UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
filed as amended october 18 1977.: September 26, 1977.
JAMES A. SCHLESINGER, SECRETARY UNITED STATES DEPARTMENT OF DEFENSE; LT. GEN. WALLACE ROBINSON, DIRECTOR, DEFENSE SUPPLY AGENCY; PHILIP J. DAVIS, DIRECTOR, OFFICE OF FEDERAL CONTRACT COMPLIANCE; AND JOHN DUNLOP, SECRETARY UNITED STATES DEPARTMENT OF LABOR; CHRYSLER CORPORATION, APPELLANT IN NO. 76-1970; JAMES A. SCHLESINGER, SECRETARY UNITED STATES DEPARTMENT OF DEFENSE; LT. GEN. WALLACE ROBINSON, DIRECTOR, DEFENSE SUPPLY AGENCY; PHILIP J. DAVIS, DIRECTOR, OFFICE OF FEDERAL CONTRACT COMPLIANCE; AND JOHN DUNLOP, SECRETARY UNITED STATES DEPARTMENT OF LABOR, APPELLANTS IN NO. 76-2238; (D.C. CIVIL ACTION NO. 75-159)
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE
Before VAN DUSEN, ADAMS and GIBBONS, Circuit Judges
GIBBONS, Circuit Judge
Plaintiff, Chrysler Corporation (Chrysler), appeals and defendants, federal government officials,*fn1 cross-appeal, from a final judgment of the district court in an action for injunctive and declaratory relief aimed at preventing public disclosure of certain documents furnished by Chrysler to federal governmental agencies. The action was originally prompted by the decision of the defendants to honor a request by third parties*fn2 for public disclosure of the contested documents under the Freedom of Information Act (FOIA).*fn3 The district court, after a trial de novo, permanently enjoined public disclosure of certain portions of the contested documents, but denied the full range of injunctive relief requested by Chrysler, and also denied its request for a declaratory judgment that any future disclosure of similar documents would violate federal law. Chrysler appeals from the denial of the full declaratory and injunctive relief it requested. The federal government defendants in their cross-appeal originally contended (1) that Chrysler has no right to judicial review of an agency decision to disclose information requested by third parties under the FOIA; (2) that even if judicial review is available the scope of review is limited to that defined in the Administrative Procedure Act,*fn4 and does not include a trial de novo; and (3) that even if a trial de novo was proper the district court erred in enjoining disclosure of portions of the contested documents. After the government's initial brief was filed in this court the Solicitor General, in a petition for a writ of certiorari to review the decision of the Fourth Circuit in Westinghouse Elec. Corp. v. Schle-singer, 542 F.2d 1190 (4th Cir. 1976), cert. denied sub nom. Brown v. Westinghouse Elec. Corp., U.S. (1977), took the position that the exceptions to judicial review listed in 5 U.S.C. § 701 were inapplicable to so-called reverse FOIA actions,*fn5 and that Pub. L. 94-574, 90 Stat. 2721, eliminated federal sovereign immunity as a bar to such review. We have been advised by the Justice Department that it is now the government's position that judicial review is available to parties objecting to disclosure of information under the FOIA, but that the Administrative Procedure Act controls our scope of review. Chrysler contended in the district court, and continues to urge here, that any disclosure of the contested documents was prohibited by several federal statutes to which specific reference will be made hereafter and by the due process clause of the fifth amendment. It maintained in the district court, and urges here, that a trial de novo was proper. Because we are in substantial agreement with the government's present position we vacate the judgment of the district court and remand for further proceedings.
THE REGULATORY FRAMEWORK
Chrysler is a government contractor. As a condition of its doing business with the government it is required by an Executive Order,*fn6 and regulations promulgated there-under by the Secretary of Labor,*fn7 to employ and treat all employees without regard to race, color, religion, sex, or national origin, and to take affirmative action to eliminate discrimination in employment. In order to monitor compliance with these requirements, federal regulations require that every government contractor or subcontractor with fifty or more employees and a contract valued at $50,000 or more prepare and file an annual Employer Information Report, known as an EEO-1 report.*fn8 The EEO-1 report contains data on the number of women and minority group members employed. Contractors must also prepare and make available for inspection by appropriate federal agencies an Affirmative Action Program (AAP), providing detailed information on their past and projected employment of women and minority group members.*fn9 The AAP must contain a "utilization analysis" which describes the occupational levels of minority personnel employed by the contractor and "goals and time tables" by which opportunities for minority group members can be improved.*fn10 The failure of a contractor to comply with the Executive Order and regulations can result in the cancellation, termination, or suspension of existing contracts and debarment from future awards.*fn11
The Secretary of Labor has delegated administrative responsibility for the enforcement of the Executive Order to the Director of the Office of Federal Contract Compliance (OFCC).*fn12 The Director of OFCC has designated various federal agencies as "compliance agencies." These compliance agencies have primary responsibility for assuring adherence to the Executive Order by contractors within certain geographic areas or industrial classifications.*fn13 In Chrysler's case the Defense Supply Agency of the Department of Defense (DSA) is the designated compliance agency. As part of its monitoring duties DSA has conducted "compliance reviews" of Chrysler's employment practices. These reviews consist of an examination of Chrysler's EEO-1 and AAP documents, and on site inspections of its facilities. Compliance reviews result in a compliance review report (CRR), setting forth information supplied by the contractor, an analysis of his performance, and recommendations for sanctions or corrective measures.*fn14 DSA is also responsible for investigation and resolution of complaints of violations of the Executive Order,*fn15 and must file a "complaint investigation report" (CIR) with OFCC within sixty days of the receipt of a complaint.*fn16
Regulations promulgated by the Secretary of Labor contain rules providing for access by the public to information in the records of OFCC or its various compliance agencies.*fn17
These regulations implement 5 U.S.C. § 552, the Freedom of Information Act and supplement the policy and regulations of the Department of Labor, 29 C.F.R. Part 70. It is the policy of the OFCC to disclose information to the public and to cooperate with other public agencies as well as private parties seeking to eliminate discrimination in employment....
