United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued November 20, 2007 Decided June 27, 2008
No. 06-5361
VENETIAN CASINO RESORT, L.L.C.,
APPELLANT
v.
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,
APPELLEE
Appeal from the United States District Court
for the District of Columbia
(No. 00cv02980)
Kenneth J. McCulloch argued the cause for appellant.
With him on the briefs were Richard S. Rosenberg, John J.
Manier, Steven D. Cundra, and Frederick H. Kraus.
Robin S. Conrad and Laura Anne Giantris were on the
brief for amici curiae Chamber of Commerce of the United
States of America and Equal Employment Advisory Council.
Alan Burch, Assistant U.S. Attorney, argued the cause for
appellee. With him on the brief were Jeffrey A. Taylor, U.S.
Attorney, and R. Craig Lawrence, Assistant U.S. Attorney.
2
Before: GINSBURG, ROGERS, and GRIFFITH, Circuit
Judges.
Opinion for the Court filed by Circuit Judge GINSBURG.
GINSBURG, Circuit Judge: Seven years ago, Venetian
Casino Resort, LLC repaired to district court for an injunction
to keep the Equal Employment Opportunity Commission from
disclosing certain confidential information without notice.
The district court dismissed the case as unripe, but we held
otherwise and remanded the case for proceedings on the
merits. The district court then granted the Commission’s
motion for summary judgment and Venetian appealed,
arguing the Commission’s disclosure policy is unlawful. We
agree, reverse, and remand the case for the district court to
enter an injunction prohibiting the Commission from
disclosing Venetian’s confidential information pursuant to its
current disclosure policy.
I. Background
Venetian operates a hotel and casino in Las Vegas,
Nevada. When it opened in 1999 it hired approximately
4,400 new employees out of 44,000 applicants. Numerous
disappointed applicants filed complaints with the Commission
alleging Venetian had violated various civil rights statutes,
including, as relevant here, the Age Discrimination in
Employment Act of 1967 (ADEA), 29 U.S.C. § 621 et seq.
To assist the Commission with its investigation of the
ADEA claims, Venetian supplied the Commission with
information that Venetian deemed, and identified as,
confidential. The Commission subsequently issued a
subpoena for more documents. In 2001, after the Commission
denied Venetian’s petition to revoke the subpoena, Venetian
brought this action. It argued the Commission’s policy, which
3
permits Commission employees to disclose an employer’s
confidential information to potential ADEA plaintiffs without
first notifying the employer that its information will be
disclosed, violates the Administrative Procedure Act (APA),
the Freedom of Information Act (FOIA), and the Trade
Secrets Act (TSA). In particular, Venetian contended the
disclosure policy could not be reconciled with the
Commission’s own FOIA regulations, 29 C.F.R. § 1610.19 et
seq., which do require the Commission to notify an employer
before disclosing its confidential documents to a third party
pursuant to a FOIA request. Venetian’s particular concern
was that competitors and labor unions would obtain
confidential information regarding its hiring practices, which
information they would use to its economic detriment.
Venetian also sought to enjoin disclosure as infringing its
copyrights.
The district court dismissed the case as unripe. Venetian
Casino Resort, LLC v. EEOC (Venetian I), 360 F. Supp. 2d
55, 60 (2004). We reversed, first noting that the case
“presents a clear-cut legal question, i.e., whether the
Commission’s disclosure policy is inconsistent with the Trade
Secrets Act, FOIA, or the APA.” Venetian Casino Resort,
LLC v. EEOC (Venetian II), 409 F.3d 359, 364-65 (D.C. Cir.
2005). We further concluded that Venetian would face the
hardship necessary to make its claim ripe because, were
review postponed, Venetian would be unable to prevent the
Commission from disclosing the confidential information
Venetian had already submitted. Id. at 365-66.
Turning to the merits of Venetian’s complaint, we found
the precise terms of the disclosure policy at issue quite
uncertain. In the district court, the parties had focused upon
the disclosure policy as it appeared in the EEOC Compliance
Manual of 1987, which permitted the Commission to disclose
without notice an employer’s confidential information related
4
to an ADEA investigation. Id. at 361-62. On appeal,
however, the Commission informed this court that the parties
had been arguing about a version of the Compliance Manual
that was no longer in use; it had been superseded by a new
version, released in 1992 but never approved by the
Commissioners of the EEOC.
