the Attorney General advised the Secretary of the Treasury that he should regard himself as bound by 1905. The Attorney General noted:
[ 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 [441 U.S. 281, 300] 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. See infra, at 310-312. 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:
Most recently, in its Report on the Government in the Sunshine Act, the House Committee on Government Operations observed:
[ Footnote 30 ] 5 U.S.C. 553 (b), (d).
[ 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. See Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council, Inc., 435 U.S. 519, 546 (1978); Power Reactor Co. v. Electricians, 367 U.S. 396, 408 (1961); United States v. Zucca, 351 U.S. 91, 96 (1956).
The Manual refers to substantive rules as rules that "implement" the statute. "Such rules have the force and effect of law." Manual, supra, at 30 n. 3. 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." Ibid. 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." Ibid. See also Final Report of Attorney General's Committee on Administrative Procedure 27 (1941).
[ Footnote 32 ] Quoting Attorney General's Manual on the Administrative Procedure Act, supra, at 30 n. 3.
[ Footnote 33 ] See, e. g., Contractors Assn. of Eastern Pa. v. Secretary of Labor, 442 F.2d 159 (CA3), cert. denied, 404 U.S. 854 (1971); Hearings before the Subcommittee on Separation of Powers of the Senate Committee on the Judiciary on the Philadelphia Plan and S. 931, 91st Cong., 1st Sess. (1969); Jones, The Bugaboo of Employment Quotas, 1970 Wis. L. Rev. 341; Leiken, Preferential Treatment in the Skilled Building Trades: An Analysis of the Philadelphia Plan, 56 Cornell L. Rev. 84 (1970); Comment, The Philadelphia Plan: A Study in the Dynamics of Executive Power, 39 U. Chi. L. Rev. 723 (1972); Note, Executive Order 11246: Anti-Discrimination Obligations in Government Contracts, 44 N. Y. U. L. Rev. 590 (1969).
The Executive Order itself merely states that it is promulgated "[u]nder and by virtue of the authority vested in [the] President of the United States by the Constitution and statutes of the United States." 3 CFR 339 (1964-1965 Comp.).
[ Footnote 34 ] 63 Stat. 377, as amended, 40 U.S.C. 471 et seq. The Act as amended is prefaced with the following declaration of policy:
Lower courts have suggested that 486 (a) was the authority for predecessors of Executive Order 11246. Farmer v. Philadelphia Electric Co., 329 F.2d 3 (CA3 1964); Farkas v. Texas Instrument, Inc., 375 F.2d 629 (CA5), cert. denied, 389 U.S. 977 (1967). But as the Third Circuit noted in Contractors Assn. of Eastern Pa. v. Secretary of Labor, supra, at 167, these suggestions were dicta and made without any analysis of the nexus between the Federal Property and Administrative Services Act and the Executive Orders. It went on to hold, however, that 486 (a) was authority for at least some aspects of Executive Order 11246 on the ground that "it is in the interest of the United States in all procurement to see that its suppliers are not over the long run increasing its costs and delaying its programs by excluding from the labor pool available minority workmen." 442 F.2d, at 170.
[ Footnote 35 ] 42 U.S.C. 2000d to 2000d-4, 2000e to 2000e-17. Significantly, the question has usually been put in terms of whether Executive Order 11246 is inconsistent with these titles of the Civil Rights Act of 1964. See, e. g., Contractors Assn. of Eastern Pa. v. Secretary of Labor, supra, at 171-174.
Title VI grants federal agencies that are "empowered to extend Federal financial assistance to any program or activity, by way of grant, loan, or contract," the authority to promulgate rules "which shall be consistent with achievement of the objectives of the statute authorizing the financial assistance in connection with which the action is taken." Such rules must be approved by the President, and their enforcement is subject to congressional review. "In the case of any action terminating, or refusing to [441 U.S. 281, 306] grant or continue, assistance because of failure to comply with a requirement imposed pursuant to this section, the head of the Federal department or agency shall file with the committees of the House and Senate having legislative jurisdiction over the program or activity involved a full written report of the circumstances and the grounds for such action." 602 of the Civil Rights Act of 1964, 78 Stat. 252, 42 U.S.C. 2000d-1. Executive Order 11246 contains no provision for congressional review, and therefore is not promulgated pursuant to 602. Cf. Exec. Order No. 11247, 3 CFR 348 (1964-1965 Comp.). Titles VI and VII contain no other express substantive delegation to the President.