41 C.F.R.§ 60-40.1. Consistent with the general policy of disclosure to aid in eliminating employment discrimination, the regulations provide:
[Upon] the request of any person for identifiable records obtained or generated pursuant to Executive Order 11246 (as amended) such records shall be made available for inspection and copying, notwithstanding the applicability of the exemption from mandatory disclosure set forth in 5 U.S.C. 552 subsection (b), if it is determined that the requested inspection or copying furthers the public interest and does not impede any of the functions of the OFCC or the Compliance Agencies except in the case of records disclosure of which is prohibited by law.
41 C.F.R. 60-40.2(a). Thus the regulations contain a blanket waiver of any authority the government might have to resist disclosure of any information which falls into one of the nine categories of information which are exempt from mandatory disclosure under the FOIA.*fn18 OFCC's regulations also provide that "... all contract compliance documents within the custody of the OFFCC and the Compliance Agencies shall be disclosed upon request unless specifically prohibited by law or as limited elsewhere herein." 41 C.F.R. § 60-40.2(b). This blanket and mandatory disclosure requirement with respect to compliance documents is qualified in 41 C.F.R. § 60-40.3(a) which lists six categories of documents or parts thereof which "are exempt from mandatory disclosure by the OFCC and the compliance agencies and should be withheld if it is determined that the requested information does not further the public interest and might impede the discharge of any of the functions of the OFFCC or the Compliance Agencies."*fn19 Thus, even information within these six categories may be disclosed if OFCC determines that such disclosure is in the public interest and does not impede the discharge of the functions of OFCC or its compliance agencies. Finally, 41 C.F.R. § 60-40.4*fn20 provides that EEO-1 reports shall be disclosed, even though the exact same forms are furnished to the Equal Employment Opportunity Commission (EEOC)*fn21 and EEOC is statutorily prohibited from disclosing EEO-1 reports in its possession.*fn22
The contested documents in this case include Chrysler's EEO-1 reports and information which falls under three of the six exempt categories defined in 41 C.F.R. § 60-40.3(a),*fn23 namely: (1) those parts of Chrysler's AAP's which contain confidential commercial information indicating that a contractor plans major changes or shifts in his personnel requirements not yet publicly disclosed,*fn24 (2) those parts of Chrysler's AAP's which set forth staffing patterns and pay scales the release of which would injure the business or financial position of the contractor,*fn25 and (3) compliance investigation files and related documents to the extent that such information constitutes trade secrets and confidential commercial or financial information.*fn26
THE AGENCY PROCEEDINGS
On May 14, 1975, DSA notified Chrysler that third parties had requested under the FOIA the disclosure of the 1974 AAP of Chrysler's Newark, Delaware assembly plant, and the October 1974 CIR for that facility. Chrysler, on May 23, 1975 objected to the requested disclosure of the AAP, relying on the FOIA exemptions and OFCC disclosure regulations. It also requested a copy of the October 1974 CIR, which it had never seen, so that it could determine which parts of it should be treated as confidential. On May 30, 1975, DSA notified Chrysler that it had determined that the Newark AAP and CIR were subject to disclosure under the FOIA and OFCC disclosure rules, that Chrysler would not be furnished with a copy of the CIR prior to disclosure, and that both documents would be disclosed on June 4, 1975.
On July 1, 1975, DSA notified Chrysler that it had received a request under the FOIA for disclosure of the AAP and CRR for Chrysler's Hamtramck, Michigan assembly plant. The July 1 notice indicated that under the recent amendments to the FOIA, Pub. L. 93-502, 5 U.S.C. § 552(a)(6)(A)(i), DSA was required to make a substantive decision on release of these documents within ten working days of receipt of the request, and for that reason could not await the results of an appeal to OFCC under 41 C.F.R. § 60-60.4(d).*fn27 The DSA letter suggested that any comments Chrysler wished to make should be accomplished promptly. Chrysler, by letters dated July 3 and July 11, 1975, objected to the disclosure of the documents relating to its Hamtramck plant, contending that both the AAP and CRR were exempt from disclosure under the FOIA, and also that disclosure of certain information contained in the AAP, including EEO-1 data, was prohibited by 18 U.S.C. § 1905,*fn28 by § 709(e) of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-8(e),*fn29 and by 44 U.S.C. § 3508.*fn30 Chrysler's letter also requested a copy of the Hamtramck CRR, which it had never seen. On July 18, 1975, DSA replied in part:
Full consideration has been given by this agency to your comments and objections. Nevertheless, a determination has been made to release both the Affirmative Action Plan and the Compliance Review Report to the requester, subject to the exceptions noted in the attached list for the reasons given therein. Your assertions of competitive harm were unsupported by any showing of the likelihood of such harm, and only in one context would we agree to the existence of such a likelihood without such a showing. This is reflected in the first ten exceptions on the attached list.