The 1992 Manual is not clear either about what the policy
of the Commission is. The introduction to Section 83.1 of the
1992 Manual states: “This section applies to ADEA [and
Equal Pay Act] files, but only as set out in [§ 83.1(a)] below.”
The referenced subsection provides that information in an
ADEA file related to an ongoing investigation may be
disclosed either under the Commission’s regulations
implementing the FOIA or under its regulations implementing
the Privacy Act. The former regulations explicitly require
that when a third party makes a FOIA request for confidential
commercial information, the Commission must notify the
submitter before disclosing the information. 29 C.F.R. §
1610.19 et seq. The latter regulations permit, as a “routine
use” of confidential information, disclosure of “pertinent
information to a ... third party as may be appropriate or
necessary to perform the Commission’s functions under the
[ADEA].” 56 Fed. Reg. 10,889, 10,889-90.
Venetian understood this “routine use” provision to mean
that, absent a FOIA request, the Commission may disclose
confidential information without first notifying the party that
submitted it. According to the district court, counsel for the
Commission had “unequivocally conceded” it might disclose
Venetian’s confidential information without notice. Venetian
II, 409 F.3d at 362. At oral argument on appeal, however,
counsel for the Commission first seemed to repudiate that
position outright and then expressed uncertainty whether the
Commission had any policy at all regarding the disclosure of
confidential information. Id. at 362-63.
5
We concluded that “the record of this case is deficient, in
part because the argument before the District Court was based
on an outdated version of the agency’s Manual and in part
because the Commission’s litigation position has been
inconsistent.” Id. at 367. Inasmuch as it remained “unclear
what the disputed provision in the revised Manual means,” we
remanded the case to the district court “to ascertain the
contours of the precise policy at issue. If Venetian’s
allegations turn out to be correct, the District Court must
determine in the first instance whether the policy is contrary
to law.” Id.
On remand, the Commission submitted the affidavit of
Nicholas Inzeo, its Director of Field Programs. He reported
that “[t]he 1992 version of the EEOC compliance manual was
never submitted to the Commissioners for approval, and the
Commissioners never rescinded the 1987 version,” but
“EEOC employees rely on the 1992 version” nonetheless.
Any difference between the two versions was immaterial,
however:
Neither version of section 83 requires EEOC field office
staff to notify persons that have submitted information
(confidential or otherwise) to EEOC during an
investigation when a request for that information is
received under section 83 or prior to release of
information under section 83.
Inzeo added that “[n]othing in any EEOC policy ... is meant to
contravene ... the Trade Secrets Act” and, in particular, that
Section 83 does not authorize any conduct that would violate
the TSA. Even though the introduction to Section 83.1 of the
1992 Manual states, “This section applies to ADEA ... files,”
Inzeo also declared:
6
Neither version of section 83 of the Compliance Manual
applies to ADEA or EPA charge files, and both versions
state that requests for information from closed ADEA ...
charge files must be processed under the Freedom of
Information Act.
The parties submitted dueling statements of undisputed
facts. Venetian claimed the “EEOC’s practice is to disclose
confidential documents when it deems it appropriate or
necessary, without prior notice to the submitter.” In response,
the Commission stated it follows the 1992 version of the
Compliance Manual and “[t]he provisions of Section 83 speak
for themselves.” It conceded Section 83 does not require the
Commission to notify submitters before releasing their
confidential information, but represented that it had neither
released nor decided to release any of Venetian’s confidential
information.
The district court determined that “[t]hough it is not
definitively clear whether the 1987 or 1992 version
constitutes the ‘official version’ of the manual, Section 83 is
identical in all material aspects in the two versions.” Venetian
Casino Resort, LLC v. EEOC (Venetian III), 453 F. Supp. 2d
157, 160 n.3 (2006). The court “assum[ed] the EEOC ha[d] a
disclosure policy or practice, written or otherwise, that allows
the agency to release documents that the submitting party has
identified as containing trade secrets and/or confidential
material without first notifying the submitting party.” Id. at
160 (emphasis and internal quotation marks omitted). The
court then granted the Commission’s motion for summary
judgment on the ground that the policy was not arbitrary or
capricious in violation of the APA because it did not violate
any other statute or regulation. Id. at 162-68.
