Disclosure of Confidential Business Records Obtained Under the National Traffic and Motor Vehicle Safety Act

Disclosure of Confidential Business Records Obtained
Under the National Traffic and Motor Vehicle Safety Act

N atio n al H ig h w a y T raffic S afety A d m in istratio n (N H T S A ) is not a u th o riz e d to release
co n fid en tial in fo rm atio n and tra d e se cre ts o b tain ed p u rsu an t to § 112 o f the N ational
T raffic and M o to r V eh icle S afety A c t to th e F e d e ra l T ra d e C om m ission (C om m ission)
fo r use in a p en d in g in v estig atio n o f possible unfair an d d e c e p tiv e tra d e p ractices;
§ 112(e) p reclu d es d isclo su re to ag en cies o th e r th an th o se c h a rg e d w ith e n fo rc in g T itle
I o f th at A ct, ex cep t in a c c o rd a n c e w ith 18 U .S.C . § 1905.

U n d e r 18 U .S.C . § 1905, co n fid en tial c o rp o ra te re c o rd s m ay be released if a u th o riz e d by
law ; in th e p resen t situ ation o n ly § 8 o f th e F e d e ra l T ra d e C om m ission A c t, w h ich
co n fers on th e P re sid en t p o w e r to a u th o riz e d isc lo su re to th e C om m ission o f c o n fid e n ­
tial business in fo rm atio n p ro te c te d by § 1905, co n stitu te s such au th o rity .

E x ecu tiv e O rd e r N o. 12,174 is d esig n ed to m inim ize p a p e rw o rk b u rd e n s on ex ecu tiv e
agencies, an d d o es not a u th o riz e th e N H T S A to disclose in fo rm atio n p ro te c te d by
§ 1905; n o r d o es § 9 o f th e F e d e ra l T ra d e C om m ission A ct p ro v id e such a u th o rity , at
least in cases w h e re th e C om m ission has not so u g h t to ob tain the in fo rm atio n th ro u g h a
request to th e P re sid en t u n d e r § 8, o r d ire c tly from the p a rty u n d e r investigation.

August 15, 1980
MEMORANDUM OPINION FOR TH E C H IEF COUNSEL,
NATIONAL HIGHW AY T R A FFIC SAFETY AD M IN ISTRA TIO N

This responds to your letter inquiring whether confidential informa­
tion and trade secrets received by your agency pursuant to § 112 of the
National Traffic and Motor Vehicle Safety Act (Safety Act), 15 U.S.C.
§ 1401, may be released by it to the Federal Trade Commission (Com­
mission) for use by the Commission in a pending investigation of possi­
ble unfair and deceptive trade practices.
The opinion of this Office dated December 19, 1977 concluded that
§ 112(e) of the Safety Act precluded such a release 1 because of the

1 Section 112(e) provides:
(e) Except as otherw ise provided in section 158(a)(2) and section 113(b) o f this title, all
inform ation reported to o r otherw ise obtained by the Secretary o r his representative
pursuant to this title w hich inform ation contains o r relates to a trade secret or o th e r
m atter referred to in section 1905 o f title 18 shall be considered confidential for the
purpose o f that section, except that such inform ation may be disclosed to other officers
o r employees concerned w ith carrying out this title o r w hen relevant in any proceed­
ing under this title. N othing in this section shall authorize the w ithholding o f inform a­
tion by the Secretary o r any officer o r em ployee under his control, from the duly
authorized com m ittees o f the Congress.
15 U.S.C. § 1401(e). W e discussed the special situations covered by § 113(b), 15 U.S.C. § 1402(b), and
§ 158(a)(2), 15 U.S.C. § 1418(a)(2) in o ur 1977 opinion. T h ey d o not appear to be applicable to the
issues here involved.