This decision may be appealed to the Office of Federal Contract Compliance, Washington, D.C., 20210, within 10 days, per 41 C.F.R. 60-60.4. However, due to the time constraints imposed by the recent amendments to the Act (Public Law 93-502), we cannot wait for the results of such an appeal. Accordingly, the subject documents, with deletions as noted in the attached list, will be released 5 working days after your receipt of this letter.
(JA-100) The July 18 letter also made clear DSA's position that neither 18 U.S.C. § 1905, 42 U.S.C. § 2000e-8(e) nor 44 U.S.C. § 3508 applied to any part of the AAP report, including the EEO-1 data.
THE DISTRICT COURT PROCEEDINGS
Faced with the DSA determination that the FOIA, as amended, prohibited the agency from withholding disclosure while Chrysler exhausted an administrative appeal to OFCC, Chrysler commenced this action in the district court on June 4, 1975. The initial complaint, which was filed before Chrysler learned of the request for disclosure of the Hamtramck documents, only sought injunctive relief against disclosure of the documents relating to the Newark Delaware plant, and a declaratory judgment that public disclosure of any similar documents was prohibited by law. The district court issued a temporary restraining order which prohibited disclosure of the Newark plant documents, and which required the defendants to give Chrysler five days notice prior to the release of any similar documents relating to any of its other facilities. When DSA notified Chrysler of its intention to release the Hamtramck plant documents it amended the complaint to refer to those documents, and obtained from the district court temporary relief covering them as well.
Chrysler's amended complaint contained three counts. First, Chrysler charged that disclosure of any portion of its AAP's, EEO-1's, or of any CIR, or CRR relating to any of its facilities would be unlawful under exemptions (b)(3)(4)(5) and (7) of the FOIA, 5 U.S.C. § 552(b)(3)(4)(5) and (7),*fn31 under 42 U.S.C. § 2000e-8(e),*fn32 under 18 U.S.C. § 1905,*fn33 and under 44 U.S.C. § 3508.*fn34 Second, it alleged that such disclosure would be an abuse of agency discretion since it would be contrary to 41 C.F.R. § 60-40.3(a)*fn35 and 29 C.F.R. §§ 70.21,*fn36 70.22,*fn37 70.24,*fn38 and 70.31.*fn39 Third, it contended that the FOIA and OFCC disclosure rules as applied to Chrysler violate due process in that they afford no meaningful right to be heard initially or on appeal before disclosure of Chrysler's confidential information. By a stipulation and consent order the pendente lite restraints were continued until final hearing. In its pre-trial papers the government defendants objected to the court's jurisdiction and to the holding of an evidentiary hearing. The court reserved decision on these objections until a decision on the merits. Trial on the merits was held on August 25 and 26, 1975 and thereafter the parties filed a detailed "Stipulation of Facts and Issues."
The district court's opinion correctly holds that there is subject matter jurisdiction under 28 U.S.C. § 1331(a).*fn40 On the merits the court found that part of the information the agency proposed to release, described generically as the "manning tables,"*fn41 was confidential commercial information, the release of which could cause Chrysler substantial competitive harm.*fn42 On the basis of this finding the court concluded that the manning tables constituted information falling within exemption (b)(4) of the FOIA, and was therefore exempt from its mandatory disclosure provisions. The court then reasoned that since the manning tables constituted exempt information under the FOIA, whether DSA possessed the power to disclose these documents was to be determined by reference to other federal disclosure statutes, apart from the FOIA. Thus the court rejected Chrysler's argument that the FOIA creates a so-called reverse FOIA cause of action based on the theory that Congress, by exempting certain information from mandatory disclosure, intended to absolutely prohibit all agency disclosure of such exempt information under any circumstances.*fn43 Instead, the court held that 18 U.S.C. § 1905,*fn44 a criminal statute, made it a crime for a government employee to disclose the manning tables. Observing that the Secretary of Labor, on the authority of 5 U.S.C. § 301,*fn45 a general statute providing for the use and custody of government records, promulgated 29 C.F.R. § 70.21(a),*fn46 which forbids disclosure of confidential information the release of which would violate 18 U.S.C. § 1905, the court concluded that DSA was acting in violation of its own regulations and contrary to law.Thus it construed what it held to be DSA's governing regulation as consistent with 18 U.S.C. § 1905. It issued the injunction appealed from on the authority of 5 U.S.C.§ 706(2)(A) to prevent agency action "not in accordance with law." The court also held that 42 U.S.C. § 2000e-8(e) was inapplicable, and rejected Chrysler's due process contentions.