II. Analysis
7
We review the district court’s grant of summary
judgment de novo. Galvin v. Eli Lilly & Co., 488 F.3d 1026,
1031 (D.C. Cir. 2007). Before proceeding to the legal
analysis, we explain our factual conclusion that it is the
Commission’s policy to disclose confidential information
without notice.
A. Factual posture
When reviewing a grant of summary judgment, we “view
the evidence in the light most favorable to the nonmoving
party and draw all reasonable inferences in its favor.” Id.
(internal quotation marks omitted). If we determine there is a
“genuine dispute concerning a material fact,” which makes
the case unsuitable for summary judgment, then we remand
the case to the district court to resolve the factual issue.
Arrington v. United States, 473 F.3d 329, 339 (D.C. Cir.
2007). In this case, unlike the district court, we do not
merely “assume” the truth of Venetian’s allegations: Their
truth has been established.
Although the details of the Commission’s disclosure
policy are still unclear, the record leaves no doubt the
Commission has a policy of disclosing confidential
information without notice to the submitter. Venetian so
asserted in its statement of undisputed facts before the district
court and, although the Commission made several ambiguous
statements, it never denied Venetian’s description of the
agency’s policy.
Here are the Commission’s assertions, in chronological
order:
• Inzeo asserted in his Declaration, and the Commission
in its brief confirms, “Neither version of section 83 of
the Compliance Manual applies to ADEA or [Equal
8
Pay Act] charge files.” We find this statement
incredible inasmuch as § 83.1(a) of both the 1987 and
the 1992 Manuals explicitly applies to ADEA files,
and those are the very provisions Venetian challenges
as unlawful.
• Inzeo also asserted in his Declaration that the
Commission does not “violate the Trade Secrets Act.”
This is a legal conclusion and is not responsive to
Venetian’s claim that the Commission will disclose
without notice information Venetian has labeled
“confidential.”
• In its statement of undisputed facts before the district
court, the Commission asserted, “The provisions of
Section 83 speak for themselves.” This is, to say the
least, surprising in light of this court’s having
previously found it “unclear what the disputed
provision in the revised Manual means.” Venetian II,
409 F.3d at 367. In any event, § 83 permits disclosure
as authorized by the Commission’s regulations
implementing the Privacy Act, which in turn permits
disclosure without notice “as may be appropriate or
necessary to perform the Commission’s functions
under the [ADEA].” Such an open-ended statement of
policy casts no doubt upon Venetian’s allegation.
When directly questioned about the disclosure policy at
oral argument, counsel for the Commission conceded
employees of the Commission might disclose confidential
information without notice:
Counsel: If the agency thought that the information had
any chance of actually being [a trade secret] then they
would tee up some sort of notice provision or something
to ... create a decision as to whether the information was
9
confidential commercial information.
The Court: What if you think it’s not?
...
Counsel: Then they would take their chances as to
whether they’re complying with the Trade Secrets Act.
(Oral Arg., 21:26-21:56). Counsel later reaffirmed this policy
as follows:
The Court: If a submitter marks a document as
confidential ... what happens?
...
Counsel: [T]he agency would need to decide whether it
was going to refrain on the basis that ... it might actually
be ... trade secret information. The agency could say the
claim is obviously preposterous and proceed ... or the
agency could send out notice to the submitter.
(Oral Arg., 26:25-27:18).
In sum, the Commission has never denied Venetian’s
allegations, even when styled as “statements of undisputed
fact,” and counsel for the Commission conceded their
essential truth at oral argument. On this record it is clear the
Commission has a policy of disclosing confidential
information without notice; we proceed to the question
whether that policy is lawful.
B. Administrative Procedure Act
Venetian challenges the Commission’s disclosure policy
primarily as a violation of the APA. It asks us to enjoin the
Commission from disclosing its confidential information
without notice because the policy is “arbitrary, capricious, an
abuse of discretion, or otherwise not in accordance with law.”