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specific reference in that section to 18 U.S.C. §1905, prohibiting gener­
ally the disclosure of confidential information and trade secrets in the
possession of federal agencies unless authorized by law,2 and further
concluded that the Federal Reports Act, 44 U.S.C. §3508, was inappli­
cable.
You now have asked us to reexamine our 1977 opinion in the light of
our subsequent interpretation of a different statute, viz., § 505(d) of the
Motor Vehicle Information and Cost Savings Act of 1972, as added by
§301 of the Energy Policy and Conservation Act of 1975, 15 U.S.C.
§ 2005(d),* and in light of Executive Order No. 12,174, 3 C.F.R. 462
(1979), entitled “Paperwork.” Recognizing the importance of. the
matter, we have carefully reexamined our 1977 opinion. We are con­
vinced of the correctness of our conclusion that trade secrets and
confidential information obtained by your agency pursuant to §112 of
the Safety Act cannot be released to the Commission. We are rein­
forced in that view by the provisions in § 112(e), which authorize the
disclosure of such information to agencies carrying out Title I of the
Safety Act, thus indicating by implication that the information may not
be made available to agencies that do not have those functions.

I.

An important basis for our 1977 opinion was the holding in Morton v.
Mancari, 417 U.S. 535, 550-51 (1974), that in the absence of a clear
intention to the contrary “a specific statute will not be controlled or
nullified by a general one, regardless of the priority of enactment.”
Section 112(e) is not only a later enactment than the Federal Reports
A ct,3 but also deals with the specific issue of the disclosure of informa­
tion received pursuant to Title I of the Safety Act, rather than, as does
the Reports Act, with the general matter of the intragovemmental
exchange of information. Section 112(e) therefore prevails over the

2 Section 1905 provides:
W hoever, being an officer o r em ployee o f the U nited States o r o f any departm ent or
agency thereof, publishes, divulges, discloses, o r makes know n in any m anner or to any
extent not authorized by law any inform ation com ing to him in the course o f his
em ploym ent o r official duties o r by reason o f any exam ination o r investigation made
by, o r return, report o r record m ade to o r filed w ith, such departm ent o r agency or
officer o r em ployee thereof, w hich inform ation co n cerns o r relates to the trade secrets,
processes, operations, style o f w ork, o r apparatus, o r to the identity, confidential
statistical data, am ount o r source o f any incom e, profits, losses, o r expenditures o f any
person, firm, partnership, co rp o ratio n , o r association or permits any income return or
co p y th ereo f o r any book containing any abstract o r particulars th e re o f to be seen or
exam ined by any person except as pro v id ed by law; shall be fined not m ore than
$1,000, o r im prisoned not m ore than o n e year, o r both; and shall be rem oved from
office o r em ploym ent.
• N o t e : A n opinion o f the O ffice dated A pril 27, 1978 concluded that business secrets obtained
un d er T itle V o f the M o to r V ehicle Inform ation and C ost Savings A ct o f 1972 may generally be m ade
available to o th er governm ent agencies even though they may not be disclosed to the public. Ed.
3 W hile 44 U.S.C. § 3508 w as technically enacted in 1968 as the result o f the codification o f title 44,
U.S. C ode, i.e., subsequent to the 1966 enactm ent o f the Safety A ct, its enactm ent actually dates back
to th e F ederal R ecords A ct o f 1942, Pub. L. N o. 78-192, 57 Stat. 380 (1943).