This case is one of a burgeoning number growing out of the conflict between the demands of federal regulatory agencies, as a necessary by-product of their regulatory activities, for the submission by private businesses of detailed financial, commercial and employee information, which would not voluntarily be disclosed to competitors, and the public access to most information in federal agency files which is mandated by the FOIA. It is, however, the first occasion which requires this Court to consider a reverse FOIA case, in which a corporate plaintiff (the submitter) seeks to enjoin an agency from disclosing submitter-generated business information.*fn47 The case presents several important issues about agency management of such information, about agency discretion to disclose information in the public interest, about submitter rights prior to disclosure and about the availability of remedies for the prevention of disclosure.
The FOIA requires agencies to disclose upon request any information not falling within one of nine specifically exempted categories.*fn48 The arguments of Chrysler and other corporate submitters seeking to prevent disclosure break down into three broad categories. First, Chrysler and others have urged that the FOIA itself both prohibits agency disclosure of information falling within any of the nine exemptions and affords an implied cause of action for injunctive or declaratory relief to prevent such disclosure. Second, they have claimed that even if the FOIA does not prohibit agency disclosure of exempt FOIA information, other statutes, such as 18 U.S.C. § 1905 and 42 U.S.C. § 2000e-8(e) do so, and afford an implied cause of action. Third, they contend that disclosure of submitter-generated business information that is exempt under the FOIA or protected by some other federal statute or regulation is an abuse of agency discretion subject to judicial review under the Administrative Procedure Act at the behest of a submitter adversely affected by such agency action. The first two categories would afford relief in the form of a trial de novo, while in the third judicial review would be limited to that available under 5 U.S.C. § 706. The posture of this appeal and cross-appeal requires that we address each theory on which a reverse FOIA action could be founded.
A. The Freedom of Information Act
The FOIA expressly creates a cause of action in favor of requester of information to enjoin federal agencies from withholding information.*fn49 It does not by its terms provide a cause of action for submitters of information to prevent disclosure. But while there is no express provision for an action by submitters, the FOIA's nine categories of exempt information*fn50 disclose a Congressional concern that disclosure of certain information might injure interests in privacy or confidentiality which may be as important as the public's right to general access to agency information.The fourth FOIA exemption, for example, covers "trade secrets and commercial or financial information obtained from a person and privileged or confidential."*fn51 There is ample Congressional history suggesting that Congress sought to afford some protection of submitters' interest in the confidentiality of such information.*fn52 Moreover we recognize that disclosure of submitter information is qualitatively different from disclosure of data directly relating to government operations, and that the interest in privacy appears stronger with respect to the former than the latter. But while the Congressional concern over confidentiality of submitter information is clear, an intention to make mandatory the non-disclosure of exempt information is less so, and the evidence of an intent to create a submitter cause of action is practically nonexistent.
Among the circuits which have considered the issue the District of Columbia*fn53 and the Fifth Circuits*fn54 have held that the FOIA exemptions are permissive and do not mandate agency withholding of exempt information. The Fourth Circuit has held that the exemptions mandate non-disclosure.*fn55 The Ninth Circuit, while first holding that the exemptions are mandatory, on rehearing withdrew that part of its opinion as premature.*fn56 The closest the Supreme Court has come to addressing the issue is the statement in E.P.A. v. Mink, 410 U.S. 73, 80, 35 L. Ed. 2d 119, 93 S. Ct. 827 (1973), that the FOLA exemptions "[represents] the congressional determination of the types of information that the Executive Branch must have the option to keep confidential, if it so chooses."*fn57 In our view, none of the opinions referred to contains a complete analysis of the myriad problems presented in reverse FOIA cases.
We conclude that Congress in the FOIA intended neither that the exemptions make non-disclosure mandatory nor that they provide the predicate for an implied cause of action. The two questions are interdependent, since it would obviously be difficult to imply a cause of action under the FOIA to bar government officials from releasing information the disclosure of which Congress intended to leave to agency discretion or other federal disclosure statutes. Both the plain language of § 552(b)*fn58 and the Congressional reports and debates suggest that no more was intended than a discretionary exception to the general mandatory duty of disclosure.*fn59 Nor can we ignore the contrast between the FOIA's express grant of a cause of action for requester of information*fn60 and its silence respecting submitter relief. Moreover, we note that when Congress in the Privacy Act of 1974*fn61 decided to create a civil cause of action to enjoin agency disclosure of FOIA exempt information it did so explicitly.See 5 U.S.C. § 552a(g)(1) (Supp. V 1975). But only private persons, not business entities were afforded this protection.*fn62 Finally, we think that judicial reconstruction of the statute to imply from the exemptions either a mandatory duty of non-disclosure or a cause of action to prevent disclosure, would be inconsistent with the basic purpose of the FOIA, which was not to afford confidentiality, but to overcome restrictive agency interpretations of the original public information section of the Administrative Procedure Act.*fn63 The general philosophy reflected in the FOIA is that of full agency disclosure to provide the public with speedy access to relevant information.*fn64 Recognizing an implied cause of action to prevent agency disclosure of exempt FOIA information would, we think, be inconsistent with that general philosophy, since it would place in the hands of interested submitters of information, rather than those of presumably disinterested governmental officials, the authority to take steps which might impede the dissemination of information of public importance. Thus we hold that the FOIA's language, legislative history, and philosophy of full disclosure bar a construction of the Act which mandates agency withholding of exempt information or recognizes an implied cause of action to prevent the disclosure of such information.