10
5 U.S.C. § 706(2)(A). Before we proceed to the merits of
Venetian’s claim, we consider the Commission’s argument
that Venetian has no cause of action under the APA.
1. Cause of action
The Commission contends Venetian’s claims are not
cognizable under the APA for two reasons: Its policy (a) does
not constitute “final agency action” and therefore is not
reviewable pursuant to 5 U.S.C. § 704, and (b) is “committed
to agency discretion by law” and therefore expressly made
unreviewable by 5 U.S.C. § 701(a)(2). Neither reason
persuades.
a. Final agency action
A “final agency action” within the meaning of the APA is
“the consummation of the agency’s decisionmaking process ...
by which rights or obligations have been determined or from
which legal consequences will flow.” Bennett v. Spear, 520
U.S. 154, 177-78 (1997) (internal quotation marks omitted).
The agency claims its Compliance Manual is not a “final
agency action” because it is merely a guidance document that
does not affect its own or the public’s legal obligations.
This argument is misdirected because Venetian does not
contend the Manual itself is a final agency action. Rather,
Venetian challenges the decision of the Commission to adopt
a policy of disclosing confidential information without notice.
The Manual is relevant insofar as it illuminates the nature of
the policy, but the agency took final action by adopting the
policy, not by including it in the Manual.
Adopting a policy of permitting employees to disclose
confidential information without notice is surely a
“consummation of the agency’s decisionmaking process,” and
11
“one by which [the submitter’s] rights [and the agency’s]
obligations have been determined.” In sum, as we held in
Venetian II, rejecting the Commission’s challenge to the
ripeness of Venetian’s claims, “the question whether EEOC’s
disclosure policy is lawful presents a live and focused dispute
emanating from agency action that is both final and
consequential to Venetian.” 409 F.3d at 367.
b. Committed to agency discretion by law
The Commission next argues that because the ADEA
does not dictate the terms of its Manual or even require the
issuance of a Manual, there are “no judicially manageable
standards against which a court may analyze the [agency’s]
exercise of discretion,” Dickson v. Secretary of Defense, 68
F.3d 1396, 1401 (D.C. Cir. 1995), and the contents of the
Manual are therefore “committed to agency discretion by
law.” 5 U.S.C. § 701(a)(2). That the ADEA neither gives
content to nor requires the Commission to issue a Compliance
Manual is, however, irrelevant. Again, Venetian’s challenge
is not to the Manual but to the policy underlying it, to which
we now turn.
2. The merits of the APA claim
Venetian asserts the policy of the Commission is arbitrary
and capricious for two reasons: It violates the Trade Secrets
Act and it is inconsistent with the Commission’s own
regulations governing FOIA requests.
a. The Trade Secrets Act
The TSA prohibits an officer or employee of the United
States from disclosing “in any manner or to any extent not
authorized by law any information coming to him in the
course of his employment ... which ... concerns or relates to
12
the trade secrets ... of any ... firm.” 18 U.S.C. § 1905.
Although the TSA is a criminal statute and does not create a
private right of action, the Supreme Court has held a party
may file an action under the APA to enjoin an agency (and
any employee thereof) from disclosing its confidential
information in violation of the TSA. Chrysler Corp. v.
Brown, 441 U.S. 281, 317-18 (1979).
As we recently explained, the protection provided by the
TSA is at least as broad as that provided by Exemption 4 of
the Freedom of Information Act, which
protects “matters that are ... trade secrets and commercial
or financial information obtained from a person and
privileged or confidential.” 5 U.S.C. § 552(b)(4).
Commercial or financial information obtained from a
person involuntarily “is ‘confidential’ for purposes of the
exemption if disclosure [would] ... cause substantial harm
to the competitive position of the person from whom the
information was obtained.” Nat’l Parks & Conservation
Ass’n v. Morton, 498 F.2d 765, 770 (D.C. Cir. 1974); see
also Critical Mass Energy Project v. NRC, 975 F.2d 871,
880 (D.C. Cir. 1992) (en banc) (adhering to National
Parks with regard to commercial or financial information
involuntarily submitted to the Government). We have
long held the Trade Secrets Act ... is “at least co-
extensive with ... Exemption 4 of FOIA.” CNA Fin.