736
Reports Act. Morton v. Mancari has repeatedly been cited with ap­
proval in recent decisions of the Supreme Court. See, e.g., The Regional
R ail Reorganization Act Cases, 419 U.S. 102, 133-34 (1974); Administra­
tor, FAA v. Robertson, 422 U.S. 255, 265-66 (1975); United States v.
United Continental Tuna, 425 U.S. 164, 168-69 (1976); Radzanower v.
Touche Ross & Co., 426 U.S. 148, 153 (1976). Significantly, the issue in
Robertson is analogous to the one here presented, namely, whether the
general disclosure provisions of the Freedom of Information Act, 5
U.S.C. § 552, prevail over the specific confidentiality provisions of
§ 1104 of the Civil Aviation Act, 49 U.S.C. § 1504 (Supp. Ill 1979).
Two recent decisions of the Supreme Court, Chrysler Corp. v. Brown,
441 U.S. 281 (1979), and Consumer Product Safety Comm'n v. GTE
Sylvania, Inc., 447 U.S. 102 (1980), further indicate that a specific
statutory confidentiality provision is not easily overcome.
Your letter and a letter we have received from the Commission each
suggest that the confidentiality of information submitted pursuant to
Title I of the Safety Act would be adequately protected even if the
Reports Act were applicable because confidential information made
available by one agency to another one pursuant to the Reports Act
still would have to be treated as confidential by the recipient agency.
The purpose of § 112(e) of the Safety Act is, however, as appears from
its very language, to protect confidential information received under
the Safety Act not only from the public and from competitors but also
from government agencies, except those that carry out that title. The
Safety Act is one of a group of statutes, called Required Report
Statutes, frequently part of safety legislation, which require the report­
ing of possibly self-damaging information in exchange for varying de­
grees of confidentiality. The underlying rationale is that persons are to
be encouraged accurately to report what may be incriminating informa­
tion that the government otherwise could not obtain at all or only with
much delay or difficulty, in exchange for a promise that the information
will not be disclosed freely. See, e.g., 2 J. Weinstein 8 M. Berger,
Weinstein's Evidence, U 502[02] (1979); The Required Report Privileges, 56
Nw. U.L. Rev. 283, 286 (1961); 8 J. Wigmore, Evidence in Trials at
Common Law, § 2377(f) (J. McNaughton Rev. 1961)).
Those who report confidential information to agencies dealing essen­
tially with safety considerations are concerned not only with disclo­
sures to the public at large or to their competitors. They also fear,
possibly even more so, the disclosure of that information to regulatory
or law-enforcing agencies. Thus, after the Supreme Court held in St.
Regis Paper Co. v. United States, 368 U.S. 208, 215-220, (1961), that the
Federal Trade Commission could subpoena the retained copies of
census reports, the response of at least some firms to census surveys
deteriorated with a corresponding reduction of the accuracy of census
statistics. See Report of the Secretary of Commerce to the President,
737
dated July 24, 1962, reprinted in S. Rep. 2218, 87th Cong., 2d Sess. p.
2-3 (1962).4 Similarly, it may be anticipated that firms will be less
willing to submit correct and complete information under the Safety
Act if they must expect that this information will be shared with
agencies such as the Commission, even if it will be withheld from the
general public and from competitors. Accordingly, it is our view that a
routine disclosure within the government—even if to the exclusion of
the public at large—of information received pursuant to Title I of the
Safety Act would be contrary to the statutory intent and contrary to
the purposes that this Required Report Statute was designed to achieve.

II.

The intended disclosure of the information to the Commission is thus
governed by 18 U.S.C. § 1905.5 That section does not absolutely pro­
hibit the publication of confidential business information and trade se­
crets but only the disclosure of information to the extent “not author­
ized by law.” The phrase “authorized by law” does not mean that the
authorization must be “specifically authorized by a law”; it is sufficient
that the disclosure is “authorized in a general way by law.” 41 Op.
A tt’y Gen. 166, 169 (1953).
The following have been recognized as lawful sources of disclosure
authority under § 1905 or its predecessors: subpoenas, Blair v. Oesterlein
Co., 275 U.S. 220, 227 (1927), United States v. Liebert, 519 F.2d 542, 546
(3rd Cir. 1975), cert, denied, 423 U.S. 985 (1975); requests of congres­
sional committees acting within the limits of their jurisdiction and
authority, 41 Op. A tt’y Gen. 221, 226-28 (1955); regulations, provided
that the authority on which the regulation is based includes the power
to waive the confidentiality provisions of 18 U.S.C. § 1905, cf. Chrysler
Corp. v. Brown, 441 U.S. at 294-316 (1975); or implication. Accord­
ingly, the power to liquidate a government-owned financial institution
has been held to carry with it the authority to disclose to potential
purchasers of its assets confidential financial data submitted by its bor­
rowers. 41 Op. A tt’y Gen. 166 (1953).
We turn now to examine the three possible sources of “authority”
pursuant to which your Agency may turn confidential business informa­
tion over to the Commission. They are: (1) Executive Order No. 12,174
of November 30, 1979, 3 C.F.R. 462 (1979), designed to minimize
federal paperwork burdens; (2) § 8 of the Federal Trade Commission
Act, 15 U.S.C. §48, pursuant to which the President may direct the
several departments and bureaus of the government to furnish to the

4 C ongress thereupon am ended 13 U .S.C. § 9(a) so as to render the retained copies o f census reports
im m une from agency dem ands and legal processes. A ct o f O ctober IS, 1962, Pub. L. N o. 87-813, 76
Stat. 922.
8 T h e tw o exceptions o f § 112(e), nam ely, disclosure to C ongress o r to another agency carrying out
T itle I o f the Safety A ct, are not applicable here.