B. Other Non-Disclosure Statutes
Although we conclude that the FOIA does not limit the discretionary power of federal agencies to disclose exempt FOIA information, we recognize that the exercise of this discretionary authority may be prohibited, or substantially curtailed, by other federal non-disclosure statutes.*fn65 See FAA Administrator v. Robertson, supra, 422 U.S. at 264-66. Chrysler contends that apart from the FOIA, at least three non-disclosure statutes prohibit DSA from releasing the contested documents. Our consideration of that contention requires, with respect to each statute, the same dual inquiry we made respecting the FOIA: (1) does the statute forbid disclosure of the documents in issue; and (2) if so, can a private cause of action be implied from it.
1. 18 U.S.C. § 1905
The statute on which Chrysler and most other reverse FOIA plaintiffs*fn66 place principal reliance is 18 U.S.C. § 1905. On its face, this broadly worded criminal statute encompasses virtually every category of business information likely to be in the files of any federal agency.*fn67 However, in Westinghouse Elec. Corp. v. Nuclear Regulatory Commission, supra, we noted that § 1905's broad non-disclosure prohibitions apply only to disclosures "not authorized by law," and held that information disclosed pursuant to a validly enacted agency regulation is authorized by law.*fn68 Chrysler urges that in Westinghouse we erred, that an agency regulation does not have the force of law for purposes of § 1905, and that only specific Congressional statutes can authorize the release of information assuming the correctness of Westinghouse, disclosures pursuant to the OFCC disclosure regulations are not authorized by law for purposes of § 1905, because these regulations were adopted under the authority of 5 U.S.C. § 301, and Congress intended that § 301 not be used to limit the scope of § 1905.
While our discussion of the scope of the "not authorized by law" qualification to § 1905 in Westinghouse was not extended, we are confident that the holding is correct. In Westinghouse we found authority for the promulgation of the Nuclear Regulatory Commission's disclosure regulations in that agency's Congressionally enacted enabling act. That holding was consistent with those of the Supreme Court in cases involving the disclosure of information by other federal agencies.*fn69 Though OFCC has no statutory enabling act, it is authorized to promulgate disclosure regulations under the so-called housekeeping statute, 5 U.S.C. § 301, which provides in part:
The head of an executive department or military department may prescribe regulations for... 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.
Section 301 can be traced to the Act of July 27, 1789, Ch. 4, § 4, 1 Stat. 28, dealing with records of the State Department and the Act of August 7, 1789, Ch. 7, § 4, 1 Stat. 49, dealing with records of the War Department. Various housekeeping statutes were collected and codified in 1874,*fn70 and, as codified, granted authority to prescribe disclosure regulations. The present version, and in particular the last sentence, was enacted in 1958.*fn71 The legislative history makes clear that the addition of the last sentence was aimed at stopping agencies from relying on the housekeeping statute as authority to deny the requests of citizens for information.*fn72
In Non-Resident Taxpayers Ass'n v. Municipality of Philadelphia, 478 F.2d 456 (3d Cir. 1973), we held that § 301 authorized a Bureau of the Budget circular that instructs executive departments to furnish information to state and local taxing authorities regarding compensation paid to federal employees. Such a disclosure, absent the regulation, would clearly conflict with the broad language of § 1905. Thus, although we did not expressly address § 1905 in Non-Resident Taxpayers Ass'n, the holding is consistent with our conclusion in Westinghouse, that disclosures pursuant to validly adopted agency regulations are not subject to the strictures of § 1905.
We have been referred to no legislative history suggesting that § 1905, a 1948 codification of a group of statutes applicable to specific agencies,*fn73 was intended to limit the longstanding rulemaking authority under the 1874 codification of the housekeeping statute. Nor do we attach to the statement of Congressman Moss, respecting the 1958 amendment to the housekeeping statute (adding the last sentence of § 301), the same significance as the District of Columbia Circuit in Charles River Park "A", Inc. v. Department of HUD, supra, 519 F.2d at 942-43. Relying on Congressman Moss' statement that the 1958 amendment "does not affect the confidential status of information given to the government and carefully detailed in Title 18, United States Code, Section 1905...",*fn74 that court concluded that " § 301 does not authorize regulations limiting the scope of § 1905."*fn75 In doing so, however, the court took the statement out of context. Congressman Moss only stated that the amendment would not affect the confindential status of information covered by § 1905.He did not say that the amendment eliminated disclosure authority existing since 1789, or that it eliminated the "authorized by law" qualification in § 1905. Such an interpretation of the 1958 amendment is totally at odds with its central purpose - the elimination of governmental secrecy*fn76 - as it would transmogrify § 1905 into a weapon for those parties who advocate government secrecy. Thus we adhere to the position we took in Non-Resident Taxpayers Ass'n, that § 301 is a separate source of agency authority for the promulgation of disclosure regulations, and disclosures pursuant to such regulations are authorized by law and immune from the prohibitions of § 1905. Since the OFCC disclosure regulations are valid under § 301, all disclosures pursuant to those regulations are authorized by law and therefore not subject to § 1905.