[ Footnote 36 ] This is an argument that Congress ratified Executive Order 11246 as amended, when it rejected a series of amendments to the Equal Employment Opportunity Act that were designed to cut back on affirmative-action efforts under the Executive Order.
[ Footnote 37 ] See Farkas v. Texas Instrument, Inc., supra; Farmer v. Philadelphia Electric Co., supra; cf. Perkins v. Lukens Steel Co., 310 U.S. 113 (1940); Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 637 (1952) (Jackson, J., concurring).
[ Footnote 38 ] The respondents cite Jones v. Rath Packing Co., 430 U.S. 519, 536 (1977), for the proposition that "it has long been acknowledged that administrative regulations consistent with the agencies' substantive statutes have the force and effect of law." Brief for Respondents 38, and n. 24. The legislative delegation in that case, however, was quite explicit. The issue was whether state regulation of the labeling of meats and flour was pre-empted by the Federal Meat Inspection Act (FMIA), the Federal [441 U.S. 281, 307] Food, Drug, and Cosmetic Act (FDCA), and the Fair Packaging and Labeling Act. The FMIA provides that meat or a meat product is misbranded
There is a similar provision in the FDCA.
[ Footnote 39 ] See H. R. Rep. No. 1461, 85th Cong., 2d Sess., 1 (1958):
[ 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.
[ Footnote 41 ] The House Committee on Government Operations cited approvingly an observation by legal experts that
[ 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. E. g., 104 Cong. Rec. 6548 (Rep. Brown), 6549-6550 (Rep. Moss) (1958). It is clear from Congressman Moss' comments that 1905 is one of those statutes. 104 Cong. Rec. 6549-6550 (1958). There is also frequent reference to trade secrets as not being disclosable and the confidentiality of that information as not being affected by 301. H. R. Rep. No. 1461, 85th Cong., 2d Sess., 2 (1958); 104 Cong. Rec. 6558 (Rep. Fascell), 6564 (Rep. Wright) (1958). The following exchange between Congressmen Meader and Moss is also instructive.
[ Footnote 45 ] The regulations at issue in Jones v. Rath Packing Co., see n. 38, supra, were the product of notice of proposed rulemaking and comment. 32 Fed. Reg. 10729 (1967); 35 Fed. Reg. 15552 (1970).
We also note that the respondents' reliance on FCC v. Schreiber, 381 U.S. 279 (1965), is misplaced. In that case the Court held that a FCC rule - that investigatory proceedings would be public unless a hearing examiner found that "the public interest, the proper dispatch of the business . . ., or the ends of justice" would be served by closed sessions - was consistent with the pertinent congressional grant of authority and not arbitrary or unreasonable. This Court held that the District Court impermissibly invaded the province of the agency when it imposed its own notions of proper procedures. Cf. Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council, Inc., 435 U.S. 519 (1978). There was no question in the case regarding the applicability of 1905. Moreover, the respondents had made a broad request that "all testimony and [441 U.S. 281, 316] documents to be elicited from them . . . should be received in camera." 381 U.S., at 295 (emphasis in original). The Court held that when specific information was requested that might actually injure Schreiber's firm competitively, "there would be ample opportunity to request that it be received in confidence, and to seek judicial protection if the request were denied." Id., at 296.
[ Footnote 46 ] 422 U.S., at 79 , citing Wyandotte Transportation Co. v. United States, 389 U.S. 191 (1967); J. I. Case Co. v. Borak, 377 U.S. 426 (1964); Texas & Pacific R. Co. v. Rigsby, 241 U.S. 33 (1916).
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 (c) and 44 U.S.C. 3508.
[ Footnote 48 ] By regulation, the Secretary of Labor also has imposed the standards of 1905 on OFCCP and its compliance agencies. 29 CFR 70.21 (1978).
[ 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. 522 (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 "authoriz[ation] 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.
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 [441 U.S. 281, 320] regulations, 41 CFR 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. 1 In imposing the authorization requirement of 1905, Congress obviously meant to allow only those disclosures contemplated by congressional action. Ante, at 298-312. 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. 2
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, ante, at 309 n. 40, 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, 3 CFR 340 (1964-1965 Comp.). Nor do we consider whether such an Executive Order must be founded on a legislative enactment. The [441 U.S. 281, 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.
[ Footnote 1 ] That the OFCCP regulations were not promulgated in strict compliance with the Administrative Procedure Act, ante, at 312-316, is an independent reason why those regulations do not satisfy the requirements of 1905, although the agency could rectify this shortcoming.
[ 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). [441 U.S. 281, 322]