738
Commission on its request all records, papers, and information in their
possession; and (3) § 9 of the Federal Trade Commission Act, 15 U.S.C.
§ 49, which confers subpoena power on the Commission.
1. Your letter suggests that the disclosure of confidential business
information and trade secrets by your agency would be “authorized”
by Executive Order No. 12,174, because that order, presumably § 1-
106[a], “establishes a system for sharing information among federal
agencies to eliminate duplication of information requests.” 6 The lan­
guage of § l-106[a] does not on its face purport to require, or even
permit, the sharing of information among federal agencies where disclo­
sure is prohibited by statute. To the contrary, the second sentence of
§ 1-107 provides that the “Order shall be implemented in a manner
consistent with all applicable Federal statutes.” Id. Hence, the executive
order shows by its own terms that it is not intended to constitute a
“lawful authority” within the meaning of 18 U.S.C. § 1905. In these
circumstances, it does not become necessary to go into the delicate
question whether the President’s general nonstatutory authority over
the federal establishment would support an executive order authorizing
or directing the disclosure of information which by statute is required
to be kept confidential. As a rule, this general nonstatutory executive
power cannot legalize action that is prohibited by law. See, e.g., Youngs­
town Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 635-38 (1952) (Jackson,
J. concurring); United States v. Tingey, 30 U.S. (5 Pet.) 115, 129 (1831);
United States v. MacDaniel, 32 U.S. (7 Pet.) 1, 14-15 (1833). Chrysler
Corp. v. Brown, 441 U.S. at 310-12 (1979), indicates that the prohibition
of 18 U.S.C. § 1905 cannot be overcome by the exercise of a house­
keeping authority.
In this connection your letter suggests that the Commission could
obtain information identical to that in the possession of your agency by
subpoenaing it directly from General Motors under § 9 of the Federal
Trade Commission Act, 15 U.S.C. §49. An interpretation of the law
requiring your agency to withhold the information from the Commis­
sion therefore would result, in your view, in a needless duplication of
effort in violation of the policy of the executive order and of the
Federal Reports Act. This analysis overlooks the important factor that
a subpoena under § 9 is subject to judicial review. For all we know a

6 Section 1-106 provides, in pertinent pa^t:
1-106. The D irector [Office o f M anagement and Budget] shall audit com pliance w ith
this O rder and may issue rules and regulations necessary to implement it. T he D irecto r
may issue exemptionis for agencies w hose use o f forms is limited. T h e D irecto r also
shall:
[a] Seek to eliminate duplication in requests for inform ation by establishing a Federal
inform ation locator system, w hich will list all the types o f inform ation collected by
Federal agencies and will be available for use by all agencies. This o r similar systems
will not contain any information obtained from the public. T he D irector shall take any
oth er steps needed to prevent duplication, including the assignment to a particular
agency o f lead responsibility for the collection o f certain types o f information.
3 C .F.R . 462, 463 (1979).

739
corporation the size of General Motors furnishing information to your
agency is far more concerned with the availability of judicial review of
a § 9 subpoena, than with the mechanical burden of having to duplicate
the reports submitted to your agency.7 Proceeding by a § 9 subpoena
rather than by an undisclosed intra-agency release of the documents
therefore would not constitute a needless duplicative procedure but one
which may prove to be of considerable value to General Motors. Of
course, if General Motors wants to avoid the burden of having to
duplicate the materials and has no objection to their release to the
Commission, it can request your agency to turn the information over to
the Commission. Such a request would unquestionably constitute an
authority within the meaning of § 1905.
2. Section 8 of the Federal Trade Commission Act provides:
The several departments and bureaus of the Government
when directed by the President shall furnish the Commis­
sion, upon its request, all records, papers, and information
in their possession relating to any corporation subject to
any of the provisions of this subchapter . . . .
15 U.S.C. §48.
Your letter suggests that your agency could release information to
the Commission even without a presidential directive, because insist­
ence on such “directive would impose an unnecessary burden on the
Government.” The legislative history of § 8, however, indicates that,
although the section does confer on the president the power to author­
ize the disclosure of confidential business information within the mean­
ing of 18 U.S.C. § 1905, presidential action is not an idle formality but
an indispensable prerequisite for such release.
During the debates on the Federal Trade Commission Act in the
House of Representatives, Congressman Mann inquired whether and to
what extent confidential corporate records in the possession of a gov­
ernment agency would be furnished to the Commission under § 8.
Congressman Covington, the sponsor of the bill, explained:
MR. COVINGTON. I think that is quite true. Those
returns ought not to be furnished except, perhaps, in an
extremely urgent case. The first draft of this section, as
prepared by the committee, did not have in it the qualify­
ing clause “when directed by the President.” In the first
draft of the section the provision as inserted was the same
as the provision for the same purpose contained in the law
creating the so-called Handley Commission. That con­
tained one of the broadest powers that has ever been