Since we find authority for the promulgation of the OFFCC disclosure regulations in § 301 we need not consider whether the FOIA itself, properly construed, is an independent source of authority for the promulgation of disclosure regulations for exempt information.*fn77 Nor need we decide whether absent § 301, Executive Order 11246, which confers authority on the Secretary of Labor to adopt "such rules and regulations... as he deems necessary to achieve the purposes of the order",*fn78 is a separate source of authority for such promulgation.Our deferment of these grounds for sustaining the regulations should not be considered an expression of doubt as to these sources of authority, but only of confidence in our prior § 301 holding.
Even if we were incorrect in the Westinghouse holding that agency regulations are laws for purposes of the qualification to § 1905 we would, in any event, reject the proposition that § 1905 would serve as a predicate for a private civil cause of action. Recent pronouncements of the Supreme Court have severely limited the circumstances in which a federal court may imply a private cause of action from a federal statute.*fn79 Whatever the merits of this trend, the decisions bind us. Here the criminal statute provides for a fine of not more than $1000, imprisonment for not more than a year, and automatic removal from office upon conviction. The adequacy of these penalties would seem to assure the achievement of the Congressional objectives underlying § 1905. The very breadth of the prohibitions in § 1905 militates against opening the courts to civil suits which may involve substantial problems of construction. Moreover, as we hold hereafter, there is an available remedy under the Administrative Procedure Act, in which judicial review will be enlightened by agency interpretation. We do not believe we can properly imply a cause of action, and thus the right to a trial de novo, from § 1905.
2. 42 U.S.C. § 2000e-8(e)
Section 709(e) of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-8(e), is a criminal statute making it unlawful
"for any officer or employee of [EEOC] to make public in any manner whatever any information obtained by [EEOC] pursuant to its authority under this section prior to the institution of any proceeding under this subchapter involving such information."
Like § 1905, the maximum fine is $1000 and the maximum imprisonment one year. And, as with § 1905 and the FOIA, we must determine both whether the prohibition in § 709(e) applies and, if it does, whether a private cause of action for its enforcement may be implied. By its terms § 709(e) applies only to employees of EEOC, and only to information obtained by that agency on its own statutory authority. Since it is a criminal statute, ordinary rules of construction would seem to preclude its application, at least in a criminal enforcement context, to officers or employees of a different agency or to information obtained by a different agency under that agency's separate authority. Two circuits have concluded that OFCC compliance agencies are not governed by the § 709(e) prohibition.*fn80 Chrysler argues that those cases were wrongly decided, first because OFCC and EEOC are performing identical antidiscrimination functions, and second, because the EEO-1 reports are filed initially with the Joint Reporting Committee,*fn81 which it describes as the alter ego of EEOC.
It has long since been settled in this circuit that the federal government's antidiscrimination effort directed at government contractors rests upon a different authority, and even serves a different, though complementary, purpose than the efforts of EEOC.*fn82 The Executive Order program antedated the passage of Title VII, and Congress has rejected proposals to transfer the Executive Order functions of OFCC to EEOC.*fn83 The two agencies function independently, and we decline the invitation to disregard that independence in order to read § 709(e) as applicable to OFFCC compliance agencies such as DSA.
The argument that the Joint Reporting Committee (JRC) is the alter ego of EEOC, and that all EEO-1 forms filed with JRC must therefore fall within § 709(e) is no more persuasive. The JRC is a consequence of the 1972 amendments to Title VII which established the Equal Employment Opportunity Coordinating Council, 42 U.S.C. § 2000e-14. The Coordinating Council is responsible for, among other things, implementing inter-agency agreements to eliminate duplication among the operations, functions and jurisdictions of various federal agencies enforcing federal antidiscrimination employment policies. JRC was organized by the Coordinating Council to streamline the collection of employment discrimination information and to distribute it, without the necessity for multiple filings, to the separate agencies involved.*fn84 It is clear that JRC is the agent of several enforcement authorities. Nevertheless, nothing in 42 U.S.C. § 2000e-14 or in the implementing regulations which created JRC suggests an intention to extend the applicability of § 709(e) to federal employees outside EEOC or to information possessed by other agencies on their own authority.
Even assuming the applicability of § 709(e) to DSA, we are no more persuaded that a private cause of action can be implied from this criminal statute than from § 1905. The same reasons for our rejection of a private cause of action implied from § 1905 apply to § 709(e), and we will not repeat them. Chrysler's argument for a right to a trial de novo based on § 709(e) of Title VII is rejected.
3. 44 U.S.C. § 3508
Section 423 of the Federal Reports Act of 1942,*fn85 now codified as 44 U.S.C. § 3508*fn86 provides:
(a) If information obtained in confidence by a Federal agency is released by that agency to another Federal agency, all the provisions of law including penalties which relate to the unlawful disclosure of information apply to the officers and employees of the agency to which information is released to the same extent and in the same manner as the provisions apply to the officers and employees of the agency which originally obtained the information. The officers and employees of the agency to which the information is released, in addition, shall be subject to the same provisions of law, including penalties, relating to the unlawful disclosure of information as if the information had been collected directly by that agency.
(b) Information obtained by a Federal agency from a person under this chapter may be released to another Federal agency only -
(1) in the form of statistical totals or summaries; or
(2) if the information as supplied by persons to a Federal agency had not, at the time of collection, been declared by that agency or by a superior authority to be confidential; or
(3) when the persons supplying the information consent to the release of it to a second agency by the agency to which the information was originally supplied; or
(4) when the Federal agency to which another Federal agency releases the information has authority to collect the information itself and the authority is supported by legal provision for criminal penalties against persons failing to supply the information.