Corp. v. Donovan, 830 F.2d 1132, 1151 (D.C. Cir. 1987).
The upshot is that, unless another statute or a regulation
authorizes disclosure of the information, the Trade
Secrets Act requires each agency to withhold any
information it may withhold under Exemption 4 of the
FOIA. Bartholdi Cable Co., Inc. v. FCC, 114 F.3d 274,
281 (D.C. Cir. 1997).
Canadian Comm. Corp. v. Air Force, 514 F.3d 37, 39 (2008).
13
Venetian contends any disclosure of its confidential
information is contrary to the TSA; moreover, because the
Manual is not “a statute or regulation,” it does not render
disclosure of the information “authorized by law.” This
argument fails because disclosure of information does not
violate the TSA merely because that information was labeled
“confidential” by the submitter. Information is protected by
the TSA only if its disclosure would “cause substantial harm
to the competitive position of the person from whom the
information was obtained.” National Parks, 498 F.2d at 770.
According to the Inzeo Declaration, the Commission
strives not to and does not disclose information in violation of
the TSA; indeed, no employee of the Commission has ever
been accused of having done so. At oral argument counsel for
the Commission asserted that, when deciding whether to
disclose information labeled confidential, the agency makes
an independent assessment of whether the information is a
trade secret. These statements are undisputed: Venetian
presents no evidence the Commission has ever disclosed any
information in violation of the Trade Secrets Act, and absent
any such evidence we must presume the agency is acting in
accordance with the law. Horowitz v. Peace Corps, 428 F.3d
271, 278 (D.C. Cir. 2005).
Venetian next argues that, should a Commission
employee determine the release of a document Venetian has
labeled confidential will not divulge a trade secret, it will not
have the opportunity to contest and prevent the disclosure. If
only Venetian were notified in advance that the Commission
intended to disclose its confidential information, then
Venetian could explain to the Commission why the document
is a trade secret and, if the Commission is unconvinced,
contest the matter in court; without notice, it is at risk of an
uninformed and erroneous judgment by an agency employee
that disclosure of its confidential information will not cause it
14
competitive harm.
Venetian’s argument is not without force. Commission
employees, who cannot be intimate with the circumstances of
each of the more than 600,000 firms subject to the ADEA, see
29 U.S.C. § 630(b) (making ADEA applicable to any
company with twenty or more employees); Statistics about
Business Size from the U.S. Census Bureau, available at
http://www.census.gov/epcd/www/smallbus.html (noting
there were 629,940 firms with twenty or more employees in
2004), cannot be expected to anticipate the competitive
implications of disclosing an employer’s confidential
information. Moreover, although we do not doubt
Commission employees attempt in good faith to abide by the
TSA, the Commission points to no reason to think they have
an incentive to take the precaution of notifying the submitter
before disclosing its information.*
In sum, an employee of the Commission is likely unable
to assess accurately whether a document is a genuine trade
secret before disclosing it. Therefore, although the agency’s
policy of disclosure without notice does not itself violate the
TSA, it does increase the probability that an employee of the
Commission will violate the TSA; according to Venetian, that
alone makes the policy arbitrary and capricious.
*
Criminal prosecution under the TSA seems particularly
unlikely; such prosecutions are rare -- we have located no published
report of such a case in our circuit -- and may be impossible if the
employee was acting in good faith. See United States v.
Wallington, 889 F.2d 573, 577-79 (5th Cir. 1989) (no TSA
violation unless government employee was aware “disclosure is
forbidden” by law, lest statute be unconstitutionally vague or “an
overbroad restriction on the right of government employees to
speak”).
15
*
In its brief, the Commission relies heavily upon EEOC v.
Associated Dry Goods Corp., 449 U.S. 590 (1981), and
University of Pennsylvania v. EEOC, 493 U.S. 182 (1990).