7 A cco rd in g to Che pream ble, and § 1-103 o f the executive order, the ord er is designed to minimize
the paperw ork burden on the public, "in particular, individuals and small organizations." 3 C .F .R . 462
(1979).

740
 conferred upon a commission to obtain from any of the
bureaus or departments of the Government any informa­
tion which it desired.
MR. MANN. That is very true, but that was before the
income-tax law was in effect.
MR. COVINGTON. If the gentleman will hear me
through. We then determined, however, that by limiting
the authority to turn over such information by direction
of the President, all the safeguards that ought to surround
any class of information would be in the possession of the
Government.
51 Cong. Rec. 9045 (1914).8 Accordingly, § 8 does constitute an “au­
thority” for the release of confidential business information and trade
secrets, but only after the President has determined the need for the
release of such information and directed that it be furnished to the
Commission.9
3. Section 9 of the Federal Trade Commission Act, 15 U.S.C. §49,
confers subpoena power on the Commission. It has been construed as
not limited to parties to proceedings before the Commission or to
persons under investigation by it, but as extending also to witnesses or
other third parties who have custody of pertinent documentary evi­
dence. Federal Trade Commission v. Tuttle, 244 F.2d 605, 611-16 (2d
Cir. 1957), cert, denied, 354 U.S. 925 (1957); Federal Trade Commission
v. Cockrell, 431 F. Supp. 561, 563 (D.D.C. 1977). The question, there­
fore, is whether the Commission could subpoena from your agency
information received by it under Title I of the Safety Act and whether
a release of the information pursuant to the subpoena would be “au­
thorized by law” within the meaning of 18 U.S.C. § 1905. On this
question there is an area of disagreement between the Department of
Justice and the Commission. We take the position that since § 8 of the
Federal Trade Commission Act is the specific procedure pursuant to
which the Commission can obtain records, papers, and information in
the possession of the government agencies, it is also the exclusive
one;10 and that an interpretation of § 9 giving the Commission power
to subpoena government agencies, would undermine the President’s
responsibility, specifically conferred on him by § 8, to determine the
situations in which the confidentiality of government documents may
be waived. In a recent interlocutory order issued in In re Exxon Corp.
et al., 95 F.T.C. 919 (1980), the Commission has taken the position, that,

8 T here w as no corresponding discussion in the Senate debate because the Senate version o f the
Federal T rad e Commission legislation did not have an equivalent to § 8.
9 T h e rem ote possibility that the President might direct a disclosure of confidential inform ation
pursuant to § 8 is not likely to affect the cooperation o f corporations w ith your agency. See United
States v. Nixon. 418 U.S. § 683, 711-713 (1974).
10 See. e.g., National Railroad Passenger Corp. v. National Ass'n o f Railroad Passengers, 414 U.S. 453,
458 (1974).

741
in view of its status as an independent agency, its power to obtain
information cannot be frustrated by the President’s refusal to make
information available to it under § 8. Nevertheless, the Commission’s
order indicates that, as against an agency in the executive branch, the
Commission will exercise its subpoena power under § 9 only after it has
proceeded unsuccessfully under § 8 and then only in the most compel­
ling circumstances, especially if the information cannot be reasonably
obtained by other means. In the situation at hand, the information is
subject to subpoena directed to the party under investigation. Hence,
under the Commission’s own interpretation of the law, it could not
direct a subpoena to your agency for the data in its possession.

L eon U lm an

Deputy Assistant Attorney General
Office o f Legal Counsel

742