Chrysler argues that by virtue of the second sentence in § 3508(a) the employees of DSA are subject to the criminal provisions of § 709(e) of Title VII, even though that criminal statute would otherwise be applicable only to EEOC employees. This argument, however, assumes that DSA obtained the information in question from EEOC. Clearly that is not the case with respect to the APA's, the CIR's, or the CRR's. Though DSA and EEOC both obtain Chrysler's EEO-1 reports from the JRC, in the preceding subsection we rejected Chrysler's contention that the JRC is an alter ego of EEOC, rather than a collection agent of both EEOC and OFCC. Since DSA did not obtain the EEO-1 reports from EEOC, but instead, obtained this information on its own behalf in the first instance, § 3508(a) does not apply. Sears, Roebuck & Co. v. GSA, 166 U.S. App. D.C. 194, 509 F.2d 527, 529 (D.C. Cir. 1974). Nor may Chrysler argue that the provisions of § 3508(b) prohibit DSA from publicly disclosing the contested documents, since this subsection only governs inter-agency transfers of information, and is not applicable to agency decisions to disclose information to the general public.
We hold that § 3508 is entirely inapplicable to the case before us. Whether this statute, which contains no sanctions, would support an implied private cause of action to prevent inter-agency transfers of information in violation of its terms is a question of some difficulty, which we do not here decide.
C.The Administrative Procedure Act
The government first took the position that there could be no judicial review, on behalf of a submitter, of an agency decision to release information requested by third parties under the FOIA. It now concedes that judicial review pursuant to the Administrative Procedure Act (APA) is available because a submitter may be "[a] person suffering legal wrong because of agency action... within the meaning of a relevant statute."*fn87 In light of that concession there is no need to expound at length on the reasons why we agree with those courts which have held that the APA provides a cause of action for enjoining an agency from disclosing submitter-generated information.*fn88 The district court rejected the government's first position and held that judicial review was available under the APA. But while we agree with that ruling we have some difficulties with its application in this case.
Our first difficulty is with the district court's holding that DSA, in its decision to disclose the manning tables, which the court viewed as confidential data, was acting in violation of its own regulations, 29 C.F.R. § 70.21(a),*fn89 and thus "not in accordance with law."*fn90 Although 29 C.F.R. § 70.21(a) is modeled after the criminal disclosure prohibitions in 18 U.S.C. § 1905,*fn91 it, like § 1905, only prohibits disclosures "not authorized by law." Since we have held that any disclosures pursuant to the OFCC disclosure regulations are authorized by law, the prohibitions in 29 C.F.R. § 70.21(a) are not applicable to this case.
Our second difficulty with the decision concerns the proper scope of judicial review under the APA. In reaching its decision the district court held a trial de novo on the merits of Chrysler's assertions and relied heavily on the trial testimony of Chrysler's witnesses in reaching the determination that the manning tables constituted confidential data which DSA could not disclose. Judicial review under the APA ordinarily is limited to a "review of the whole [agency] record or parts of it cited by a party."*fn92 That rule is not inflexible, for certainly evidence may be taken in connection with an application under 5 U.S.C. § 705 for relief pending review. Moreover, the Supreme Court has approved de novo rather than agency record review (a) when the agency's action is adjudicatory in nature and its factfinding procedures are inadequate, or (b) when issues that were not before the agency are raised in a proceeding to enforce nonadjudicatory agency action.*fn93 In this case, however, the district court relied on the testimony of trial witnesses not merely to decide the question of relief pending review, but also to decide the substantive merits.And in reaching the merits the court did not address the question whether an agency disclosure decision pursuant to the FOIA or agency disclosure regulations was adjudicatory, and if so, whether the agency's procedures on which the disclosure decision was based were adequate.*fn94
Chrysler, relying on Sears, Roebuck & Co. v. General Services Administration, 180 U.S. App. D.C. 202, 553 F.2d 1378 (D.C. Cir. 1977), urges that regardless of the judicial review provisions of the Administrative Procedure Act the Declaratory Judgment Act, 28 U.S.C. § 2201, provides separate authority for the district court to hold a de novo hearing. That argument, however, would be equally applicable to every agency review case, and the Declaratory Judgment Act so construed would eliminate the effect of the later enacted Administrative Procedure Act. The Supreme Court stated in Public Serv. Comm'n v. Wycoff Co., 344 U.S. 237, 246, 97 L. Ed. 291, 73 S. Ct. 236 (1952), that "the declaratory judgment procedure will not be used to pre-empt and prejudge issues that are committed for initial decision to an administrative body or special tribunal any more than it will be used as a substitute for statutory methods of review." To construe the Declaratory Judgment Act to permit a federal court to conduct a trial de novo in reverse FOIA cases would transfer primary decisional responsibility for agency disclosures from the administrative agencies to the federal courts. We think the construction which Congress intended is that the scope of judicial review provisions of the Administrative Procedure Act apply in declaratory judgment actions.