As the Commission acknowledges, however, those cases are
relevant only to the question whether its disclosure policy is
inconsistent with Title VII of the Civil Rights Act of 1964, 42
U.S.C. § 2000e et seq. -- and Venetian raises no issue of that
sort. Indeed, the Court in the former case expressly noted that
issues concerning the APA, the TSA, and the FOIA “are not
now before us.” 449 U.S. at 594 n.4.
The Commission supplies two explanations for its policy
that do specifically reference the TSA. It first contends,
without citing any authority, that the TSA “proscribes the
behavior of individual officers and employees of the federal
government, not that of agencies more generally,” and
pronounces this argument “insurmountable.” Perhaps the
absence of supporting citations is attributable to the Supreme
Court’s precisely contrary holding in Chrysler Corp., the
seminal case on the intersection between the APA and the
TSA: “[W]e conclude that § 1905 [the TSA] does address
*
Prior to this litigation the Commission never explained how it
reconciles its disclosure policy under the Privacy Act with its
obligations under the Trade Secrets Act. In these circumstances we
review the explanation advanced in the agency’s brief. See Auer v.
Robbins, 519 U.S. 452, 462 (1997) (“Petitioners complain that the
[agency]’s interpretation comes to us in the form of a legal brief; but
that does not, in the circumstances of this case, make it unworthy of
deference. The [agency]’s position is in no sense a ‘post hoc
rationalization’ ... There is simply no reason to suspect that the
interpretation does not reflect the agency’s fair and considered
judgment on the matter in question.”) (citation and alteration omitted);
Nat’l Wildlife Fed’n v. Browner, 127 F.3d 1126, 1129 (D.C. Cir.
1997) (deferring to agency’s litigation position when “there is nothing
to suggest that the agency has ever before had any reason to address
the issue”).
16
formal agency action.” 441 U.S. at 301.
The agency’s second argument is more convincing: In
the absence of any evidence it has violated the TSA in the
past, it should not be required to adopt a policy in order to
ensure it will not violate the TSA in the future. The policy
does not violate the TSA in letter or in spirit, on its face or as
applied thus far; the Commission has simply failed to adopt a
prophylactic rule in order to reduce the probability that an
employee will disclose a trade secret. Although the purpose
of the TSA might well be furthered if the Commission gave
submitters notice before disclosing their confidential
information, the agency is not required “to take explicit
account of public policies that derive from federal statutes
other than the agency’s enabling [a]ct.” Pension Benefit
Guar. Corp. v. LTV Corp., 496 U.S. 633, 646 (1990).
The situation might look different if the Commission’s
disclosure policy, although not a violation of the TSA,
routinely caused agency employees to violate that Act, but
that is not the case. Indeed, in the Inzeo Declaration, the
Commission not only reported that it knew of no employee
ever having been accused of violating the TSA; it also stated
it was committed to making a good-faith effort to abide by the
TSA. In sum, we cannot find the Commission’s disclosure
policy is contrary to or otherwise frustrates the policy of the
Trade Secrets Act and we therefore have no warrant in the
Administrative Procedure Act for disturbing it on that ground.
b. The Commission’s FOIA regulation
Venetian next argues the Commission’s policy is
arbitrary and capricious because it is inconsistent with the
agency’s regulations regarding requests made under the
FOIA. Those regulations, which implement Executive Order
12,600, 52 Fed. Reg. 23781 (1987), require the Commission
17
to “provide a submitter with explicit notice of a FOIA request
for confidential commercial records whenever ... the submitter
previously, in good faith, designated the records as
confidential commercial information.” 29 C.F.R. §
1610.19(b)(3). They further oblige the Commission to afford
the submitter the opportunity “to provide it with a detailed
statement of objections to disclosure,” id. § 1610.19(d), to
“consider carefully the objections of a submitter,” id. §
1619.19(e)(1), and, when it decides information should be
disclosed notwithstanding such objections, to “provide the
submitter with a written statement briefly explaining why the
objections were not sustained ... in order that the submitter
may seek a court injunction to prevent release of the records if
it so chooses.” Id.
