Chrysler Corp. v. Brown, 441 U.S. 281 (1979)

MR. JUSTICE MARSHALL, concurring.

I agree that respondents’ proposed disclosure of information is not "authorized by law" within the meaning of 18 U.S.C. § 1905, and I therefore join the opinion of the Court. Because the number and complexity of the issues presented by this case will inevitably tend to obscure the dispositive conclusions, I wish to emphasize the essential basis for the decision today.

This case does not require us to determine whether, absent a congressional directive, federal agencies may reveal information obtained during the exercise of their functions. For whatever inherent power an agency has in this regard, § 1905 forbids agencies from divulging certain types of information unless disclosure is independently "authorized by law." Thus, the controlling issue in this case is whether the OFCCP disclosure regulations, 41 CFR §§ 60.40-1 to 60.40-4 (1978), provide the requisite degree of authorization for the agency’s proposed release. The Court holds that they do not, because the regulations are not sanctioned directly or indirectly by federal legislation.{1} In imposing the authorization requirement of § 1905, Congress obviously meant to allow only those disclosures contemplated by congressional action. Ante at 298-312. Otherwise, the agencies Congress intended to control could create their own exceptions to § 1905 simply by promulgating valid disclosure regulations. Finally, the Court holds that, since § 10(e) of the Administrative Procedure Act requires agency action to be "in accordance with law," 5 U.S.C. § 706(2)(A), a reviewing court can prevent any disclosure that would violate § 1905.{2}

Our conclusion that disclosure pursuant to the OFCCP regulations is not "authorized by law" for purposes of § 1905, however, does not mean the regulations themselves are "in excess of statutory jurisdiction, authority, or limitations, or short of statutory right" for purposes of the Administrative Procedure Act. 5 U.S.C. § 706(2)(C). As the Court recognizes, ante at 309 n. 40, that inquiry involves very different considerations than those presented in the instant case. Accordingly, we do not question the general validity of these OFCCP regulations or any other regulations promulgated under § 201 of Executive Order No. 11246, 3 CFR 340 (1964-1965 Comp.). Nor do we consider whether such an Executive Order must be founded on a legislative enactment. The Court’s holding is only that the OFCCP regulations in issue here do not "authorize" disclosure within the meaning of § 1905.

Based on this understanding, I join the opinion of the Court.

1. That the OFCCP regulations were not promulgated in strict compliance with the Administrative Procedure Act, ante at 312-316, is an independent reason why those regulations do not satisfy the requirements of § 1905, although the agency could rectify this shortcoming.

2. Thus, the courts below must determine on remand whether § 1905 covers the types of information respondents intended to disclose. Disclosure of those documents not covered by § 1905 would, under the Court’s holding, be "in accordance with law." 5 U.S.C. § 706(2)(A).