It seems to us that in reverse FOIA cases under the APA a reviewing court should make the following analysis. First it should inquire whether any non-disclosure statute or non-disclosure regulation is applicable. If so, the court must conclude that the agency has acted outside the scope of its statutory authority, and should enjoin disclosure.If no non-disclosure statute or regulation applies, the court must then determine under what authority the agency intends to disclose the contested information. If the agency has concluded that the contested information does not fall within any FOIA exemption, thus mandating disclosure, the court must examine whether the agency applied the proper legal standards for the applicability of the FOIA exemptions. If, however, the agency has concluded (a) that the contested information does fall within a FOIA exemption but (b) public disclosure is, nevertheless, both desirable and permissible under the agency's own disclosure regulations, the court must undertake a two-step analysis. It must first examine whether the agency applied the proper legal standards for the applicability of the FOIA exemptions and, if so, then examine whether the agency considered the proper factors in determining that disclosure was permitted under its own disclosure regulations. Under the OFCC disclosure regulations, for example, the contested information in this case could only be disclosed if that agency determined that disclosure would "further the public interest and [not] impede the discharge of any of the functions of the OFCC or the Compliance Agencies."*fn95 And, as the FOIA exemptions make clear, disclosure of certain types of information will not, in the opinion of Congress, always be in the public interest. Finally, if the agency record does not establish, or insufficiently explains, the basis for the agency's decision, so as not to permit the reviewing court to effectively perform the above analysis, the remedy is not a trial de novo, but a remand to the agency for an additional record or explanation for its decision.*fn96 Interim relief can, of course, be ordered on the authority of 5 U.S.C. § 705.
Applying the foregoing principles to this case, we conclude that this is an instance in which a remand to the agency is appropriate. The agency record is so ambiguous that it is impossible to determine whether the decision of DSA to disclose the contested information was based on a determination that disclosure is mandated by the FOIA, or is in the public interest and thus permissible under that agency's own disclosure regulations. Even if the agency record clearly revealed that the disclosure decision was based on a determination that disclosure was mandated by the FOIA, a remand would still be necessary, as the record does not sufficiently disclose the basis for the agency determination that the FOIA exemptions are inapplicable. Nor would the result be any different if the record revealed that disclosure was pursuant to the agency's own regulations, as the record does not state that, or why, such disclosure would be in the public interest.
Our decision to remand this case is based solely on the inadequacy of the administrative record under review. The government has urged that the district court should not have, and we should not now, reach the merits of the challenge to the actions of DSA because of Chrysler's failure to exhaust an administrative review remedy available in OFCC. We reject this contention. Judicial review of agency action must be available at a meaningful time considering the nature of the alleged injury to the petitioner for review. As DSA announced in its letters, it considers the FOIA 10 day time limit for action on requests for nonexempt FOIA information, 5 U.S.C. § 552(a)(6)(A)(i), binding on it regardless of the pendency of an administrative review proceeding. Since disclosure would render moot any judicial review, the nature of the subject matter demands that the action of DSA be regarded as the final agency action to which such review is directed. The administrative appeal to which the government refers is a creature of regulation, 41 C.F.R. § 60-60.4(d),*fn97 and the availability of that remedy cannot be permitted to destroy the subject matter of a proceeding seeking judicial review.If there were no pending FOIA requests, and Chrysler were seeking an advance determination that some of the contested information should be withheld from the public it would be appropriate to require exhaustion of a § 60-60.4(d) review in OFCC. But this case is not in that posture. The district court properly considered both the requests for interim relief and the merits of the claim for judicial review.
D.Chrysler's Due Process Claims
Chrysler contends that it was denied due process of law in the agency proceedings which led to the DSA decision to disclose the contested documents. To the extent that Chrysler's due process claims are procedural we hold that, in light of the interests involved, OFCC disclosure regulation 41 C.F.R. § 60-60.4(d),*fn98 coupled with the process of administrative and judicial review set out above in Part IVC, meet fifth amendment due process standards. Any claim to substantive due process protection of "property" interests in information in the hands of the government is at this stage and on this record too speculative for our consideration. Since the Supreme Court's decisions in Goldstein v. California, 412 U.S. 546, 37 L. Ed. 2d 163, 93 S. Ct. 2303 (1973) and Kewanee Oil Co. v. Bicron Corp., 416 U.S. 470, 40 L. Ed. 2d 315, 94 S. Ct. 1879 (1974), there is considerable doubt as to what law, state or federal, and if state law, what state's law, should be looked to for such a "property" interest. The government urges that whether or not there is some proprietary interest in the disputed information, that interest is waived by any contractor doing business with the government. There is no need for us to endorse that position, which would require far more knowledge about government contracting statutes than has been furnished to us by the parties in this case. We do note that Chrysler has suggested no proprietary interest which would be broader than the categories made exempt from disclosure by 41 C.F.R.§ 60-40.3(a).*fn99 Until we are faced with a final decision to release such information we need not consider any substantive due process contentions.
The judgment of the district court shall be vacated and the case remanded to the district court for entry of an order that DSA conduct further proceedings consistent with this opinion. The district court should retain jurisdiction pending such further proceedings, and may consider the entry of an appropriate protective order until their completion. Pending the entry of the district court's order pursuant to the mandate of this court the extant stay order shall continue in effect.The appellant and appellees shall each bear their own costs.