Venetian and the two amici contend Section 83 of the
Compliance Manual constitutes a “back door” that allows the
Commission unlawfully to avoid the requirements of its own
FOIA regulations. According to Venetian, the Commission
can decline to notify the submitter of confidential information
when it discloses the information to a third party as long as
the disclosure is styled “disclosure under Section 83” rather
than “disclosure under the FOIA.” In its brief before this
court, the only justification the Commission musters in
response is the question-begging statement that because “the
EEOC has not received a FOIA request ... for the Venetian’s
information ... the [FOIA regulations] do[] not ... apply to this
case.”*
*
At oral argument counsel also offered a pragmatic, albeit
subjective, justification for the Commission’s failure to establish a
formal policy of notifying the submitter before making a disclosure
under Section 83: He was personally unaware of any previous
instance in which a company had disclosed confidential commercial
information to the EEOC and, because the situation “just doesn’t
come up,” he thought it unnecessary “as a practical matter” to
establish a formal notice procedure. He also volunteered his view
18
With this as the only cognizable justification for the
Commission’s policy, we cannot but agree with Venetian that
the policy is arbitrary and capricious. To maintain two
irreconcilable policies, one of which -- the Compliance
Manual section relating to the Privacy Act -- apparently
enables the agency or, for that matter, any person asking for
information, to circumvent the other, viz., the regulation
implementing the FOIA and requiring pre-release notification,
is arbitrary and capricious agency action. See INS v. Yang,
519 U.S. 26, 32 (1996) (“[A]n irrational departure from [a
governing] policy ... constitute[s] action that must be
overturned as ‘arbitrary, capricious, or an abuse of discretion’
within the meaning of the Administrative Procedure Act”
(alteration omitted)).
We do not say the disclosure policy is necessarily
contrary to law; perhaps the EEOC can yet supply a reasoned
reconciliation of Compliance Manual § 83.1 and its
regulations governing FOIA requests, preferably accompanied
by a definitive explanation of exactly when each applies.
Until then, however, the agency may not maintain its policy to
Venetian’s detriment. Venetian is entitled to an injunction
against the release of its confidential information in any
manner other than that prescribed in the Commission’s FOIA
regulations.
III. Conclusion
that the information Venetian had disclosed was “unlikely to be the
sort of information” that would be disclosed under Section 83. We
do not consider these assertions because we cannot be confident
such apparently extemporaneous arguments, which appear nowhere
in the Commission’s brief, “reflect the agency’s fair and considered
judgment on the matter.” Auer, 519 U.S. at 462.
19
Absent an adequate justification, the Commission’s
disclosure policy must be deemed arbitrary and capricious.
Therefore, we remand this case to the district court to enjoin
the Commission from disclosing Venetian’s confidential
information without adhering to the notice and other
requirements of the agency’s regulations implementing the
FOIA. The injunction may be dissolved if and when the
Commission provides an explanation for its disclosure policy
that satisfies the standards to which agency action must be
held pursuant to the APA. See Fla. Power & Light Co. v.
Lorion, 470 U.S. 729, 744 (1985) (“[I]f the agency has not
considered all relevant factors, or if the reviewing court
simply cannot evaluate the challenged agency action on the
basis of the record before it, the proper course ... is to remand
to the agency for additional ... explanation”).
So ordered.*
*
Venetian also contends it is entitled to “an injunction
restraining the EEOC from releasing its ... documents ... that [are]
protected under the Federal Copyright Act,” 17 U.S.C. § 101 et seq.
The district court denied this claim on the merits because “[n]othing
in the Act requires the establishment of particular internal agency
procedures.” 453 F. Supp. 2d at 166. This is true but not
dispositive because the Act does entitle a copyright holder to an
injunction barring infringement of its copyright. 17 U.S.C. § 502.
Disclosure is not an act of infringement but reproduction is. Id. §
106.
This claim is not ripe for judicial review. Whether
reproduction of a particular document would violate the Copyright
Act depends upon the characteristics of that document, but the
record indicates neither the precise nature of the documents
Venetian has submitted nor of the documents, if any, the
Commission intends to disclose. We note also that, should the
EEOC infringe its copyright, Venetian has a remedy in damages.
17 U.S.C. § 504. We therefore vacate the judgment of the district
court insofar as it denied Venetian’s copyright claim on the merits;
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on remand the district court should dismiss that claim as unripe.